Managing Adjacency: Some Legal Aspects of the Relationship Between the Extended Continental Shelf and the International Seabed Area

Abstract The Third United Nations Conference on the Law of the Sea (1973–1982) struck a difficult compromise between the definition of the outer limits of the extended continental shelf (ECS) in relation to the international seabed area (the Area) and the making of payments and contributions by the coastal state in relation to production activities on its ECS in Article 82. The implementation of Article 82 underscores a broader and more far-reaching relationship between the continental shelf, and the ECS in particular, and the Area. In some regions there may be a relationship between the exclusive economic zone and the Area, where there is no ECS. Effectively, the relationship translates into realities and expectations of good neighborliness. This article examines this relationship and the possible approaches for the management of identified challenges. Keywords: the AreaInternational Seabed Authorityouter continental shelf Acknowledgments This article was originally presented at the International Symposium on Scientific and Legal Aspects of the Regimes of the Continental Shelf and the Area in Beijing, convened by the China Institute of Maritime Affairs and the Second Institute of Oceanography, State Oceanic Administration, Beijing, 27–28 May 2010. Notes *Assuming no overlapping opposite state claims or submissions. 1. United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, entered into force 16 November 1994, 1833 U.N.T.S. 397. 2. The Commission on the Limits of the Continental Shelf (CLCS) was established pursuant to Annex II of the LOS Convention, supra note 1. The CLCS Web site is at www.un.org/Depts/los/clcs_new/clcs_home.htm. 3. For a survey of mineral resources and prospects of extended continental shelves around the world, see Non-Living Resources of the Continental Shelf Beyond 200 Nautical Miles: Speculations on the Implementation of Article 82 of the United Nations Convention on the Law of the Sea, ISA Technical Study No. 5 (Kingston, Jamaica: International Seabed Authority, 2010). 4. Projections posted by Douglas-Westwood at www.dw-1.com/shop/shop-infopage.php?longref=502~0. For the detailed report, see The World Deepwater Market Report 2010–2014 (Canterbury: Douglas-Westwood, 2010). 5. For a complete list of submissions, see the CLCS Web site, supra note 2. 6. The LOS Convention, supra note 1, Annex II, Article 4, provides that: “Where a coastal State intends to establish, in accordance with article 76, the outer limits of its continental shelf beyond 200 nautical miles, it shall submit particulars of such limits to the Commission along with supporting scientific and technical data as soon as possible but in any case within 10 years of the entry into force of this Convention for that State.” 7. Ibid., art. 76(9). 8. As of 26 July 2010, out of the 53 submissions only 11 submissions, several of which were partial, had received recommendations from the CLCS. For current information, see the CLCS Web site, supra note 2. 9. For example Canada, which has not yet made a submission, has issued exploration licenses on the ECS in the Atlantic region. The United States, a nonparty, has similarly issued licenses in the ECS in the Gulf of Mexico. See Issues Associated with the Implementation of Article 82 of the United Nations Convention on the Law of the Sea (hereafter Article 82 Report), ISA Technical Study No. 4 (Kingston, Jamaica: International Seabed Authority, 2009), 3–6. 10. LOS Convention, supra note 1, art. 137. 11. Ibid., art. 137(2). 12. Ibid., art. 82. 13. Although not stated in Article 82, the Authority will need to develop the criteria to be applied for the distribution of royalty payments. For example, it will need to rank beneficiaries. See ibid., arts. 82(4) and 162. 14. Article 82 Report, supra note 9, at 21. 15. Ibid. For a review of the negotiation history of Article 82, see Satya N. Nandan and Shabtai Rosenne, eds., United Nations Convention on the Law of the Sea 1982: A Commentary, vol. 2 (Dordrecht: Martinus Nijhoff, 1993), 930–947. 16. Article 82 Report, supra note 9, at 68. 17. A. Chircop and B. Marchand, “International Royalty and Continental Shelf Limits: Emerging Issues for the Canadian Offshore,” Dalhousie Law Journal 26 (2003): 273–302, at 297–298. 18. Article 82 Report, supra note 9, at 51 et seq. 19. Ibid., at 52 et seq. 20. Ibid., at 38. 21. Ibid., at 68. 22. LOS Convention, supra note 1, arts. 160 (Assembly) and 162 (Council). 23. For its part, the Authority will also have to, in consultation with state parties, develop equitable criteria for distribution of benefits and the mode of distribution. For example, there could be agreements between the Authority and eligible beneficiary states for benefits to be transferred and special arrangements for eligible peoples not yet independent. 24. “Report of the Secretary-General of the International Seabed Authority Under Article 166, paragraph 4, of the United Nations Convention on the Law of the Sea,” International Seabed Authority, 16th Session, Kingston, Jamaica, 26 April-7 May 2010, ISBA/16/A/2, 8 March 2010, para. 75. 25. LOS Convention, supra note 1, art. 57. 26. Ibid., art. 76(1). 27. Ibid., art. 87(2). 28. Ibid., art. 147(1). 29. Ibid., art. 146. 30. There are 13 search and rescue areas. Some ECS states, for example, Argentina, Australia, Canada, Chile, the Russian Federation, and Norway, provide SAR services on the high seas adjacent to their maritime zones. See International Aeronautical and Maritime Search and Rescue Manual, 5th ed. (London: International Maritime Organization; Montreal: International Civil Aviation Organization, 2006). 31. LOS Convention, supra note 1, arts. 60 and 147(2). 32. Ibid., art. 147(2). 33. Ibid., art. 147(2)(b). 34. Ibid., art. 147(2)(c). 35. Ibid., art. 147(3). 36. Jacqueline Lang Weaver and David Asmus, “Unitizing Oil and Gas Fields Around the World: A Comparative Analysis of National Laws and Private Contracts,” 2Houston Journal of International Law 28 (2006), available at papers.ssrn.com/sol3/papers.cfm?abstract_id=900645. See also J. C. Woodliffe, “International Unitization of an Offshore Gas Field,” International and Comparative Law Quarterly 26 (1977): 338–353. 37. Lang Weaver and Asmus, supra note 36, at 60. 38. The rule of capture is not a principle or rule of international law. See Dominic Roughton, “The Rights (and Wrongs) of Capture: International Law and the Implications of the Guyana/Suriname Arbitration” (Tokyo: Herbert Smith LLP in association with Gleiss Lutz and Stibbe, undated). 39. Lang Weaver and Asmus explain the international practice of unitization, supra note 36, at 22 et seq. A model agreement produced by the Association of International Petroleum Negotiators is available at www.aipn.org/modelagreements/. 40. Examples of single geological structure clauses, joint development zones, and other cooperative arrangements in maritime boundary delimitation agreements are reproduced in International Maritime Boundaries, vols. I–VI (various editors) (Leiden: Brill, 1993–2011). 41. LOS Convention, supra note 1, art. 142(1). 42. Ibid., art. 142(2). 43. The Authority has a reasonable expectation to be informed, consulted, and invited to cooperate by the ECS state in relation to a nonliving resource straddling the continental shelf and the Area. See Suriname/Guyana Arbitration, Permanent Court of Arbitration (Award), 17 September 2007, available at www.pca-cpa.org/showpage.asp?pag_id=1147. 44. LOS Convention, supra note 1, arts. 194, 208, and 214. 45. Ibid., art. 194(2). This is further developed in Article 194(3)(c) and (d) with reference to installations and devices. 46. Ibid., arts. 145, 209, and 215. The responsibility for the protection of the marine environment in the Area attaches to the Authority (through its regulatory powers) and to states whose vessels, installations, and structures operate in the Area under flags or authority. 47. Ibid., art. 145. See also art. 221. 48. Ibid., art. 142(3). 49. Ibid., art. 139. 50. Ibid., art. 178. 51. Ibid., art. 84(2). See also art. 134(3). 52. Ibid., art. 134(4). 53. Article 82 Report, supra note 9, at 51. 54. LOS Convention, supra note 1, arts. 137(2) and 176. 55. Ibid., art. 160(2)(k). 56. Ibid., art. 162(1). 57. Ibid., art. 162(2)(w). 58. Ibid., art. 155(2).

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