• Tuesday, May 28, 2024
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The regulatory framework of the Nigerian Blue Economy – Part III

The regulatory framework of the Nigerian Blue Economy (Part 4)

In August 2023, the President of the Federal Republic of Nigeria, Bola Ahmed Tinubu, announced the creation of new ministerial portfolios. Part of the new portfolios created by the Tinubu Administration is the Ministry of Marine and Blue Economy, which is headed by Hon. Minister Gboyega Adetola.

The creation of the Ministry is an exciting development for Nigeria and the maritime industry. It shows Nigeria’s interest in harnessing the vast economic opportunities that abound in our oceans and other aquatic ecosystems. In Africa, countries like South Africa, Seychelles, and Mauritius are already active players in the blue economy. In Seychelles, tourism accounts for about 16.5% of its GDP. Tourism is Mauritius’ biggest ocean export. While the creation of the Ministry is laudable, the key consideration is whether Nigeria has the regulatory framework for the actualisation of the blue economy.

The objective of this article is to provide an overview of the regulatory framework of the Nigerian blue economy.

In the previous parts of this article, the concept of the blue economy was explained and some of the steps that Nigeria has taken so far to harness its blue economy resources were identified. Some of the domestic legislations and international conventions that regulate the Nigerian blue economy were also identified.(Please visit https://www.aelex.com/regulatory-framework-of-the-nigerian-blue-economy/ to read the full article).

In this part of the article, we will continue with the examination of these domestic legislations and international conventions.

Exclusive Economic Zone

The Exclusive Economic Zone (“EEZ”) was developed out of earlier claims by coastal states like the fisheries zone. It is a compromise between states that advocate for a more restricted coastal jurisdiction and those that prefer a 200-nautical mile territorial sea.

The UNCLOS has delimited the EEZ not to “extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.” Nigeria through the Exclusive Economic Zone Act, 1978 (“EEZ Act”), has delimited a 200-nautical miles EEZ for itself. Section 1 (1) of the EEZ Act provides as follows:

“(1) Subject to the other provisions of this Act, there is hereby denominated a zone to be known as the Exclusive Economic Zone of Nigeria (in this Act referred to as the “Exclusive Zone”) which shall be an area extending from the external limits of the territorial waters of Nigeria up to a distance of 200 nautical miles from the baseline from which the breadth of the territorial waters of Nigeria is measured. ”

However, Nigeria’s EEZ shall be less that 200-nautical miles if under a treaty or other form of written agreement, it agrees with any neighbouring state that its EEZ shall be less than 200-nautical mile.

Nigeria has the exclusive right to explore and exploit all the natural resources in the sea bed, sub soil and superjacent waters in the EEZ subject only to the provisions of any treaty to which it is a party with respect to the exploitation of the living resources of the EEZ.

Under UNCLOS, Nigeria has the sovereign right and jurisdiction to explore, exploit, conserve, and manage all the natural resources of the EEZ; produce energy from the wind, waters, and currents of the EEZ; establish and use artificial islands, installations, and structures in the EEZ; conduct marine scientific research in the EEZ; protect and preserve the marine environment of the EEZ; and exercise other rights and duties in the EEZ as provided for in the UNLCOS.

However, it should be noted that notwithstanding Nigeria’s sovereign and exclusive jurisdiction over its EEZ, other states, whether coastal or landlocked, enjoy the rights associated with the freedom of the sea as provided in Article 87 of UNCLOS in the EEZ. But while exercising their Article 87 rights in the EEZ, these other states shall comply with Nigeria’s laws and regulations, the provisions of UNCLOS, and other rules of international law. The Article 87 rights are:

(a) freedom of navigation;

(b) freedom of overflight;

(c) freedom to lay submarine cables and pipelines, subject to Part VI of UNCLOS;

(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI of UNCLOS;

(e) freedom of fishing, subject to the conditions laid down in section 2 of UNCLOS; and

(f) freedom of scientific research, subject to Parts VI and XIII of UNCLOS.

Continental Shelf

Article 76 (1) of UNCLOS defines the continental shelf as comprising “the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.” Section 3 of the Continental Shelf Act 2012 (“CSA”) defines the continental shelf as “the seabed and subsoil of the submarine areas that extend beyond Nigeria’s territorial sea throughout the natural prolongation of Nigeria’s land territory to the outer edge of the continental margin, or to distance of 200 nautical miles from the baselines from which the breadth of Nigeria’s territorial sea is measured where the outer edge of the margin does not extend up to that distance.”

The important point to note about the continental shelf is that it is usually rich in oil and gas resources and contains numerous fishing grounds.

Nigeria has sovereign and exclusive rights for the exploration and exploitation of the natural resources in its continental shelf. These rights are exclusive because even if Nigeria does not explore and exploit those natural resources, no other state can do so without first seeking and obtaining Nigeria’s consent to do so. Unlike the territorial sea, Nigeria’s rights over the continental shelf neither depends on any express claim/proclamation nor on occupation. The natural resources of the continental shelf over which Nigeria can exercise exclusive rights are “the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.”

By Article 81 of UNCLOS, Nigeria has the exclusive right to authorise and regulate drilling within its continental shelf. This means that all the oil and gas resources within Nigeria’s continental shelf are within Nigeria’s exclusive control and, therefore, cannot be exploited by any other state or entity without Nigeria’s consent first sought and obtained.

It would appear by Articles 78 and 79 of UNCLOS that other states can exercise Article 87 rights over Nigeria’s continental shelf but they must do so in compliance with the rules and regulations laid down by Nigeria as applicable in the continental shelf.

Extended Continental Shelf

Article 76 (6) of UNCLOS, permits a state to extend its continental shelf to 350-nautical miles upon making a submission to that effect to the Commission on the Limits of the Continental Shelf (“CLCS”) established pursuant to Annex II of UNLCOS. Pursuant to Article 76 (6) of UNCLOS, Nigeria made submissions for extended continental shelf to the CLCS in May 2009 and October 2016. In December 2023,the United Nations approved the extension of Nigeria’s continental shelf by 20 nautical miles. This means that Nigeria’s continental shelf is now 220 nautical miles.

The implications of this extension is that Nigeria can now explore and exploit the abundant carbon and marine resources believed to be present within the area and the country can redraw the map of its territory around the Gulf of Guinea.

Please, note that in the next part of this article, we shall conclude with the examination of the domestic legislations and international conventions that regulate the Nigerian blue economy; make our conclusion with respect to the entirety of the article; and give our recommendations on how Nigeria can optimally harness its blue economy potentials.

For further information or enquiries on this article, please send a mail to [email protected].