AN APPRAISAL OF LEGAL AND INSTITUTIONAL FRAMEWORK ON MARITIME LAW IN NIGERIA
ABSTRACT Nigeria has a land area of 923,768.64 square kilometers, with a coastline of over 823 kilometres and navigable inland waterways of about 4,000 kilometres. These confer on Nigeria great potentials. To what extent these potentials have been tapped for productivity and nation building would be appraised considering the attendant issues and challenges faced by the co-ordinating and regulating bodies. The research discusses the development of maritime industry in Nigeria with focus towards development, structural formation, legal and institutional framework, capacity building and cabotage and the role of the Nigerian Maritime and Administration and Security Agency (NIMASA). It also examines some challenges faced by cor-ordinating and regulating bodies such as enforcement policies as well as issues attendant in the industry are discussed briefly. Again, it takes a look at the United Nations Convention on the Law of the Sea (UNCLOS), which provides the foundation for an effective regional maritime regime. However, this large and complex convention is not without its limitations. There are many examples of apparent non-compliance with its norms and principles. The root causes of these problems as discussed by this research lies in basic conflicts of interest between countries on the law of the sea issues, the built-in ambiguity of UNCLOS in several regimes, and the geographical complexity of the coastal and landlocked regions in particular. The research posits that the law of the seas, maritime, etc. between countries should be harmonized to avoid conflicts of laws that often affect the maritime industries generally.
1.1 Background to the Study
The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which took place between 1973 and 1982. The Law of the Sea Convention defines the rights and responsibilities of nations with respect to their use of the world’s oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. The Convention, concluded in 1982, replaced four 1958 treaties. UNCLOS came into force in 1994, a year after Guyana became the 60th nation to sign the treaty.1 As of January 2015, 166 countries and the European Union have joined in the Convention. However, it is uncertain as to what extent the Convention codifies customary international law. While the Secretary General of the United Nations receives instruments of ratification and accession and the UN provides support for meetings of states party to the Convention, the UN has no direct operational role in the implementation of the Convention. There is, however, a role played by organizations such as the International Maritime Organization, the International Whaling Commission, and the International Seabed Authority (ISA). (The ISA was established by the UN Convention.)
The UNCLOS replaces the older and weaker ‘freedom of the seas’ concept, dating from the 17th century: national rights were limited to a specified belt of water extending from a nation’s coastlines, usually three nautical miles, according to the ‘cannon shot’ rule developed by
1 “The United Nations Convention on the Law of the Sea (A historical perspective)”. United Nations Division for Ocean Affairs and the Law of the Sea. Retrieved 30 April 2009.
the Dutch jurist Cornelius van Bynkershoek.2 All waters beyond national boundaries were considered international waters: free to all nations, but belonging to none of them (the mare liberum principle promulgated by Grotius). In the early 20th century, some nations expressed their desire to extend national claims: to include mineral resources, to protect fish stocks, and to provide the means to enforce pollution controls. (The League of Nations called a 1930 conference at The Hague, but no agreements resulted.) Using the customary international law principle of a nation’s right to protect its natural resources, President Trumanin 1945 extended United States control to all the natural resources of its continental shelf. Other nations were quick to follow suit. Between 1946 and 1950, Chile, Peru, and Ecuador extended their rights to a distance of 200 nautical miles (370 km) to cover their Humboldt Current fishing grounds. Other nations extended their territorial seas to 12 nautical miles (22 km).
By 1967, only 25 nations still used the old 3-mile (4.8 km) limit,3 while 66 nations had set a 12-nautical-mile (22 km) territorial limit and eight had set a 200-nautical-mile (370 km) limit. As of 28 May 2008, only two countries still use the 3-mile (4.8 km) limit: Jordan and Palau.4 That limit is also used in certain Australian islands, an area of Belize, some Japanese straits, certain areas of Papua New Guinea, and a few British Overseas Territories, such as Anguilla.
2 “United Nations Convention on the Law of the Sea”. United Nations Treaty Series. Retrieved 2013-12-01. 3 “Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements”. United Nations Division for Ocean Affairs and the Law of the Sea. 8 January 2010. Retrieved 2010-02-24. 4 “Table of claims to maritime jurisdiction”(PDF). United Nations Division for Ocean Affairs and the Law of the Sea. Retrieved 1 April, 2016.
UNCLOS I In 1956, the United Nations held its first Conference on the Law of the Sea ( UNCLOS I) at Geneva, Switzerland. UNCLOS I resulted in four treaties concluded in 1958:
a. Convention on the Territorial Sea and Contiguous Zone, entry into force: 10 September 1964
b. Convention on the Continental Shelf, entry into force: 10 June 1964
c. Convention on the High Seas, entry into force: 30 September 1962
d. Convention on Fishing and Conservation of Living Resources of the High Seas, entry into force: 20 March 1966
Although UNCLOS I was considered a success, it left open the important issue of breadth of territorial waters.5 UNCLOS II In 1960, the United Nations held the second Conference on the Law of the Sea (“UNCLOS II”); however, the six-week Geneva conference did not result in any new agreements. Generally speaking, developing nations and third world countries participated only as clients, allies, or dependents of the United States or the Soviet Union, with no significant voice of their own. UNCLOS III
The issue of varying claims of territorial waters was raised in the UN in 1967 by Arvid Pardo, of Malta, and in 1973 the Third United Nations Conference on the Law of the Sea was convened in New York. In an attempt to reduce the possibility of groups of nation-states dominating the negotiations, the conference used a consensus process rather than majority vote.
5 Thomas E.B. (1978). “The Seizure and Recovery of the S.S. Mayaguez: Legal Analysis of United States Claims”, Part 1 (PDF).Military Law Review(Department of the Army)82: 114–121. ISSN 0026-4040. Retrieved 21 April, 2016.
With more than 160 nations participating, the conference lasted until 1982. The resulting convention came into force on 16 November 1994, one year after the sixtieth state, Guyana, ratified the treaty. The convention introduced a number of provisions. The most significant issues covered were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones(EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of disputes. The convention set the limit of various areas, measured from a carefully defined baseline. (Normally, a sea baseline follows the low-water line, but when the coastline is deeply indented, has fringing islands or is highly unstable, straight baselines may be used.) The areas are as follows:
Internal Waters: Covers all water and waterways on the landward side of the baseline. The coastal state is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage within internal waters. Territorial Waters: Out to 12 nautical miles (22 kilometres; 14 miles) from the baseline, the coastal state is free to set laws, regulate use, and use any resource. Vessels were given the right of innocent passage through any territorial waters, with strategic straits allowing the passage of military craft as transit passage, in that naval vessels are allowed to maintain postures that would be illegal in territorial waters. “Innocent passage” is defined by the convention as passing through waters in an expeditious and continuous manner, which is not “prejudicial to the peace, good order or the security” of the coastal state. Fishing, polluting, weapons practice, and spying are not “innocent”, and submarines and other underwater vehicles are required to navigate on the
surface and to show their flag. Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is essential for the protection of its security.
Archipelagic Waters: The convention set the definition of Archipelagic States in Part IV, which also defines how the state can draw its territorial borders. A baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another. All waters inside this baseline are designated Archipelagic Waters. The state has sovereignty over these waters (like internal waters), but subject to existing rights including traditional fishing rights of immediately adjacent states.6 Foreign vessels have right of innocent passage through archipelagic waters (like territorial waters).
Contiguous Zone: Beyond the 12-nautical-mile (22 km) limit, there is a further 12 nautical miles (22 km) from the territorial sea baseline limit, the contiguous zone, in which a state can continue to enforce laws in four specific areas: customs, taxation, immigration and pollution, if the infringement started within the state’s territory or territorial waters, or if this infringement is about to occur within the state’s territory or territorial waters.7 This makes the contiguous zone a hot pursuit area.
Exclusive Economic Zones (EEZs): These extend from the edge of the territorial sea out to 200 nautical miles (370 kilometres; 230 miles) from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. In casual use, the term may include the territorial sea and even the continental shelf. The EEZs were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important. The success of an offshore oil platform in the Gulf of Mexico in 1947 was soon repeated elsewhere in the world,
6 “UNCLOS 3 Article 51”. United Nations Division for Ocean Affairs and Law of the Sea. Retrieved 29 March 2016. 7 “Section 4. Contiguous Zone, Article 33”. UNCLOS Part II – Territorial Sea And Contiguous Zone. United Nations. Retrieved 2012-01-19.
and by 1970 it was technically feasible to operate in waters 4000 metres deep. Foreign nations have the freedom of navigation and over flight, subject to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables. Continental Shelf: The continental shelf is defined as the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles (370 km) from the coastal state’s baseline, whichever is greater. A state’s continental shelf may exceed 200 nautical miles (370 km) until the natural prolongation ends. However, it may never exceed 350 nautical miles (650 kilometres; 400 miles) from the baseline; or it may never exceed 100 nautical miles (190 kilometres; 120 miles) beyond the 2,500 meter isobaths (the line connecting the depth of 2,500 meters). Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others. Coastal states also have exclusive control over living resources “attached” to the continental shelf, but not to creatures living in the water column beyond the exclusive economic zone.
Aside from its provisions defining ocean boundaries, the convention establishes general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas, and also creates an innovative legal regime for controlling mineral resource exploitation in deep seabed areas beyond national jurisdiction, through an International Seabed Authority and the Common heritage of mankind principle.8 Land locked states are given a right of access to and from the sea, without taxation of traffic through transit states.9
8 Jennifer F. (2003), The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Nations Reach a Compromise? Wisconsin International Law Journal. 21:409 9 This is a principle that was first developed in the Convention on Transit Trade of Land-locked States.
Part XI and the 1994 Agreement Part XI of the Convention provides for a regime relating to minerals on the seabed outside any state’s territorial waters or EEZ (Exclusive Economic Zones). It establishes an International Seabed Authority (ISA) to authorize seabed exploration and mining and collect and distribute the seabed mining royalty. The United States objected to the provisions of Part XI of the Convention on several grounds, arguing that the treaty was unfavorable to American economic and security interests. Due to Part XI, the United States refused to ratify the UNCLOS, although it expressed agreement with the remaining provisions of the Convention. From 1983 to 1990, the United States accepted all but Part XI as customary international law, while attempting to establish an alternative regime for exploitation of the minerals of the deep seabed. An agreement was made with other seabed mining nations and licenses were granted to four international consortia. Concurrently, the Preparatory Commission was established to prepare for the eventual coming into force of the Convention-recognized claims by applicants, sponsored by signatories of the Convention. Overlaps between the two groups were resolved, but a decline in the demand for minerals from the seabed made the seabed regime significantly less relevant. In addition, the decline of Socialism and the fall of Communism in the late 1980s had removed much of the support for some of the more contentious Part XI provisions.
In 1990, consultations were begun between signatories and non-signatories (including the United States) over the possibility of modifying the Convention to allow the industrialized countries to join the Convention. The resulting 1994 Agreement on Implementation was adopted as a binding international Convention. It mandated that key articles, including those on limitation of seabed production and mandatory technology transfer, would not be applied, that the United
States, if it became a member, would be guaranteed a seat on the Council of the International Seabed Authority, and finally, that voting would be done in groups, with each group able to block decisions on substantive matters. The 1994 Agreement also established a Finance Committee that would originate the financial decisions of the Authority, to which the largest donors would automatically be members and in which decisions would be made by consensus.
On 1 February 2011, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion concerning the legal responsibilities and obligations of States Parties to the Convention with respect to the sponsorship of activities in the Area in accordance with Part XI of the Convention and the 1994 Agreement. The advisory opinion was issued in response to a formal request made by the International Seabed Authority following two prior applications the Authority’s Legal and Technical Commission had received from the Republics of Nauru and Tonga regarding proposed activities (a plan of work to explore for polymetallic nodules) to be undertaken in the Area by two State-sponsored contractors – Nauru Ocean Resources Inc. (sponsored by the Republic of Nauru) and Tonga Offshore Mining Ltd. (sponsored by the Kingdom of Tonga). The advisory opinion set forth the international legal responsibilities and obligations of Sponsoring States AND the Authority to ensure that sponsored activities do not harm the marine environment, consistent with the applicable provisions of UNCLOS Part XI, Authority regulations, ITLOS case law, other international environmental treaties, and Principle 15 of the UN Rio Declaration.10
10 Case No. 17 – Responsibilities and Obligations of States Sponsoring Persons and Entities With Respect to Activities in the Area – Advisory Opinion, Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (1 February 2011).
1.2 Statement of the Problem This research envisaged the following problems: For disputes with regards to the exercise of jurisdiction by coastal states in their EEZ, concerning fisheries, marine scientific research and pollution, the convention seems to prescribe recourse to settlement by special arbitration. Disputes arising out of the administration of sea-bed exploitation are to be referred to ITLOS Sea-Bed Dispute Chamber, while disputes on marine boundaries are to be settled by arbitration.
However, most of the existing local legislation regarding the maritime zones have not been amended to reflect the acceptance of the new regime of the law of the sea. For example, Decree No. 38 of 1971, extended Nigerians territorial waters thirty nautical miles of the coast of Nigeria, thereby altering the 12 miles limit set in the Interpretation Act 1964.11
Despite the unanimity at UNCLOS III as to mile limit, the position has remained in conflict with the new regime. The same is true of the definition of the continental shelf.12 The first problem this presents is that of the interests of states which are adjacent or opposite states in the Gulf of Guinea which seem difficult to reconcile in terms of delimiting the marine boundaries.
The second problem is that with the coming into force of the LOS provisions like the Territorial Waters Act13 regarding jurisdiction over offences committed in territorial waters seems inconsistent with the convention. Jurisdiction beyond the 12 mile limit will be extra-territorial and a violation of the rights of other states, it may interfere with rights of innocent passage or navigation. Indeed, the 30 mile limit is well outside the contiguous zone created to
11 Now Cap. 179, LFN, 1990 12 Sections 1(2) and 15 of the Petroleum Act Cap. 350, LFN, 1990 13 Section 2(2) Territorial Waters Act Capo. T5 Vol. 14 LFN, 2004
permit a coastal state to enforce its criminal, immigration or sanitary laws outside the territorial sea. It may therefore raise problems, for instance, with the exercise of the right of hot pursuit. 1.3 Aim and Objectives of the Research The aim of this research work is to appraise the legal and institutional framework on maritime law in Nigeria through the following objectives: i) To determine the rights and interests of states which are adjacent or opposite to the Gulf of Guinea that have been difficult to reconcile in terms of maritime boundaries. ii) To examine the issues of jurisdiction of states over offences committed in their territorial waters. iii) To address the problems of nautical miles in respect to coastal states. iv) To identify the problems of conflicts and dispute regarding Maritimes zones and proffer practical solutions to them. 1.4 Justification of the Research The importance of this work lies in the fact that it will provoke renewed interest in the development of Nigerian maritime law by the Federal Government and relevant agencies. It will hopefully entitle the stakeholders of the maritime sector by creating awareness of the immense benefits that would accrue to Nigerians and the National Economy if the law is properly enforced to harness our maritime sector with participants of Nigerian operators. 1.5 Scope of the Research
The study focuses mainly on the legal and institutional framework of Maritime law in Nigeria. It exposes the possible challenges of the laws, examines the opportunities that will accrue to the indigenous shipping agencies. The study is limited to the role and function of
NIMASA, as the Federal Government regulatory agency aimed at seeing the nation competing favourably with its counterparts. It also takes a look at cabotage law and the Nigeria institute for oceanography and marine research. 1.6 Methodology The methodology adopted by the researcher is the doctrinal method that is, library oriented. It was carried out in the National Library Abuja and Law Library Ahmadu Bello University, Zaria. The internet was also consulted. Materials consulted are statute books, international treaties, textbooks, journals and articles on the subject matter under consideration. The sources of materials consulted are primary and secondary sources. The primary sources are local and international statutes, textbooks whereas the secondary sources are articles in journals and paper presentations at the international law. This research work wholly depends on textbooks, statutes, articles, journals and the internet. 1.7 Literature Review
Mohammed Tawfiq Ladan in his book, Materials and Cases on Public International Law14 extensively highlighted on the international law of the sea, and Nigeria’s maritime law. He raised fundamental issues and clearly enunciates the seminaries and dissimilarities of the two laws.
Another author in the Procedural Framework of the Agreement Implementing the 1982 United Nations Convention on the Law of the Sea analyzed on the law of the sea, procedures of agreement implementation, and on the New Legal regimes of 1982 UNCLOS. His contribution on the territorial sea, Continental Zone, exclusive economic Zone, continental shelf were
14 (2007) Ahmadu Bello University Press, Zaria
relevant to this study. He succeeded in making a distinction between the zones and proffered useful legal definitions of the zones.
Osita, C.E., in Transfer of technology to developing Countries,15 elaborated on the prevention and control of marine pollution from all sources. His contribution on the promotion of the development and transfer of marine technology on fair and reasonable terms and conditions with proper regards for all legitimate interests including the rights and duties of holders, suppliers and recipients of technology are invaluable to this research. They have been analysed in the light of this research.
Ilogu, L.C.16 made needful contributions on the maritime sector, especially in the area of ship, ship mortgage, but failed to succinctly address the issue of new emerging trends in the maritime sector which this research aims at addressing.
Akinsanya, A. in his work on maritime pollution in environmental law and policy,17 made useful observation on marine pollution and its adverse effect on marine life. His work is relevant to this research but did not touch on issues of Nigeria’s maritime interest.
Brownlie, I., in Principles of Public International law,18 gave an apt examination of the convention on the law of the Sea, bringing grey areas to light and making useful recommendations. However, he failed to examine the issues of Nigerian maritime interest within the African context.
Green, L.C., in his work, International Law through the cases,19 highlighted the issue of innocent passage and observed the challenges militating the exploitation and exploration of
15 (1986) Transfer of Technology to developing Countries, Amazon Books Store. 16 (2006) Essays on Maritime law and Practice ELCSAM Integrated Services Ltd Lagos Nigeria 17 (1973) Maritime Pollution in Environmental Law and Policy, Lagos State University. 18 (1973) Principles of Public International Law, Oxford, Clarendon Press. 19 (1970) International Law through the Cases, London Stevens.
marine resources. The work failed however, to look at the African context, especially Nigeria; and her maritime sector, which this research aims to augment.
Walker, W.L., in Territorial Waters,20 discussed the parameters of boundary disputes and adjudication and made useful recommendation on the issues raised in the work. The work on the other hand did not address the challenges of vessels, especially on Nigerian waters which this research aims to address.
Ayua A.I. Yagba T.A.T., Osiase O.A. “in the New Law of the Sea and Nigerian Maritime Sector: Issues and Prospects for the Next Millennium,”21 highlighted issues on the exploration and exploitation of the marine environment; and discussed to some extent the challenges faced by coastal states, but failed to proffer solutions that would curb the problems faced by the coastal states which are peculiar to each situation. This research therefore aims at analyzing these grey areas and recommending practical way out if the issues raised.
Patel, B.N. and Thakkar H., in “Marine Security and Piracy: Global Issues, Challenges and Solutions”22 analysed the menace of piracy and made valuable comparative analysis of different legal regimes and suggested ways of combating maritime piracy as a subject of universal jurisdiction and the dimension of global maritime piracy. Though invaluable their contribution, they however failed to identify those problems that are peccary to Africa coastal states.
20 (1945) Territorial Waters, The Canon Shot Rule, British Year Book of International Law. 21 (2001) The New law of the Sea and Nigerian Maritime Sector: Issues and Prospects for the Next Millennium 22 (2007) Maritime Secuity and Piracy: Global Issues, Challenges and Solutions, Easter Book Company (EBC) Publishing Ltd 34-A Lalbagh, Lucknow-226001.
1.8 Organizational Layout The research is divided into five chapters. Chapter one consist of the general introduction and preliminary issue like statement of the problem, justification of the research, objectives, scope of the research, methodology, literature review and organizational layout of the study. Chapter two discusses development of the law of the sea, origin, nature and development of international maritime law and the subject of maritime law. Chapter three examines an overview of Nigerian maritime law and its institution like Nigeria maritime administration and safety (NIMASA), Nigeria Institute of Oceanography and maritime research (NIOMR), meaning of cabotage, Nigeria coastal trade and potentials of cabotage, international maritime related conventions and agreement, cabotage issues with international implication. Chapter four focuses on maritime zone conservation and management within the limits of jurisdiction, the internal waters, the contiguous zone, regime of the high seas and international seabed, nationality of ship, piracy, consent of jurisdiction on the basis of treaty and conservation of marine environment.
Chapter five summarizes the research by way of conclusion, findings and recommendations.
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AN APPRAISAL OF LEGAL AND INSTITUTIONAL FRAMEWORK ON MARITIME LAW IN NIGERIA