Introduction
My attention has been drawn to an article credited to Garba Shehu, who was the Senior Special Assistant, Media and Publicity to President Muhammadu Buhari.
In the article Garba Shehu made a fundamental assumption or error that I believe needs to be corrected at no better time than now that Nigerians are becoming more conscious of the potential economic benefits of the maritime entitlement of the country. The recent creation of the Federal Ministry of Marine and Blue Economy and the approval of an extended Continental Shelf (CS) of 20 nautical miles (nm) for Nigeria must be credited for the increased awareness.
Garba Shehu’s article was widely circulated by Garba Shehu and published on online platforms, including the Punch of 29 December, 2023, Prime Business Africa of 29 December, 2023, the News Chronicle of 1 January, 2024. In Mr Shehu’s determination for the article to be widely read, it was again published by the Voice of Nigeria on 2 January, 2024. It is to this one that my attention has been drawn.
False Assumption
In the article, and as its titled suggests, Garba Shehu claimed that “Nigeria gained additional territory without war or conflict, litigation, or purchase, as has never happened before in her lifetime”. If the motive of Garba Shehu was to give credit to Buhari (though history shows that at least three former Presidents deserve to take credit for it), I should suppose he is at liberty to have his say. However, Garba Shehu needs to know that he erred badly on this one.
I recall one of my LLM classes on the law of the sea in 2018, where a similar statement ascribed to Garba Shehu was raised during a discussion on the nature of rights States acquire over the CS. I am sad to recall the time and efforts it took to disabuse the minds of the students of the misleading claim made by Mr. Shahu. I understand that this is not an area he may be vast in, but I can only hope that, going forward, Mr. Garba would be careful enough to check with experts in a field he is not vast in to avoid a situation where he would repeat the same mistake.
It is very alarming to see that Mr. Garba was confident enough to show that Buhari had been misled to make the same error in a speech that might well have been written for him by Mr. Garba Shehu. According to him, President Buhari had said: “I have always had a special interest in this project right from the first day I heard of it because this type of project where Nigeria will gain additional territory without conflict has never happened before in her lifetime. It is pleasing to know that most wars that have taken place in the world since time immemorial including present times, have always been territorial and Nigeria has this one and only chance to gain territory without war, litigation, or purchase”.
I am sorry to disappoint both Mr Shehu and the former President Buhari (respectfully) by assuring them that that day has not come and shall never come that Nigeria’s territory would extend to 220 nm from the relevant baseline. No country is entitled to ascribe the tile of “territory to the continental shelf”. From when the CS was first recognised as a legal concept in a conventional text in the 1958 Convention on the Continental Shelf until the extant regime of the shelf created by the United Nations Convention on the Law of the Sea (UNCLOS), 1982, never has it been accepted that the CS is a territory capable of appropriation or acquisition by war, purchase, discovery or by any other means!
In my earlier intervention on the subject on 21 December, 2023, I made it clear that the only maritime zone a coastal State is entitled to treat as its territory is the territorial sea, which is only 12 nm from the relevant baseline (articles 2 and 3 of the UNCLOS). I would like to recommend both my earlier intervention and the UNCLOS to Mr Garba Shehu.
The Legal Status of the Continental Shelf
Factually speaking, the continental shelf, as understood by geographers and hydrographers is a species of platform physically extending from the territory of coastal States.The scientific concept of the CS is based on the realisation that the bottom of the sea is marked by a sort of great step almost always abrupt, which divides it into two quite distinct regions. The region extending from this step to the coast-line is called the ‘continental shelf’, while the other, much vaster, which extends beyond the continental shelf, is the abysmal region.The latter part is the part now designated as the Area for the benefit of all mankind as the common heritage of mankind (Articles 136 and 140 of the UNCLOS); and precluded from the jurisdiction of any State (articles 1 and 137 of the UNCLOS).
From a scientific viewpoint, therefore, the CS is only a physical fact that is associated with the territory of a coastal State by reason of the geographical configuration of the State’s maritime area, particularly the seabed, as it proceeds towards the deep seabed. This is completely different from the legal concept of the CS, though it bore a definition that was closely related to the scientific understanding by linking it more closely with the geographical configuration of a coastal State when it was first defined in article 1 of the 1958 Continental Shelf Convention.This is not the place to discuss the problems the 1958 definition created, which resulted in the intervention of the International Court of Justice (ICJ) with the concept of natural prolongation in the 1969 North Sea Continental Shelf cases.
Following the extensive discussion of the concept during the negotiation stage of the UNCLOS and the development of customary international law (CIL) in the field, the 1958 definition was partly jettisoned for the extant definition that largely frees itself from geographical configuration of the coastal planes of the coastal State (article 76(1) of the UNCLOS). Unlike the 1958 Convention, the UNCLOS gives 200 nm continental shelf entitlement to each coastal State. The result of this is that, irrespective of the geographical deficiencies or extensiveness of the CS of a coastal State, all States are entitled to a 200nm distance of CS in the first instance.
The UNCLOS however recognises the need to compensate coastal States whose CS entitlement may become shortened should geography be completely jettisoned (article 76(4)). As a result, it recognises, based on the geography of the continental margin of a coastal State, an extended CS, the physical fact of which must be ascertained and confirmed by the Commission on the Limits of the Continental Shelf (CLCS). This, as pointed out in my earlier intervention on the subject, is the reason Nigeria had to go through the CLCS for approval of its entitlement to an extended CS.
The history of the CS shows that one of the controversies that the legal concept of the CS faced was the legal status to be ascribed to it in relation to the sovereignty of coastal States; principally, whether the concept of territory should be ascribed to it and thus reserved exclusively to the use of the coastal State and capable of appropriation The other side of this question was whether all States have equal right and interest in its use. In other words, whether it was capable of appropriation (res nullius) or subject to the common ownership of all States (re communis).
The Rights of a Coastal States over its Continental Shelf vis a vis other States
As confirmed in the UNCLOS, none of these arguments was favoured. Rather, the Convention completely removed the notion of a territory capable of appropriation from the legal conception of the CS and then found a middle ground between limited exclusive use of the zone in favour of coastal States and limited communality of the zone in favour of all States.
This is where article 77 of the UNCLOS comes in to give exclusive rights over the resources of the zone, (only) to coastal States with an unmistakeable exclusion of sovereignty (through acquisition) by article 77(3), which provides that “the rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation”. The only other exclusive right granted coastal states is in article 80, the right to install artificial islands. This obviously questions the assumption of Shehu that a nation may have to go to war to have access to the CS.
To further ring-fence the zone from the sovereignty of any State, article 78 of UNCLOS (compared to its article 2(2)) also confirms the limited rights ascribed to coastal States over the zone. As a further confirmation of the preclusion of sovereignty, as against the holistic rights ascribed to the territorial sea of coastal States, article 78 preserves the rights of all other States (coastal and landlocked) to the use of the superjacent waters over the CS for navigation purposes (and even for the purpose of exploitation and exploration of the resources of the waters in the case of an extended CS that is not coexistent with the Exclusive Economic Zone of the coastal State or of any other State); article 78 also reserves the airspace over the shelf for the use of all States.
For balance, the purposes for which other States are permitted to use the CS of coastal States are clearly spelt out in article 79 of the UNCLOS.
Nigeria has no Territorial Entitlement over her Continental Shelf
Thus, contrary to what Garba Shehu assumes, beyond the territorial sea, neither Nigeria nor any other coastal State has the faculty to claim, as its territory, any zone of the sea that appertains to it by reason of being a coastal State. Undoubtedly, the CS is not capable of appropriation as a territory. What Nigeria has acquired is the right to exploit and explore the resources of the additional 20nm (extended continental shelf) and to create an artificial Island, should it desire to do that. Those are the only rights Nigeria can enjoy to the exclusion of all other States in the zone. Above all, Nigeria still has to make payments to the International Seabed Authority for the resources it takes out of the zone (article 82 of the UNCLOS), unless exempted by article 82(3).
It is even incongruous to reason and antithetical to the weight of sovereignty for a sovereign State to be under obligation to make payments to another entity for use of the sovereign State’s territory or not to have exclusive use of the territory.
Amos O Enabulele is a professor of public international law and director general of the Centre for Community and Oceanic Law
@Centre for Community & Oceanic Law, January, 2024
