The incorporation of continental shelf rights into united kingdom law

International and Comparative Law Quarterly

Volumn 45, Issue 1, 1996, Pages 13-51

  Marston, Geoffrey ^a  

^a SIDNEY SUSSEX COLLEGE   (United Kingdom)

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EID: 85014340016     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300058644     Document Type: Article

References (76)

1. 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).
2. See e.g. G. Marston, The Marginal Seabed: United Kingdom Legal Practice (1981), chap.X.
3. “Whose is the Bed of the Sea? Sedentary Fisheries outside the Three-mile Limit” (1923–1924) 3 B.Y.I.L. 34.
4. (1925) 32 Ann.Inst.Dr.Int. 159–160.
5. L. Oppenheim, International Law (4th edn, by A. D. McNair. 1928), Vol.1, pp.513–517.
6. See Marston, International Law, at pp.231–235
7. also Foreign Office to Anglo-Iranian Oil Company, 29 Nov. 1938 (FO 371/21896 [E 7138/201/34 of 1938]).
8. See English text in Foreign Relations of the United States. 1949. Vol. VI, pp.185–186.
9. HC Hansard, 5th ser., Vol.481, col.331.
10. (1951) II Y.B.I.L.C. 141.
11. Idem. p.142.
12. (1953) II Y.B.I.L.C. 267.
13. 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.II).
14. Laws of Brunei, rev.
15. (1956) II Y.B.I.L.C. 297–298.
16. United Nations Conference on the Law of the Sea, 1958, Official Records, Vol.VI, p.70.
17. See Marston. Official Records, 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.
18. 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).
19. (1923–1924) 4 B.Y.I.L. 34,43.
20. See G. Marslon, “Colonial Enactments Relating to the Legal Status of Offshore Submerged Lands” (1976) 50 Australian L.J. 402.
21. 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 (Australian L.J.).
22. (1923–1924) 4 B.Y.I.L. 34, 43.
23. Minute dated 21 Oct. 1938 by Crown Lands Office's solicitor (CRES 36-85 (GEN 509]). See also Marston, B.Y.I.L., at pp.186–191.
24. B.Y.I.L.
25. B.Y.I.L.
26. B.Y.I.L.
27. B.Y.I.L.
28. B.Y.I.L. Original signed opinion.
29. B.Y.I.L. Transmitted in letter from K. J. Simpson to Aldridge dated 3 Sept. 1959.
30. 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).
31. (Commonwealth and Colonial Law).
32. Commonwealth and Colonial Law.
33. Commonwealth and Colonial Law.
34. CRES 58/1020. The letter was based on a minute by Enever dated 26 Oct. 1962 (Commonwealth and Colonial Law).
35. Commonwealth and Colonial Law.
36. CAB 134/1992 [H.A. (62) 132].
37. CAB 134/1989 [H.A. (62) 18th Meeting].
38. Johnstone to Moran, 18 Mar. 1963 (H.A.).
39. H.A.
40. 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).
41. (Independent).
42. Independent.
43. Rowe to Trevor (solicitor in Ministry of Power), 16 Sept. 1963 (Independent).
44. Independent.
45. Independent.
46. Independent. Commissioners' document C.E. (63) 8th meeting, item 11.
47. Independent.
48. Independent.
49. Independent. 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).
50. Idem (L (63) 7th Meeting).
51. Parliamentary Papers, 1963–64, House of Lords, Vol.1 (Bill 12), p.303.
52. HL Hansard, Sth ser., Vol.253, col.911.
53. HC Hansard, 5th ser., Vol.692, col.896.
54. Idem, Vol.688, col.221.
55. Idem, HC Standing Committee A, Continental Shelf Bill, 12 Feb. 1964, col.9.
56. Idem, col.l9.
57. 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.
58. 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)
59. see infra n.130.
60. Standing Committee A, infra, at col.22.
61. infra.
62. 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 1BRU Conference (1990), pp.241–265.
63. HL Hansard, 5th ser., Vol.253, cols.924–925.
64. See e.g. Post Office v. Estuary Radio Ltd [1968] Q.B. 740
65. Shetland Salmon Farmers Association and Trustees of Port and Harbour of Lerwick v. Crown Estate Commissioners 1991 S.L.T. 166.
66. This was the view taken of s.1(1) of the 1964 Act by Slade J in Earl of Lonsdale v. Attomey-Ceneral [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.
67. 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, cols.587–590 (28 June 1961)).
68. See e.g. Maxwell on the Interpretation of Statutes (12th edn, by P. St J. Langan, 1969), pp.169–173.
69. HL Hansard, 5th ser., Vol.474, col.l 130.
70. 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 tatter'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).
71. 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)).
72. Parliamentary Papers, 1991–1992, HC Paper 17–11, p.180.
73. 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 seabed out to the 12-mile limit” (The Field, May 1995, p.52).
74. 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. T. Daintith and G. D. M. Willoughby (Eds), United Kingdom Oil and Gas Law (2nd edn, 1984), esp. paras.1–119,1–203,1–231/2
75. P. D. Cameron, Property Rights and Sovereign Rights: the Case of North Sea Oil (1983), esp. pp.42–56.
76. 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.