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The Incorporation of Continental Shelf Rights into United Kingdom Law

Published online by Cambridge University Press:  17 January 2008

Geoffrey Marston
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Extract

On 9 September 1958 the UK government signed the Convention on the Continental Shelf, which had been concluded in Geneva on 29 April 1958 following a UN conference on the law of the sea at which three other conventions were concluded.2 On 11 May 1964 it ratified the Convention, which came into force on 10 June 1964.3 Meanwhile, on 15 April 1964, the Continental Shelf Act received the royal assent. Although the Act's long title indicates that it gives effect to certain provisions of the Convention on the High Seas,4 it does not expressly mention the Continental Shelf Convention. Yet the relationship between this Convention and the Act is more than a mere coincidence of time and title. It is the purpose of this article to investigate only one of the many important problems to which this relationship gave rise, namely how the basic concept of continental shelf rights as embodied in Article 2(1) of the Convention was incorporated into UK law. Other problems, such as the application to the shelf of UK civil and criminal law, will have to await discussion elsewhere.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 45 , Issue 1 , January 1996 , pp. 13 - 51
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. The archival material cited, which is the subject of Crown copyright, is taken from the Public Record Office groups FO (Foreign Office), CO (Colonial Office), CRES (Crown Estate Office), POWE (Ministry of Power), PREM (Prime Minister's Office) and CAB (Cabinet Office). The departmental file number, where available, has been given in square brackets after the Public Record Office reference. The records of the Office of Parliamentary Counsel are not open to public scrutiny.

2. These were the Convention on the High Seas, the Convention on the Territorial Sea and the Contiguous Zone, and the Convention on Fishing and Conservation of the Living Resources of the High Seas.

3. 499 U.N.T.S. 311.

4. 450 U.N.T.S. 11.

5. Art.77(1) of the UN Convention on the Law of the Sea 1982, which is in force but to which the UK is not yet a party, is identical to Art.2(1) of the 1958 Convention. The other provisions of the 1958 Convention mentioned here have substantially similar counterparts in the 1982 Convention, with the notable exception of Art.1. since Art.76 of the 1982 Convention defines the extent of the shelf in a radically different way.

6. Subs.1 remains unamended. Subs.2 has been repealed by the Coal Industry Act 1994 which by its s.8(1) and (2) deems the interests in unworked coal and coal mines “outside Great Britain and the territorial sea adjacent to Great Britain” which were vested in the British Coal Corporation to be “the exclusive right” of searching or boring for coal; by s.7(3), such interests are “vested” in the Coal Authority.

7. The expression “territorial waters” is no longer used in international instruments, being replaced by the term “territorial sea”. Its use in UK legislation raises the question whether it refers only to the belt of uniform width now called territorial sea in international law, or whether it refers to the entire maritime area out to the seaward limit of the territorial sea, thus encompassing, in international law terminology, both territorial sea and internal waters.

8. The ambit of the section was amended with retrospective effect by the Oil and Gas (Enterprise) Act 1982, s.18(1), to extend also to the area “beneath the territorial waters of the United Kingdom adjacent to Great Britain”. The words “adjacent to Great Britain” were repealed by the Petroleum Act 1987, s.19(1), in order that the legislation might apply to the Northern Ireland territorial sea.

9. The baseline of the UK territorial sea was not defined until the promulgation on 30 Sept. 1964 under the royal prerogative of the Territorial Waters Order in Council 1964 (S.I. 1965, p.6452A).

10. See e.g. G. Marston, The Marginal Seabed: United Kingdom Legal Practice (1981), chap.X.

11. 516 U.N.T.S. 205.

12. “Whose is the Bed of the Sea? Sedentary Fisheries outside the Three-mile Limit” (1923–4) 3 B.Y.I.L. 34.

13. (1925) 32 Ann.Inst.Dr.Int. 159–160.

14. Oppenheim, L., International Law (4th edn, by McNair, A. D.. 1928), Vol.1, pp.513–517.Google Scholar

15. See Marston, op. cit. supra n.10, at pp.231–235; also Foreign Office to Anglo-Iranian Oil Company, 29 Nov. 1938 (FO 371/21896 [E 7138/201/34 of 1938]).

16. 205 L.N.T.S. 121.

17. 144 British and Foreign State Papers 970–971.

18. British Embassy, Washington to Foreign Office, 11 May 1945 (FO 372/4370 [T 7381/ 266/380 of 1945]).

19. R. Cecil, British Embassy, Washington, to William Bishop, State Department. 31 Aug. 1945 (FO 371/50387 [W 12180/12/76 of 1945]).

20. FO 371/50390 [W 15262/12/76 of 1945].

21. FO 371/54741 [W 1075/391/76 of 1946].

22. FO 371/51708 [AN 3286/307/45 of 1946].

23. CAB 128/13 [CM. (48) 68th Conclusions, item 5].

24. CAB 128/15 [CM. (49) 12th Conclusions, item 4].

25. Telegram 161 from Foreign Office to British Political Resident in Bahrein (FO 371/ 74994 [E 3776/1271/91 of 1949]). The telegram is dated 26 Mar. but the despatch date is indicated as 28 Mar.

26. See English text in Foreign Relations of the United States, 1949, Vol. VI, pp.185–186.

27. FO 371/68327 [E 10275/276/91 of 1948].

28. HC Hansard, 5th ser., Vol.481, col.331.

29. FO 371/93296 [GW 1/7 of 1951].

30. On 24 Apr. 1951 the Foreign Secretary, now Herbert Morrison, distributed to British diplomatic missions a memorandum on the subject of the shelf, prepared by the Foreign Office legal advisers, which stated that the government had so far adopted the position that the shelf was res nullius, “capable of occupation so long as such occupation is effective, i.e., real physical exploitation”; the memorandum here added that the requirement of effective occupation was interpreted “rather liberally” (FO 371/91892 [UE 1271/34 of 1951]). The Foreign Office as late as 11 Mar. 1963 in a memorandum submitted to the Law Officers of the Crown stated that “in customary international law the sea-bed and the subsoil of the high seas are generally regarded as being capable of occupation as res nullius” (FO 371/171092 [GW 1/15 of 1963]).

31. (1951) II Y.B.I.L.C. 141.

32. Idem, p.142.

33. (1953) II Y.B.I.L.C. 267.

34. On 30 June 1954 the British Resident in Brunei, a State under British protection, promulgated a proclamation by command of the Sultan by which the continental shelf “beneath the high seas contiguous to the territorial waters of Brunei, is hereby annexed to and shall form part of the State of Brunei” (Laws of Brunei, rev. edn, 1984, Vol.IX, supp.11).

35. But not identical in that the 1948 and 1950 Orders described the relevant shelf as “contiguous to the coasts” whereas the 1954 Orders used the words “contiguous to the territorial waters”.

36. CO 1029/256 [PMD 138/14/07].

37. Ibid.

38. (1956) 11 Y.B.I.L.C. 297–298.

39. United Nations Conference on the Law of the Sea, 1958. Official Records, Vol.VI, p.70.

40. Cmnd.584, pp.11–12.

41. See Marston, op. cit. supra n.10, at chap.VIII. There was little if any practice beyond that limit apart from the sale to the Earl of Lonsdale, in 1880, of the Crown's rights and interests in unworked mineral substances to a distance of 10 miles from the coast of Cumberland. A century later, this transaction, which might be explicable on the assumption that the locus was within the Solway Firth, led to litigation (Earl of Lonsdale v. Attorney-General [1982] 1 W.L.R. 887).

42. (1923–24)4 B.Y.I.L. 34, 43.

43. See G. Marslon, “Colonial Enactments Relating to the Legal Status of Offshore Submerged Lands” (1976) 50 Australian L.J. 402.

44. CRES 58/1020 [Foreshores 25316]. A copy of this memorandum was provided to Sir Jocelyn Simon S.-G. for his use in the Committee debates on the Crown Estate Bill in the House of Commons in July 1961 (Ibid.).

45. (1923–24)4 B.Y.I.L. 34, 43.

46. C.3358, p.87. When the problem arose in practical terms more than a century later, it was resolved statutorily by incorporating the land comprising the tunnel system “so far as not comprising part of the United Kingdom” into England “as it becomes occupied” (Channel Tunnel Act 1987, s.10(1)) and vesting it in the Secretary of State (s.7(1)).

47. Minute dated 21 Oct. 1938 by Crown Lands Office's solicitor (CRES 36/85 /GEN 509]). See also Marston, op. cit. supra n.10, at pp.186–191.

48. POWE 37/325 [B 25/34/1].

49. Ibid.

50. CRES 37/1534 [Foreshores 25073].

51. HC Hansard, 5th ser., Vol.586, col.926.

52. CAB 129/93 [C. (58) 126].

53. Circular 1137/58 (CO 1029/256).

54. CO 936/590 [IRD 313/269/01].

55. Ibid.

56. The Foreign Office reply is not found on file CO 936/590 and may be located on a file which is still subject to closure.

57. CO 936/590 [IRD 313/269/01].

58. Ibid.

59. CO 554/2109 [WAF 1029/3/01].

60. Ibid.

61. CO 936/590 [IRD 313/269/01].

62. Ibid. Original signed opinion.

63. Ibid. Transmitted in letter from K. J. Simpson to Aldridge dated 3 Sept. 1959.

64. The Colonial Office's principal legal adviser at this time. Sir Kenneth Roberts-Wray, writing later in retirement, remarked generally of the colonial boundary Orders in Council: “They did not use the word ‘annex’ but they must in fact have amounted to annexation” (Commonwealth and Colonial Law (1966). p.108).

65. Circular 1176/59 (CO 936/590).

66. CAB 128/32 Pan 1 [C.C. (58) 50th Conclusions, item 5].

67. POWE 33/2487 [PE 1244/3/1].

68. FO 371/141783 [GW 11/10 of 1959]. The document was drafted by Gutteridge.

69. CRES 58/1020. The legal advice initiated in a minute dated 10 July 1959 by the Crown Estate Office's legal adviser. Sir Francis Enever, in which he considered that it would be necessary for the statute implementing the Convention “to appropriate the Continental Shelf to the realm of England” and that it should be specifically provided that the management of the land so vested should be in the hands of the Commissioners under the Crown Lands legislation. The compatibility of this suggestion with the Convention's provisions was, however, doubted within the Office. In a minute dated 25 Aug. 1959 Behn considered that it might not be expedient to seek by legislation to secure Crown ownership and management by the Commissioners of the submarine area beyond the present limit of the territorial sea, since this would focus attention on the fact that there was no existing legislation declaring Crown ownership of the bed of the sea below low-water mark (Ibid.)

70. Ibid.

71. FO 371/141805 [GW 13/13 of 1959].

72. Ibid.

73. FO 371/150847 [GW 13/14 of 1960].

74. POWE 33/2518 [PD 1146/30/28, Part 1]. See in particular Scholes to Crofton, 27 Mar. 1961, Crofton to Flett, 7 Apr. 1961, Flett to Crofton, 13 Apr. 1961, Procter to Scholes, 24 Apr. 1961, Scholes to Cabinet Office. 2 May 1961. At this time, further industry interest was manifested by the Natural Gas Development and Transportation Company, which expressed interest in gas prospecting on the Dogger Bank. In a letter to the company dated 30 May 1961 the Ministry of Power responded (FO 371/158729 [G W 13/10 of 1961]): “We are advised that the Government would have no authority to grant rights for exploration and development of petroleum resources beyond the three-mile limit until they obtain statutory powers to that effect.” The Foreign Office concern with such interest was the possibility of ‘squatter's rights”.

75. CAB 134/1925 (F.L.(62) 2nd Meeting) (original emphasis).

76. POWE 33/2550 [PD 1146/30/26].

77. POWE 37/492 [B 98/19].

78. POWE 33/2250 [PD 1146/30/26].

79. POWE 33/2552 [PD 1146/30/31]. The letter, which reproduced the first sentence of Allan's minute of 7 Nov. 1957 mentioned above, was based on a minute by Enever dated 10 Aug. 1961 (CRES 58/1020) which had discussed the “conflicting decisions” relating to Crown property rights below the low-water mark.

80. CRES 58/1020. The letter was based on a minute by Enever dated 26 Oct. 1962 (Ibid.).

81. POWE 33/2550 [PD 1146/30/26].

82. Ibid.

83. CAB 134/1992 [H.A. (62) 132]. Up to this time, there was little overt government perception of the prospective magnitude of the economic resource later to be exploited under the North Sea. Thus in his memorandum Wood wrote: “We cannot count on the discovery of worthwhile reserves of natural oil and gas there.” As late as 17 Apr. 1964, the Minister of Power told the Prime Minister that “only drilling could establish whether oil was present” (PREM 11/4812). It is likely, however, that the North Sea's potential was perceived by the oil industry, which was the major stimulant to government action.

84. CAB 134/1989 [H.A. (62) 18th Meeting]. During the audience which the Earl of Perth, First Commissioner of the Crown Estate, had with the Queen on 28 Nov. 1962, Her Majesty remarked that “she had seen something about the Crown Estate taking over rights on land under the sea”. The Earl of Perth reported afterwards that he feared that he was not very well informed and had to seek information from his office which he passed on to the Queen's Private Secretary for the further enlightenment of Her Majesty (Perth to Adeane, 5 Dec. 1962 (CRES 58/1020)).

85. POWE 33/2533 [PD 1146/30/5].

86. CRES 58/1020 [Foreshores 25316].

87. POWE 33/2550 [PD 1146/30/26].

88. FO 371/171092 [GW 1/15 of 1963].

89. This was a misapprehension. Although declarations were made by (he UK to exclude the Persian Gulf sheikhdoms under British protection from the application of the other three 1958 Geneva Conventions, no declaration to this effect was made either on signature of the Continental Shelf Convention in 1958 or on its ratification in 1964, an oversight which caused embarrassment within the Foreign Office (see FO 371/176337 [GW 4/59 of 1964]).

90. Johnstone to Dudman, 18 Mar. 1963 (POWE 33/2550 [PD 1146/30/26]).

91. Johnstone to Moran, 18 Mar. 1963 (Ibid).

92. POWE 33/2550 [PD 1146/30/26]; there is a printed text of the Case and Opinion on FO 371/171092 [GW 1/15].

93. Ibid.

94. FO 371/171092 [GW 1/15 of 1963].

95. POWE 33/2619 [PD 1146/30/32].

96. On the death of Sir Henry Rowe, who retired as First Parliamentary Counsel, one of his successors in office. Sir George Engle, wrote: “Perhaps the finest example of his work as a draftsman and as a lawyer is the Continental Shelf Act, 1964, a model of conciseness and lucidity in a very difficult area of the law” (Independent, 19 Feb. 1992).

97. POWE 33/2619 [PD 1146/30/32].

98. POWE 33/2533 [PD 1146/30/5]. It is clear from Allan's internal minute of 18 July 1963 that he regarded s. 1 (1) of the Crown Estate Act 1961 as applicable to those shelf rights which “would automatically fall into the Crown Estate bag” (CRES 58/1020).

99. CRES 58/1020 [Foreshores 25316]. In an internal minute dated 1 Aug. 1963 Allan had written: “it would also appear, although not expressly stated, that the Law Officers would not accept the view shared by us with Parliamentary Counsel that the provisions of the Crown Estate Act 1961 would apply to the United Kingdom's rights in the Continental Shelf, since these rights are not, in their opinion, to be regarded as forming part of the realm of Great Britain for statutory purposes” (Ibid).

100. Ibid. Johnstone noted that the A.-G. and the Lord Advocate had not seen eye to eye and had exchanged “some pretty sharp correspondence”. This correspondence arose, it seems, not out of any difference on the law to be expounded in the opinions but from what was described as a dispute between the Foreign Office, which considered that all questions of international law should be dealt with by the English Law Officers, and the Scottish Office, which considered that whenever Scotland was likely to be involved the question should be submitted jointly to the English and Scottish Law Officers. Copies of the correspondence are on FO 371/171092 [GW 1/15 of 1963].

101. FO 371/171092 [GW 1/41 of 1963].

102. CRES 58/1020 [Foreshores 25316].

103. Rowe to Trevor (solicitor in Ministry of Power), 16 Sept. 1963 (Ibid).

104. Ibid.

105. Ibid.

106. Ibid. Commissioners' document C.E. (63) 8th meeting, item 11.

107. Ibid.

108. Ibid.

109. CAB 134/2149 [L.(63)16].

110. Ibid. In an internal minute dated 11 Nov. 1963 Allan wrote: “No express provision is made for the management of resources [other than petroleum and coal] by the Crown Estate Commissioners, but this must, I think, follow from the vesting in Her Majesty” (CRES 58/1020).

111. CAB 134/2148 [L.(63) 6th Meeting].

112. Idem [L(63) 7th Meeting].

113. Parliamentary Papers, 1963–1964, House of Lords, Vol.1 (Bill 12), p.303.Google Scholar

114. POWE 33/2628 [PD 1202] (original emphasis).

115. HL Hansard, 5th ser., Vol.253, col.911.

116. HC Hansard, 5th ser., Vol.692, col.896.

117. Idem, Vol.688, col.221.

118. Idem, HC Standing Committee A, Coniinental Shelf Bill, 12 Feb. 1964, col.9.

119. Idem, col.19.

120. Idem, cols.19–20. The minister might have been misinformed about the legal position prior to the 1934 Act. There was doubt during that period whether oil and natural gas in strata could be the subject of ownership. See e.g. the remarks of the Parliamentary Secretary, Mines Department, during the second reading debate in the House of Commons on 19 June 1934 (HC Hansard, 5th ser., Vol.291, cols.310–311) and see infra n.130.

121. Standing Committee A, supra n.118, at col.22.

122. FO 371/176337 [GW 4/59 of 1964].

123. Second Reading Brief in House of Lords, item 15 (POWE 33/2636 [PD 1204/1]).

124. FO 371/176337 [GW 4/38 of 1964].

125. ibid

126. Circular 334/64 (FO 371/176338 [GW 4/61 of 1964]).

127. For a discussion of the later history of the Orders, see G. Marston, “The Extension of the Maritime Boundaries of certain British Colonies under the Colonial Boundaries Act 1895: A Special Case?”, in C Grundy-Warr (Ed.), International Boundaries and Boundary Conflict Resolution: Proceedings of the 1989 IBRU Conference (1990), pp.241–265.

128. HL Hansard, 5th ser., Vol.253, cols.924–925.

129. See e.g. Post Office v. Estuary Radio Ltd [1968] Q.B. 740; Shetland Salmon Farmers Association and Trustees of Port and Harbour of Lerwick v. Crown Estate Commissioners 1991 S.L.T. 166.

130. In submitting the draft of the Petroleum (Production) Bill on 13 Dec. 1933, its draftsman, A. Stainton, wrote: “I cannot think, however, that the Bill is a Bill in respect of the property of the Crown; the whole purport of the subsection [i.e. what became s.1(1)] is to deal with something which is not now the property of the Crown and to say that in future it shall belong to the Crown” (POWE 33/485 [PD 794, Part 1]).

131. This was the view taken of s.1(1) of the 1964 Act by Slade J in Earl of Lonsdale v. Attorney-General [1982] 1 W.L.R. 887, 946–947. Having described the provision as “at first sight an odd one”, he went on to consider that it had divested in favour of the Crown any rights in shelf minerals which hitherto might have been vested in individuals under English law.

132. During the parliamentary debates on the Bill, there were references by government ministers to seabed and foreshore as if they assumed that these areas were within the Crown Estate (see e.g. HC Hansard, 5th ser., Vol.587, col.587–590 (28 June 1961)).

133. In the period between the enactment of the 1961 Act and the drafting of the Continental Shelf Bill the possibility that the Crown did not have ownership or the Commissioners jurisdiction beyond the territorial sea was recognised within the Ministry of Power (Millett to Thortey, 22 May 1962: POWE 33/2552 [PD 1146/30]).

134. See e.g. Maxwell on the Interpretation of Statutes (12th edn, by Langan, P. St J., 1969), pp.169–173.Google Scholar

135. HL Hansard, 5th ser., Vol.474, col.1130.

136. Idem, Vol.397, cols.931–932. As a term and condition of the extension of the territorial sea around the Isle of Man to 12 miles on 2 Sept. 1991, compensation was paid by the Manx government to the Crown Estate Commissioners for the loss of the latter's interests in the bed of the 9-mile extension which hitherto had been part of the UK's continental shelf (Home Office News Release, 1 Aug. 1991). See also the compensation payable to the Crown Estate Commissioners for land of the Crown Estate occupied by the Channel Tunnel (Channel Tunnel Act 1987, s.7(3)).

137. Parliamentary Papers, 1991–92, HC Paper 17–11, p.180. In a recent magazine article the Earl of Mansfield, First Commissioner of the Crown Estate, expresses himself more modestly: “The Crown Estate is the landed estate which the sovereign inherits ‘in the right of the Crown’… Today it includes… a marine estate comprising about half the UK foreshore, some beds of tidal rivers and estuaries, and almost all the sea-bed out to the 12-mile limit” (The Field, May 1995, p.52).

138. The questions whether there are property rights in unworked oil and gas in situ in the UK shelf, and the nature of the rights possessed by licence holders, have given rise to much academic debate. See e.g. Daintith, T. and Willoughby, G. D. M. (Eds), United Kingdom Oil and Gas Law (2nd edn, 1984), esp. paras.1–119, 1–203, 1–231/2Google Scholar; Cameron, P. D., Property Rights and Sovereign Rights: the Case of North Sea Oil (1983), esp. pp.42–56.Google Scholar

139. Earl of Lonsdale v. Attorney-General [1982] 1 W.L.R. 887; in June 1977 the nature of continental shelf rights was discussed during argument in the Scottish Court of Session in the valuation cases Shell UK Ltd v. Assessor for the Fife Region and BP Petroleum Development Ltd v. Assessor for the Grampian Region, but these cases did not proceed to judgment.