CONTINENTAL SHELFCONTINENTAL SHELFProf. Dr. Abdul Ghafur HamidProf. Dr. Abdul Ghafur HamidProfessor of LawProfessor of LawInternational Islamic University MalaysiaInternational Islamic University MalaysiaEmail:Email: firstname.lastname@example.org@iiu.edu.my
Introduction: Maritime zonesIntroduction: Maritime zones• Territorial Sea (TS) - 12 nm from thebaselines• Contiguous Zone (CZ) - 24 nm from the baselines• Exclusive Economic Zone(EEZ) - 200 nm from the baselines• Continental Shelf (CS) - Seabed and subsoil of 200nm from the baselines or to the outer edge of thecontinental margin that may extend up to 350 nm orbeyond.• High seas: Sea areas beyond the EEZs of States.
1. THE CONTINENTAL SHELF1. THE CONTINENTAL SHELFDevelopment of the Concept of theContinental Shelf:• Truman proclamation: In 1945, PresidentTruman issued a proclamation that the UShad the exclusive right to exploit thenatural resources of its CS.• The action of the US created a precedentwhich other states followed and thus gaverise to a new rule of customary law.
Natural and legal shelfNatural and legal shelf• Continental shelf in the traditional scientificsense is the “gently sloping submerged landsurrounding the continents and islands”.• Natural continental shelf: the shelf given to acoastal state by nature on the basis of itspeculiar geological situations.[Natural shelf varies in width from less than 5miles to 750 miles]• Legal continental shelf: the shelf allowed by thelaw (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 Statecomprises the sea-bed and subsoil of the sub-marine areas that extend beyond its territorialsea(1) throughout the natural prolongation of itsland territory to the outer edge of the continentalmargin, or(2) to a distance of 200 nautical miles from thebaselines from which the breadth of the territorialsea is measured where the outer edge of thecontinental margin does not extend up to thatdistance.
Minimum limit of the CSMinimum limit of the CS [Art. 76 (1)][Art. 76 (1)]• 200 nautical miles from the baselines isthe minimum limit of the legal continentalshelf allowed to all States regardless ofthe extent of their natural shelf.
Maximum Limits of the CSMaximum Limits of the CSArt. 76(5)Art. 76(5)…[T]he outer limits of the continental shelf…eithershall not exceed 350 nautical miles fromthe baselines from which the breadth ofthe territorial sea is measured orshall not exceed 100 nautical miles fromthe 2,500 metre isobath, which is a lineconnecting the depth of 2,500 metres…
1.2 Rights of the Coastal State1.2 Rights of the Coastal Stateover its Continental Shelfover its Continental Shelf [Art. 77][Art. 77]1 The coastal State exercises over thecontinental shelf sovereign rights for the purposeof exploring it and exploiting its naturalresources….4. The natural resources…consist of the mineraland other non-living resources of the sea-bedand sub-soil together with living organismsbelonging to sedentary species, that is to say,organisms which…either are immobile on orunder the seabed or are unable to move exceptin constant physical contact with the seabed orthe subsoil.
Sedentary speciesSedentary species• The definition given in Article 77 (4) implies thatthose organisms which cannot swim belong tosedentary species. It may include coral, oysters,including pearl oysters, pearl shell, sponges, andplants.• There is some controversy over lobsters andcrabs. According to one view, lobsters swim andcrabs do not and hence crabs are within themeaning and lobsters are not.
Legal status of superjacent waters and airLegal status of superjacent waters and airspace 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 thecontinental shelf do not affect the legal status ofthe superjacent waters or of the air space abovethose waters.2. …• The domain of the CS is seabed and subsoil andnot sea waters.• Superjacent waters within the 200 nautical milesfrom the baselines are the domain of the EEZwhereas those beyond 200 miles are the regimeof 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 artificialislands, including jurisdiction with regard to customs,fiscal, health, safety and immigration laws andregulations.• Due notice must be given;• May establish reasonable safety zones (not exceeding adistance of 500 metres) around such artificial islands,• Artificial islands may not be established whereinterference may be caused to the use of recognized sealanes essential to international navigation.
Drilling on the continental shelfDrilling on the continental shelf[Art. 81][Art. 81]• The coastal State shall have the exclusiveright to authorize and regulate drilling onthe continental shelf for all purposes.
Payments and contributions with respect to the CSPayments and contributions with respect to the CSbeyond 200 nautical milesbeyond 200 nautical miles [Article 82][Article 82]The coastal State shall make payments orcontributions in kind (through the Authority) inrespect of the exploitation of the non-livingresources of the continental shelf beyond200 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 withopposite or adjacent coasts shall be affected byagreement on the basis of international law… inorder to achieve an equitable solution.2. If no agreement can be reached within areasonable period of time, the States concernedshall resort to the procedures provided for inPart 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 dealswith the delimitation of the EEZ.• The advent of the EEZ has encouragedStates to negotiate for ‘single maritimeboundaries’, that is, boundaries whichserve to demarcate two or more maritimezones, including, in some cases, theterritorial sea.
Malaysia’s maritime delimitation withMalaysia’s maritime delimitation withneighbouring countriesneighbouring countries• With Indonesia:(1) Agreement between Malaysia and Indonesiaon the Delimitation of the Continental Shelvesbetween the two countries, 1969 (equidistanceformula)(2) Treaty between Indonesia and Malaysia onthe Delimitation of Boundary Lines of TerritorialWaters of the Two Nations in the Strait ofMalacca, 1970 (equidistance formula).
WithWith IndonesiaIndonesia andand ThailandThailand• Agreement between the Government ofthe Republic of Indonesia, TheGovernment of Malaysia and theGovernment of the Kingdom of ThailandRelating to the Delimitation of theContinental Shelf Boundaries in theNorthern Part of the Strait of Malacca, 21December 1971
With ThailandWith Thailand• Treaty between Thailand and Malaysiarelating to the Delimitation of the TerritorialSeas of the Two Countries, 1979.• Memorandum of Understanding between the K
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 theContinental Shelf and in 1966 Malaysia enacted theContinental Shelf Act on the basis of that Convention.Section 2: “Continental shelf” means the sea-bed andsubsoil of the submarine areas adjacent to the coast ofMalaysia but beyond the limits of the territorialwaters of the states, the surface of which lies at adepth no greater than 200 metres below the surface ofthe sea, or, where the depth of the superjacent watersadmits of the exploitation of the natural resources ofthe said areas at any greater depth.
‘‘Exploitability’ criterion is outdated and may lead toExploitability’ criterion is outdated and may lead touncertaintyuncertainty• 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 isdetermined either in terms of fixed distance (200 milesfrom the baselines) or the outer edge of the continentalmargin.• For States exceptionally endowed by nature, thecontinental shelf can extend right up to 350 miles fromthe baselines or 100 nautical miles from the 2500 metreisobath.
Continental shelf Act needs amendmentContinental shelf Act needs amendment• Malaysia has now become a party to theUNCLOS 1982, which prevails over the 1958Convention [Art. 311(1)], and Malaysia is dutybound to comply with it.• The new definition of the continental shelf underthe UNCLOS can bring greater benefit toMalaysia.• However, the Continental Shelf Act 1966 stillfollows the old and outdated definition of thecontinental shelf without any amendmentwhatsoever.
EEZ Act, 1984EEZ Act, 1984Section 1:(1) This Act shall apply to the EEZ and continentalshelf of Malaysia.(2) The provisions of this Act pertaining to the CSshall be in addition to, and not in derogation of,the Continental shelf Act, 1966.(3) In the event of any conflict or inconsistency, theprovisions of this Act shall supersede.
Section 5.Section 5. Prohibition of activities in the EEZ orProhibition of activities in the EEZ oron the CS except where authorisedon the CS except where authorisedExcept where authorised in accordance withthe provisions of this Act or any applicablewritten law, no person shall in theexclusive economic zone or on thecontinental shelf:(a) explore or exploit any naturalresources, whether living or non-living;(b) conduct any marine scientificresearch.
Section 24. Powers of auuthorised officerSection 24. Powers of auuthorised officerAny authorised officer may, where he has reasonto believe that an offence has been committedunder this Act or such written law, without awarrant:-• stop, board and search any vessel within theexclusive economic zone…;• arrest any person who he has reason to believehas committed any offence under this Act or anywritten law;• detain any vessel, including its cargo, …
Section 25. Hot pursuitSection 25. Hot pursuit(1)Where any authorized officer has reason to believe that aforeign vessel has contravened any provision of this Act orany applicable written law, he may undertake the hot pursuitof such vessel with a view to stopping and arresting it andbringing it within the exclusive economic zone in accordancewith international law.(2) The powers conferred on an authorized officer under section24 shall be exercisable pursuant to this section in respect ofsuch vessel beyond the limits of the exclusive economic zoneto the extent allowed by international law.(3)Except as otherwise provided by any regional or bilateralagreement to which Malaysia is a party, the right of hotpursuit shall cease as soon as the vessel pursued enters theterritorial sea or exclusive economic zone of its own State orany third State.
Malaysian Maritime Enforcement Agency ActMalaysian Maritime Enforcement Agency Act20042004• The Malaysian Maritime Zone is defined as “the internalwaters, territorial sea, continental shelf, exclusive economiczone and the Malaysian fisheries waters and includes the airspace 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 offencewithin the Malaysian Maritime Zone.• The MMEA has powers to perform all these functions and inparticular it has powers: to stop, enter, board, inspect andsearch any place, structure, vessel or aircraft and to detain anyvessel or aircraft; to demand the production of and to inspectany 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 performedwithin the Malaysian Maritime Zone• However, the Agency shall be responsible—(a) for the performance of maritime search andrescue;(b) for controlling and preventing maritimepollution;(c) for preventing and suppressing piracy; and(d) for preventing and suppressing illicit traffic innarcotic drugs,on the high seas.