Jonah Onuoha, PhD
Department Of Political Science
University Of Nigeria, Nsukka
The sea has remained an object of intense scramble and competition due to the enormous resources and wealth in the seabed, continental shelves and ocean floor. Incidentally, despite the volume of scholarly writings in the area of international law, very little has been documented about the contributions of developing countries, particularly Nigeria towards the development of the international law (the sea. The article argues that for economic and strategic reasons, Nigeria’s participation in the scramble has been outstanding through various unilateral claims and enactment of maritime laws and decrees.
The sea by its very nature is international and has remained an object of intense competition and scramble among maritime nations at different epochs in history. As Ibeziako (1995) observed, most disputes over the sea concern rights to territorial waters, contiguous fishing and inspection zones, exploitation of the ocean floor, continental shelves and high seas. Incidentally, despite the volume of scholarly writings in the area of international law, very little has been documented about the contribution of developing countries, particularly Nigeria towards the development of international law of the sea. This study has been designed to fill this gap in the literature. The study is therefore unique and fundamental for three interrelated reasons. First, apart from Ok ere 1982, Iluyomade (1981), Akinsanya (1990), Ibeziako (1995) and Obeta (2003), African scholars have deliberately avoided any discussion about ocean politics and the contribution of Nigeria towards the progressive development of international law of the sea. This area cannot be ignored any longer due to the prospects of harvesting enormous natural resource embedded in the seas, particularly, at the seabed and subsoil. This development has given rise to the great “Ocean rush” by the technologically advanced nations reminiscent of the scramble for Africa in the era of imperialism. The question remains what legal frameworks have been put in place by developing countries, such as Nigeria to preserve the resources at the seabed and subsoil for generations yet unborn?
Secondly and perhaps more importantly, by the time the developing countries achieved their flag independence in the 1960s, international law was already well developed. Until recently, it was assumed that since it was Europe that discovered other continents, if law is needed to regulate the various voyages of discovery, Europe should supply such law. Consequently, for nearly 300 years. European scholars and jurists dominated the entire law making and implementation in international system. Until recently, the prevailing doctrine of the law of the sea was “Freedom of the Sea”. Under this doctrine, the technologically advanced coastal states exploited the resources of the developing countries with impunity. The question is, what has the developing countries done to change this trend.
Finally, most of the writings in the area of international law have been done by jurists who focused more on law rather than the political dimension of the issues involved. To worsen the situation, many of them did their analysis without resort to an appropriate theoretical framework. This current effort will be rooted in Marxist political economy due to its analytical adequacy and relevance for explaining the dynamics of the international law of the sea, with particular reference to how it affects the developing countries. In applying the Marxist political economy to the study of the international law of the sea, the face focus of analysis will be on the class character of the international system, the primacy of economic consideration in the law of the sea matters and how the developing countries have been marginalized from the entire process.
To adequately analyze the substantive issues raised in this study, we deliberately partitioned the article into four main sub-sections. In the first section, we critically examined why the sea is an object of scramble, hi section two, a brief history of international law of the sea was presented and the demand for change by developing countries, The contribution of Nigeria towards the progressive development of international law of the sea was presented in section three, while we summarized and concluded in section four.
Why The Sea Is An Object Of Scramble
Our central argument is that the ocean space in recent time has been an object of intense competition and scramble due to the enormous resources and wealth in the deep seabed, continental shelves and ocean floor. This issue will become clearer if it is realized that before 1930, security and navigational issues dominated maritime politics. However, after the league of Nations Conference for the codification of the law of the sea held at the Hague in 1930, economic considerations hinging on the exploitation of the living and non-living resources of the sea, gained pre-eminence.
As Nnalue (2000) observed, this pre-eminence is reflected in the Truman proclamation of 1945 and the resulting spate of national maritime claims, which reached its apogee in 1982 with the Third United Nations Conference on the law of the sea. Iluyomade (1981) has revealed that petroleum reserves in the submerged offshore continental margin extending several hundred nautical miles seaward have been estimated in excess of 2 trillion barrels, recoverable at ever increasing depth and supplying a dramatically rising percentage of the World Oil and gas requirements.
Another recent study has shown that world fish catch quadrupled in a single generation from 16 million tons in 1950 to 69 million tons in 1974, with resulting pressure on fish stock. This justifies the United Nations Food and Agricultural Organization (FAO) recent report that international trade in fishery commodities has exceeded $50 billion a year in recent years and approaching $55 billion a year (Justin 2003).
The United States is the fifth largest fishing nation in the world, with commercial landings of 4.3 billion kilograms valued at $ 3.2 billion in 200 1. As Davies (2003) noted, preventing illegal, unreported and unregulated fishing on the high sea is a daunting task. Vast areas of ocean to monitor, enforcement resource limitations, and the sheer number of fishing vessels plying the seas only make the situation worse.
The result of illegal fishing is further depletion of the world’s fish stock, natural resources, and food reserves. The trends in international fisheries are truly alarming. Notable cases include depletion of bleufin tuna populations worldwide, rampant and often illegal over fishing of Patagonian tooth fish population, and depletion of coastal fish population in some of the poorest regions of the world by distant water vessels from Europe and elsewhere (Scot, 2003).
By F AO estimate, more than 70 percent of those fisheries are depleted or nearly depleted, even as more of the world’s people depend on those fish stock for food and livelihood. Competition between countries over access to fishing grounds has been a source of deadly conflicts, even violence.
Apart from the issues raised above, another study has revealed that in the deep oceans beyond the continental illargin, enormous resources of nickel, cobalt and manganese are found in noodles scattered like potatoes in ocean floor. When manganese nodules were discovered approximately a hundred years ago by the British ship, HMS challenger, not much attention was paid to the “beach rock”. However, in 1958, a study conducted by the institute of marine resources of the University of California revealed the economic importance or the manganese noodles (Payne 1979). Since then, the scramble for the sea has worsened. It has been estimated by Wertenbaker (1979) that there is sufficient copper on the seabed to last the entire world for 6000 years, compared with 40 years on land, and enough nickel to last 150, 000 years as against 100 years on land. In view of this, Nigeria as well as the vast majority of the Third World Countries that belong to the “Group of 77” are extremely concerned about the negative impact deep sea mining will have on their economies, political stability and affluence. This explains why the Third United Nations Conference on the law of the sea was convened. Despite the outcome of the Conference, equity is far from being achieved at the sea. The Third World countries are still complaining because, they cannot compete effectively with the technologically advanced coastal states. This brings in the issue of structural inequality in international system and the politics of who gets what, how and when at the sea.
Third World Demands And The Progressive Development Of The Law Of The Sea
The central argument in this section of the inquiry is that two main factors helped in the progressive development of the law of the sea to its present status. The first was the emergence of new nations from the decline of imperialism in Africa and Latin America and the second was the threat to world peace from the use of the sea, especially, after the possibility of deep sea mining.
The above thesis will become clearer when it is realized that for economic and strategic reasons, maritime nations have at different times in history laid various claims to the vast expanses of the sea. It was to justify these claims that probably forced thel7th century Dutch Scholar, Hugo Grotius to write his magnum Opus titled Mare Liberum (free sea). According to the book, the sea is common to all because it is so limitless that it cannot become a possession of anyone and because it is adapted for the use of all whether we consider it from the point of view of navigation or fisheries.
Three strands of arguments are evident from this passage namely;
1. The seas are not subject to the sovereignty or possession of any individual state or group of states;
2. The seas (with the exception of the narrow belt of territorial sea) arc open to all states for navigation purposes, whether military or commercial;
3. The living resources of the seas are inexhaustible, and exploitation needs neither regulation, restriction nor conservation.
When Hugo Grotius propounded the theory of open sea, technological development was rudimentary and highly mechanized fish factories were nonexistent. At the end of the Second World War, everything changed. The technological advancement in the developed states led to new and more intensive uses of the seas. Infact, technological development made it possible for the developed states to engage in distant water fishing, using highly mechanized fish factory ships and sophisticated solar equipment in tracking fish and. catching them in tons.
The tremendous differences, economic and technological, in the capability of states to utilize the seas and their resources demonstrates the fact that the concept of the freedom of the seas served the interests of a few states at the expense of the vast majority states. To worsen the situation, the increasing pollution from these activities meant the total destruction of the seas in the absence of control and restrictions.
The first leader of the United States Delegation to the 3rd United Nations Conference on the law of the sea summarized the issue as follows:
Through such scientific and technological advances, we have acquired the ability not only to exploit the oceans’ resources much better, but also by over-fishing and pollution, to destroy the ocean’s capacity to sustain life, to waste the mineral potential of the seas and to degrade the marine environment… (State Department Papers,L-2174).
After World War II, the decolonization process gained momentum and produced many new states. These states increased the ranks of the Third World, which rose in challenge of the international maritime law and the concomitant freedom of the seas with a view to changing the law so as to accommodate their needs and interests; and receive a fair share of the ocean resources. With the growth of social and political consciousness among peoples of the Third World, the struggle not only increased in intensity, but also generated policy coherence and collective action ill their maritime diplomacy. To protect their territorial seas and resources at the seabed and sub-soil, the developing countries individually and collectively started to implement measures to preserve these resources. These took the forms of unilateral claims and the support for the development of international law of the sea through the treaty process. For instance, while the west prefers development through the customary process, other nations, especially the Third World defer to treaty process. Specifically, while the west wanted the deep seabed to be a sort of resnullius, the developing countries insisted that it should be regarded as a common patrimony (Nnalue, 2000).During this period, the doctrine of Mare Clausum (close sea) propounded by the English scholar John Selden became popular. Thus, while the theory that territorial sea belongs by right to each coastal state became well established in international law, the size of the breath of the sea was not settled. A 3-mile territorial sea, based on the cannon-shot rule that “State territorial sovereignty” is coterminous with its defensive capability was accepted by many nations. It however was never accepted as universal international law. The Scandinavian countries continued to claim four miles, while the Ottaman Empire and several Mediterranean countries claimed six miles. In 1927, the Soviet Union extended her jurisdiction to 12 miles. As Okere (1988), noted. Other states either refused to recognize the 3-mile limit or made no claims at all.
The Latin American countries were the leading exponents of the 2000 miles “patrimonial” sea movement. Other jurisdictional claims made by states unilaterally include;
i. The promulgation of anti-pollution regulation, with respect to navigation and sea-bed and sub-soil activities, including the right to undertake the physical inspection of vessels suspected to having violated these regulations;
ii The establishment of new and more extensive fishery zones. iii. The assertion of a right to participate in or at least to be notified of the results of marine scientific research, and,
IV. The establishment of200N miles exclusive economic zone (EEZ). At the time the developing countries were taking the above protective unilateral actions, the technologically advanced states, most especially the United States were still asserting their right to exploit the resources of the deep seabed and sub-soil without limitation and control. These conflicting claims and activities had a tremendous negative impact on international commerce, fishing, navigation, scientific research, exploration and exploitation of the resources of the seas.
The desire to resolve this and other issues led to the convening in in!930 the league of Nations Conference in the law of the sea at the Hague. This conference was unsuccessful in codifying the law of the sea, but it performed the useful function of identifying and partially dell liing many of the issues, which featured in later conferences.
By the Mid 1950s, it became increasing clear that the existing international principles governing the scramble for the ocean were no longer capable of effectively guiding conduct on and the use of the sea. Apart from technological innovations coupled with global population explosion, crimes at sea were on the increase. More importantly, incidents of piracy and armed attacks resulting in death of crewmembers made business at the sea a very difficult task (UN 2000). These and other reasons led to the convening of the first of the three conferences on the law of the sea in Geneva in 1958, The conference produced four conventions, dealing respectively with the territorial sea and the contiguous zone, the high sea, fishing and conservation of the living resources of the high seas and the continental shelf.
Two years later, in 1960, the United Nations convened the second conference, which failed to produce an agreement on the breath of the territorial sea and on fishing zones. The Third Conference on the law of the sea opened in 1973 in Caracas, Venezuela. By April 30, 1982, an agreement had been reached and the final text of the new convention was put to vote. As Qbeta, (2000) noted, the vote took place at the headquarters of the United Nations in New York and involved more than 160 countries from all regions of the world. The convention was adopted with 130 countries voting in favour, 4 against and 17 abstaining. On the 10th of December the same year, the convention was open for signature at Montego Bay, Jamaica and received a record number of 119 signatories on the first day. Nigeria ratified this treaty on the 14lh August 1986. The United Nations convention on the law of the sea entered into force on 16lh November 1994.Today, the convention is fast approaching universal participation with 138 countries, including the European Union.
The Pardo Declaration
The growing concern of the international community, particularly the Third World countries, about the unregulated, uncontrolled and unrestricted use of the sea and the exploitation of the resources was articulated by Ambassador Arrid Pardo at the 22 session of the General Assembly in 1967.
Mr. Pardo proposed international action to regulate the uses of the seabed and to ensure that the area’s exploitation would be for peaceful purposes only and for the benefit of all mankind. Specifically, the Pardo memorandum stated as follows; first that the seabed and the ocean floor beyond the limits of national jurisdiction were not subject to national appropriation; second, that the exploitation of the seabed and the ocean 11001 shall be undertaken in a manner consistent with the principles and purposes of the United Nations; third that the exploitation of the seabed and the ocean floor shall be done so that the financial benefits will accrue to promote the development of poor countries; and fourth, that the seabed and ocean floor beyond the limits of national jurisdiction shall be reserved in perpetuity for peaceful purposes (Akinsanya 1990).
Based on the Pardo declaration, the General Assembly on December 18, 1967 passed Resolution 2340 (the famous Pardo Resolution) which established a thirty-five-member ad hoc committee to study the peaceful uses of the ocean floor beyond the limits of national jurisdiction. This committee later grew in membership to ninety-one over a five-years period and was converted into a standing committee which was a preparatory committee for third United Nations Conference on the law of the sea (UNCLOS III).
The chairman of the committee was Ambassador Shirley Amerasinghe of Sri Lanka; who later became the president of UNCLO III. On December 1970, and by a vote of 108-0-14, the General Assembly passed Resolution 2749 which decaled inter-alia, first;
That seabed and the ocean floor and the sub-soil thereof beyond the limits of national jurisdiction, as well as the resources of the sea, are the common heritage of mankind and second, that. The area shall not be subject to appropriation by any means by states or persons, national or juridical, and no state shall claim or exercise sovereign rights over any part thereof.
These resolutions laid the substantive bases for convening of UNCLOS III.
Nigeria and The Scramble For The Sea
There is no doubt that Nigeria has participated actively in the scramble for the sea. Three reasons account for this. First, Nigeria sits atop the Atlantic Ocean on the west coast of Africa and enjoys a coastline of 415 nautical miles from Lagos to Calabar (Obeta, 2003). Secondly and perhaps more importantly, Nigeria is a signatory to the 1982 convention of the United Nations Conference on the law of the sea, which she ratified on 14′ August 1986. Finally, Nigeria is a member of the independence in community. Since she attained her political independence in 1960, the country has been struggling to protect her territorial sea from plunder by the technologically advanced countries.
For economic and strategic reasons, Nigeria participated actively during the third United Nations Conference on the law of the sea. Nigeria’s position on the third law of the sea conference was stated by the former Attorney General, Mr. A. Nnamani, at a press conference in Lagos on August 21, 1978. On the issue of Exclusive Economic Zone (EEZ), Nigeria’s position was that of 12 nautical mile territorial sea, and a continental shelf whose greatest extent should be 200N miles, same as EEZ.
On the right of the land-locked and geographically disadvantaged states to share in the resources of the EEZ, Nigeria was of the view that such states can only share in the surplus of the total allowable catch (TAC) of living resources. This is however dependent on the coastal state’s determination of the maximum sustainable yield (MSY) in the EEZ. Nigeria has emphatically stated that other states have 110 businesses with the living resources of the EEZ.
On seabed mining of resources in the outer seas – the common heritage of mankind – Nigeria maintains that the system of exploration and exploitation, the resource policy and production control, should have in-built checks that would ensure non-flooding of the market to the extent that they would injure developing countries who produce similar resources Oil land or try to drive them out of the market.
On the structure of the organs of the authority that would manage the common heritage of mankind, Nigeria maintains that power and functions si 1 Quid be such that the interest of the developing countries are guaranteed, and their voices heard in the determination of policies relating to the sea-bed mining.
Specifically, Nigeria’s contribution towards the development of the international law of the sea will be examined under the following issue areas: (a) The territorial sea, (b) Pollution of the high sea, (c) The continental shelf and (d) The exclusive economic zone EEZ.
Due to the fact that the 1958 Geneva Convention on the territorial sea and contiguous zone did not clearly stipulate the breath of the territorial sea, different states made different claims.
In 1967, Nigeria made a unilateral claim of 12 nautical miles through the territorial waters act of 1967. The decree stated as follows:
The territorial waters of Nigeria shall for all purposes include every part of the open sea within twelve nautical miles of the coast of Nigeria (measured from the low water mark) of the seaward limit of inland water.
In line with the 1958 convention, the Act Vests Nigerian courts with the jurisdiction to try any offence committed within the Nigerian territorial waters and to punish the offender as if he had committed the act in Nigeria. This applies whether or not the act or omission in question is committed on board or by means of a ship, or in, on or by means of structures resting on the seabed or subsoil.
Four years later, Nigeria’s territorial water was further extended to thirty nautical miles through the Territorial Waters (Amendment) Act of 1971.
Pollution Of The High Sea
Nigeria is a party to a number of multilateral conventions on pollution of the sea concluded under the auspices of the International Maritime Consultative Organization (IMCO), now called the International Maritime Organization (IMO). These conventions include the 1954 convention for the prevention of pollution of the sea by oil and the 1972 convention on the prevention of maritime pollution by Dumping of Wastes and other matters.
The 1954 convention prohibits the discharge from any tanker, being a ship to which the convention appliers, of oil or any other mixture which fouls the surface of the sea. The prohibition relates to discharge within prohibited zone, which is defined to be within fifty miles from land.
These obligations have been implemented at the local level by the enactment in Nigeria of the oil in Navigable Water Act 1968. Section I of the Act makes it an offence for oil to be discharged from a Nigerian ship into the prohibited zone, which is fifty miles from land and outside the territorial waters of Nigeria. It is also an offence to discharge oil from any vessel or from any place on land or from any apparatus used for transferring oil into the territorial waters and inland waters which are navigable by sea-going ship.
The Exclusive Economic Zone (Eez)
The origin of the concept of the EEZ in international law is controversial. Elias (1979) and Rembe (1980) attribute its origin to African Practice, while Parkinson (1985) and Garcia-Amador (1984) trace the evolution to Latin America. Some writers like Barabolia insist that the idea of economic zone was actually born in the struggle of developing nations “to establish a new economic order in international relations”. Others like Churchill and Low (1988), while recognizing the aspiration of Third World countries for economic development, see EEZ as a compromise between those states that claimed a 200-mile territorial sea and those developed states that were hostile to extended coastal state jurisdiction. Whatever the case, the EEZ is one important dimension in the Third World’s struggle for a new legal order of the ocean.
Even before 1982 when the convention on the EEZ was adopted by the United Nations, Nigeria had already started to comply with its provisions. In article 56, the jurisdiction exercisable by the coastal states in the EEZ area appertains only to the resources of the zone, but not to the zone itself.
In compliance with the relevant provisions of this convention, Nigeria enacted the Exclusive Economic Zone Decree of 1978. This Act made provisions for the exclusive economic zone of the Federal Republic of Nigeria. Under the Nigerian Economic Zone Act, the exclusive economic zone was defined as an area extending from the external limits of the territorial waters up to a distance of two hundred nautical miles from the baselines from which the breath of the territorial water is measured.
It has been argued that Nigeria’s declaration or the 200 nautical miles of exclusive economic zone (EEZ) came rather too late since Nigeria was a party to and a host of the 1972 Asian-African legal consultative committee at Lagos, where the concept was formulated. In fact, other African countries .had made some forms of radical claims before Nigeria joined the scramble. For instance, in 1975, Angola declared a 200 nautical mile EEZ, Gabon had declared 100 N mile territorial sea in 1972, Ghana, 130 Nautical mile fishing zone in 1972, both Guinea Bissau and Senegal declared 150N miles territorial sea in 1974 and 1976 respectively.
The 1978 Decree, among other things provided
1. The 200N miles breathe for the EEZ,
2. That the delimitation between Nigeria and neighbouring littoral states shall be by the medium or equidistance line, and
3. Nigeria’s sovereign and exclusive rights over exploitation and exploration of all natural resources of the sea-bed, sub-soil and super-adjacent waters.
It is important to note that ooth the principle of territorial waters and the exclusive economic zone, and the question of who controls them are fully enshrined in the 1979 constitution of the Federal Republic of Nigeria. Section 40 (3) clearly vested on the Federal Government the powers to control all minerals, mineral oils, and natural gas in, under, or upon any land in Nigeria or in, under, or upon the territorial waters and the exclusive economic zone of Nigeria. Items 28, 35, and 37 of the Exclusive legislative list in the second schedule aptly stated that fisheries, marine shipping and navigation and mines and minerals are vested in the Federal Government.
It is evident from the analysis so far that Nigeria has contributed both directly and indirectly towards the development of International law of the sea through various unilateral claims and the enactment of strategic maritime laws and decrees. These gains cannot be sustained unless adequate arrangement is made for the enhancement of Nigerian Navy’s capability to monitor and protect Nigeria’s territorial waters, particularly, the exclusive economic zone and the contiguous fishing and inspection zones.
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