Monday, February 19, 2018

Oman and the Law of the Sea - Part I

In October 2017, the Sultanate of Oman submitted a formal application to the United Nations to extend its continental shelf. This article is the first in a three part series exploring the Law of the Sea as relevant to Oman, the international legal process involved, and the dynamics behind and potential benefits arising from Oman’s recent application.

Oman’s application, submitted by United Nations Ambassador H E Shaikh Khalifa bin Ali al Harthy, marked the end of a decade-long process of exploration and research culminating in a formal submission to the United Nations Commission on the Limits of the Continental Shelf (the “Commission”), part of the United Nations Division for Ocean Affairs and Law of the Sea. A successful submission would allow Oman to exercise exclusive rights over a large area of seabed in the Arabian Sea, including the right to explore for oil and gas and other non-living resources.

The continental shelf is the underwater, or submarine, portion of a coastal state’s landmass extending to the outer edge of the relevant continent’s limits. The continental shelf falls under each relevant coastal state’s jurisdiction, and these coastal states have exclusive rights to explore and exploit the resources found therein. Coastal states also assume the duty to safeguard the ecosystem of their continental shelf, and an obligation to allow other states to use their shelf for certain purposes that do not diminish its resources, such as the laying of essential pipelines and cables.

The continental shelf is subject to a special international legal regime that has resulted from decades of development in customary international law and treaty law. The need for this legal regime arose at the turn of the 20th century, when the technology developed to enable the exploitation of submarine resources such as oil and gas. These technological advances inspired a spate of claims over seabed territory that had previously belonged to no one in particular, revealing a lacuna in international law. The first clear claim that the resources of the continental shelf belong to the adjacent coastal state is widely attributed to President Harry Truman of the United States in 1945, and over the following decade many states followed suit.

The legal regime governing the continental shelf developed after World War II, evolving through multilateral negotiations under the auspices of the United Nations. The First United Nations Conference on the Law of the Sea was held in 1958 and adopted the Geneva Convention on the Continental Shelf (the “Geneva Convention”). The Geneva Convention solidified the continental shelf regime in international law, but lacked a workable definition of what the continental shelf meant in practice. Ideas for defining the outer limits of the continental shelf were the subject of much debate over the next two decades, and culminated in the 1982 adoption of the UN Convention on the Law of the Sea (the “Law of the Sea Convention”) following the Third United Nations Conference on the Law of the Sea. Today, there are 159 signatories to Law of the Sea Convention. The most important principles however are considered to be customary international law, and thus also binding even on non-parties to the Law of the Sea Convention.

The modern definition of the continental shelf begins with the submarine territory stretching out 200 nautical miles from a state’s coastline (1 nautical mile is 1.852 kilometers). This minimum area coincides with a coastal state’s Exclusive Economic Zone (“EEZ”), and states have rights over living as well as non-living resources in the EEZ. The term “continental shelf” as used in the Law of the Sea Convention has a strictly legal connotation and is used as a juridical term. This is distinct from the geological term, which in scientific literature refers to that part of the continental margin which extends beyond the shoreline where there is no noticeable slope. This is also referred to in the scientific literature as the “natural prolongation” of the continent, and may often be either larger or smaller than the continental shelf as defined in the Law of the Sea Convention.

States that wish to extend the limits of their continental shelf beyond the EEZ must prepare and submit applications to the Commission, just as Oman has done in October 2017. However, any given continental shelf may not extend beyond 350 nautical miles from shore or alternatively, more than 100 nautical miles beyond the point at which the seabed measures at a depth of 2500 meters. The deep ocean floor outside of this maximum area belongs to no state, and as per Article 137 of the Law of the Sea Convention no state may claim jurisdiction over it.

Coastal states seeking to extend the limits of their continental shelf may choose which of these limitations is most advantageous to apply. States must gather and submit to the Commission extensive documentation linking the desired extension of limits to the landmass of the continent comprising the state’s territory. Such submissions set out the coordinates of the outer limits of the relevant continental shelf and are accompanied by technical and scientific data in support of the claim.

Part II of this series will explore the process that states undergo in seeking to extend the limits of their continental shelves, and obstacles they may face along the way. Part III will examine Oman’s submission to the Commission and discuss the potential benefits to Oman of extending its continental shelf.