CONTINENTAL SHELFCONTINENTAL SHELF

Prof. Dr. Abdul Ghafur HamidProf. Dr. Abdul Ghafur HamidProfessor of LawProfessor of Law

International Islamic University MalaysiaInternational Islamic University MalaysiaEmail: Email: ghafur@iiu.edu.myghafur@iiu.edu.my

Introduction: Maritime zonesIntroduction: Maritime zones

• Territorial Sea (TS) - 12 nm from the baselines • Contiguous Zone (CZ) - 24 nm from the baselines• Exclusive Economic Zone (EEZ) - 200 nm from the baselines• Continental Shelf (CS) - Seabed and subsoil of 200

nm from the baselines or to the outer edge of the continental margin that may extend up to 350 nm or beyond.

• High seas: Sea areas beyond the EEZs of States.

1. THE CONTINENTAL SHELF1. THE CONTINENTAL SHELF

Development of the Concept of the Continental Shelf:

• Truman proclamation: In 1945, President Truman issued a proclamation that the US had the exclusive right to exploit the natural resources of its CS.

• The action of the US created a precedent which other states followed and thus gave rise to a new rule of customary law.

Natural and legal shelfNatural and legal shelf

• Continental shelf in the traditional scientific sense is the “gently sloping submerged land surrounding the continents and islands”.

• Natural continental shelf: the shelf given to a coastal state by nature on the basis of its peculiar geological situations.

[Natural shelf varies in width from less than 5 miles to 750 miles]

• Legal continental shelf: the shelf allowed by the law (UNCLOS 1982).

Definition of the CS:Definition of the CS:UNCLOS 1982UNCLOS 1982 [Art. 76(1)][Art. 76(1)]

The continental shelf of a coastal State comprises the sea-bed and subsoil of the sub-marine areas that extend beyond its territorial sea

(1) throughout the natural prolongation of its land territory to the outer edge of the continental margin, or

(2) to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

Minimum limit of the CSMinimum limit of the CS [Art. 76 (1)][Art. 76 (1)]

• 200 nautical miles from the baselines is the minimum limit of the legal continental shelf allowed to all States regardless of the extent of their natural shelf.

Maximum Limits of the CSMaximum Limits of the CS

Art. 76(5)Art. 76(5)

…[T]he outer limits of the continental shelf…either

shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or

shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres…

1.2 Rights of the Coastal State1.2 Rights of the Coastal State over its Continental Shelf over its Continental Shelf [Art. 77][Art. 77]

1 The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources….

4. The natural resources…consist of the mineral and other non-living resources of the sea-bed and sub-soil together with living organisms belonging to sedentary species, that is to say, organisms which…either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.

Sedentary speciesSedentary species

• The definition given in Article 77 (4) implies that those organisms which cannot swim belong to sedentary species. It may include coral, oysters, including pearl oysters, pearl shell, sponges, and plants.

• There is some controversy over lobsters and crabs. According to one view, lobsters swim and crabs do not and hence crabs are within the meaning and lobsters are not.

Legal status of superjacent waters and air Legal status of superjacent waters and air space and rights and freedoms of other Statesspace and rights and freedoms of other States

[Art. 78][Art. 78]

1. The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters.

2. …• The domain of the CS is seabed and subsoil and

not sea waters.• Superjacent waters within the 200 nautical miles

from the baselines are the domain of the EEZ whereas those beyond 200 miles are the regime of the high seas.

Artificial islands, installations and structuresArtificial islands, installations and structures

[Art. 80][Art. 80] [Same as Art. 60, EEZ][Same as Art. 60, EEZ]

On the CS, the coastal State:• Shall have exclusive right to construct artificial islands,

installations and structures;• Shall have exclusive jurisdiction over such artificial

islands, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations.

• Due notice must be given;• May establish reasonable safety zones (not exceeding a

distance of 500 metres) around such artificial islands,• Artificial islands may not be established where

interference may be caused to the use of recognized sea lanes essential to international navigation.

Drilling on the continental shelfDrilling on the continental shelf[Art. 81][Art. 81]

• The coastal State shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes.

Payments and contributions with respect to the CS Payments and contributions with respect to the CS beyond 200 nautical milesbeyond 200 nautical miles [Article 82] [Article 82]

The coastal State shall make payments or contributions in kind (through the Authority) in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles from the baselines.

1.3 Delimitation of the CS1.3 Delimitation of the CSUNCLOS 1982 [Art. 83]UNCLOS 1982 [Art. 83]

1. The delimitation of the CS between States with opposite or adjacent coasts shall be affected by agreement on the basis of international law… in order to achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV [on the settlement of disputes].

To negotiate for ‘single maritime boundaries’To negotiate for ‘single maritime boundaries’

• Art. 83 is identical with Art. 74 which deals with the delimitation of the EEZ.

• The advent of the EEZ has encouraged States to negotiate for ‘single maritime boundaries’, that is, boundaries which serve to demarcate two or more maritime zones, including, in some cases, the territorial sea.

Malaysia’s maritime delimitation with Malaysia’s maritime delimitation with neighbouring countriesneighbouring countries

• With Indonesia:

(1) Agreement between Malaysia and Indonesia on the Delimitation of the Continental Shelves between the two countries, 1969 (equidistance formula)

(2) Treaty between Indonesia and Malaysia on the Delimitation of Boundary Lines of Territorial Waters of the Two Nations in the Strait of Malacca, 1970 (equidistance formula).

With With IndonesiaIndonesia and and ThailandThailand

• Agreement between the Government of the Republic of Indonesia, The Government of Malaysia and the Government of the Kingdom of Thailand Relating to the Delimitation of the Continental Shelf Boundaries in the Northern Part of the Strait of Malacca, 21 December 1971 

With ThailandWith Thailand

• Treaty between Thailand and Malaysia relating to the Delimitation of the Territorial Seas of the Two Countries, 1979.

• Memorandum of Understanding between the Kingdom of Thailand and Malaysia on the delimitation of the continental shelf boundary between the two countries in the Gulf of Thailand

1.4 Continental Shelf of Malaysia1.4 Continental Shelf of Malaysia[Continental Shelf Act, 1966][Continental Shelf Act, 1966]

Malaysia is a State party to the 1958 Convention on the Continental Shelf and in 1966 Malaysia enacted the Continental Shelf Act on the basis of that Convention.

Section 2: “Continental shelf” means the sea-bed and subsoil of the submarine areas adjacent to the coast of Malaysia but beyond the limits of the territorial waters of the states, the surface of which lies at a depth no greater than 200 metres below the surface of the sea, or, where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas at any greater depth.

‘‘Exploitability’ criterion is outdated and may lead to Exploitability’ criterion is outdated and may lead to uncertaintyuncertainty

• Like the 1958 convention, the CS Act mainly adopts the ‘exploitability’ criterion.

• The UNCLOS 1982 no longer speaks of “exploitability” criterion which is outdated and may lead to uncertainty.

• The continental shelf according to the UNCLOS 1982 is determined either in terms of fixed distance (200 miles from the baselines) or the outer edge of the continental margin.

• For States exceptionally endowed by nature, the continental shelf can extend right up to 350 miles from the baselines or 100 nautical miles from the 2500 metre isobath.

Continental shelf Act needs amendmentContinental shelf Act needs amendment

• Malaysia has now become a party to the UNCLOS 1982, which prevails over the 1958 Convention [Art. 311(1)], and Malaysia is duty bound to comply with it.

• The new definition of the continental shelf under the UNCLOS can bring greater benefit to Malaysia.

• However, the Continental Shelf Act 1966 still follows the old and outdated definition of the continental shelf without any amendment whatsoever.

EEZ Act, 1984EEZ Act, 1984

Section 1:

(1) This Act shall apply to the EEZ and continental shelf of Malaysia.

(2) The provisions of this Act pertaining to the CS shall be in addition to, and not in derogation of, the Continental shelf Act, 1966.

(3) In the event of any conflict or inconsistency, the provisions of this Act shall supersede.

Section 5. Section 5. Prohibition of activities in the EEZ or Prohibition of activities in the EEZ or on the CS except where authorisedon the CS except where authorised

Except where authorised in accordance with the provisions of this Act or any applicable written law, no person shall in the exclusive economic zone or on the continental shelf:

(a) explore or exploit any natural resources, whether living or non-living;

(b) conduct any marine scientific research.

Section 24.    Powers of auuthorised officerSection 24.    Powers of auuthorised officer

Any authorised officer may, where he has reason to believe that an offence has been committed under this Act or such written law, without a warrant:-

• stop, board and search any vessel within the exclusive economic zone…;

• arrest any person who he has reason to believe has committed any offence under this Act or any written law;

• detain any vessel, including its cargo, …

Section 25. Hot pursuitSection 25. Hot pursuit

(1)Where any authorized officer has reason to believe that a foreign vessel has contravened any provision of this Act or any applicable written law, he may undertake the hot pursuit of such vessel with a view to stopping and arresting it and bringing it within the exclusive economic zone in accordance with international law.

(2) The powers conferred on an authorized officer under section 24 shall be exercisable pursuant to this section in respect of such vessel beyond the limits of the exclusive economic zone to the extent allowed by international law.

(3)Except as otherwise provided by any regional or bilateral agreement to which Malaysia is a party, the right of hot pursuit shall cease as soon as the vessel pursued enters the territorial sea or exclusive economic zone of its own State or any third State.

Malaysian Maritime Enforcement Agency Act Malaysian Maritime Enforcement Agency Act

20042004 • The Malaysian Maritime Zone is defined as “the internal waters,

territorial sea, continental shelf, exclusive economic zone and the Malaysian fisheries waters and includes the air space over the Zone”.

• The functions of the MMEA includes (1) to enforce law and order under any Federal law; (2) to perform maritime search and rescue; and (3) to prevent and suppress the commission of an offence within the

Malaysian Maritime Zone.• The MMEA has powers to perform all these functions and in

particular it has powers: to stop, enter, board, inspect and search any place, structure, vessel or aircraft and to detain any vessel or aircraft; to demand the production of and to inspect any licence, permit, record, certificate or any other document; and to exercise the right of hot pursuit.

MMEA has powers to function on the high seasMMEA has powers to function on the high seas

• The functions of the Agency shall be performed within the Malaysian Maritime Zone

• However, the Agency shall be responsible— (a) for the performance of maritime search and

rescue;(b) for controlling and preventing maritime pollution;(c) for preventing and suppressing piracy; and(d) for preventing and suppressing illicit traffic in narcotic drugs,

on the high seas.

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