Towards certainty of seabed jurisdiction beyond 200 nautical miles from the territorial sea baseline: Australia's submission to the commission on the limits of the Continental Shelf

Ocean Development and International Law

Volumn 36, Issue 3, 2005, Pages 201-217

  Serdy, Andrew ^a,b  

^a UNIVERSITY OF SOUTHAMPTON   (United Kingdom)

^b AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

Australia; Commission on the Limits of the Continental Shelf; Extended continental shelf; UNCLOS Article 76

Indexed keywords

CONTINENTAL SHELF; LAW OF THE SEA; LEGISLATION; TERRITORIAL DELIMITATION;

AUSTRALASIA; AUSTRALIA; EASTERN HEMISPHERE; WORLD;

EID: 24344436397     PISSN: 00908320     EISSN: None     Source Type: Journal    
DOI: 10.1080/00908320591004298     Document Type: Article

References (81)

1. Convention on the Continental Shelf, 29 April 1958, entered into force on 10 June 1964; 499 United Nations Treaty Series 312.
2. The Truman Proclamation (Proclamation No 2667, Concerning the Policy of the United States with respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 28 September 1945, (1945) 10 Federal Register 12303) refers in both its title and its sole operative paragraph to "natural resources" simpliciter, though one of the preambular paragraphs recites the "world-wide need for new sources of petroleum and other minerals."
3. S.V. Scott, "The Inclusion of Sedentary Fisheries within the Continental Shelf Doctrine" (1992) 41 International and Comparative Law Quarterly 788 at 795-797 recounts on the basis of documents released under the Archives Act 1983 (Cth) the successful behind-the-scenes campaign by the Solicitor-General, Sir Kenneth Bailey, to move the International Law Commission from the position it had taken in its original 1951 draft articles, where the commentary on the sedentary fisheries provision makes clear that such fisheries should he regulated independently of its proposed regime for the continental shelf, which would be confined to nonliving resources.
4. See "Draft Articles on the Continental Shelf and Related Subjects" (Annex to Report of the International Law Commission covering the work of its third session, 16 May-27 July 1951 (UN doc A/1858)), reprinted in Yearbook of the International Law Commission 1951, Vol II, 123 at 143.
5. Australia was also one of the cosponsors of the compromise amendment to the ILC draft article which, after deletion of its final phrase, became Article 2(4) of the Convention. Scott, id., at 805-806.
6. UN General Assembly Resolution 2749 (XXV), Declaration of Principles Governing the Sea-bed and the Ocean Floor, and the Subsoil thereof Beyond the Limits of National Jurisdiction, adopted on 17 December 1970, paragraph 1.
7. United Nations Convention on the Law of the Sea, done at Montego Bay, 10 December 1982, entered into force on 16 November 1994; 1833 United Nations Treaty Series 3.
8. On Australia's role in relation to the continental shelf at the Third United Nations Conference on the Law of the Sea, see generally: M. Landale and H. Burmester, "Australia and the Law of the Sea - Offshore Jurisdiction" in K.W. Ryan (ed), International Law in Australia, 2nd ed. (Sydney: Law Book Co, 1984), 390 at 404-408.
9. A nautical mile equals 1852 meters. Subsequent references to "miles" herein should be taken as nautical miles.
10. See generally: T.L. McDorman, "The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World" (2002) 17 International Journal of Marine and Coastal Law 301
11. and "Report of the Committee on Legal Issues of the Outer Continental Shelf," in International Law Association, Report of the Seventy-First Conference, Berlin 2004 (London, 2004), 773-819.
12. P.R.R. Gardiner, "The Limits of the Sea Beyond National Jurisdiction - Some Problems with Particular Reference to the Role of the Commission on the Limits of the Continental Shelf," in G. Blake (ed), Maritime Boundaries and Ocean Resources (London & Sydney: Croom Helm, 1987), 63 at 69.
13. In the North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic of Gerrnany/Netherlands), [1969] I.C.J. Reports, 3 at p. 22, the International Court of Justice confirmed that "the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land...."
14. Federal Republic of Germany/Netherlands).[1969] I.C.J. Reports, 3 at p. 22, the International Court of Justice confirmed that "the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land...."
15. United Nations Convention on the Law of the Sea: Submission to the Commission on the Limits of the Continental Shelf on the Outer Limits of Australia's Continental Shelf Extending Beyond 200 Nautical Miles from the Territorial Sea Baseline - Executive Summary (hereinafter Australian Executive Summary). The Australian submission and a number of supporting documents are available on the website of the United Nations Secretariat's Division for Ocean Affairs and the Law of the Sea (DOALOS) at .
16. Commonwealth of Australia Gazette, No. 56, 11 September 1953.
17. D.P. O'Connell, "Sedentary Fisheries and the Australian Continental Shelf" (1955) 49 American Journal of International Law 185 at 187-188
18. and Y. Matsuda, "Postwar Development and Expansion of Japan's Tuna Fishery" in D.J. Doulman (ed.), Tuna Issues and Perspectives in the Pacific Islands Region (Honolulu: Pacific Islands Development Program, 1987), 71 at 72.
19. Truman Proclamation, supra note 1.
20. See: Tomas H. Heidar, "Legal Aspects of Continental Shelf Limits" in M.H. Nordquist, J. Norton Moore and T.H. Heidar (eds.), Legal and Scientific Aspects of Continental Shelf Limits (Leiden/ Boston: Martinus Nijhoff, 2004), 19 at 21.
21. Pearl Fisheries Act 1952 (Cth), section 5(3), inserted by Pearl Fisheries Act 1953 (No.2) section 3(5).
22. The original Proclamation does not refer to any Act and was thus made under the executive power of the Commonwealth in Chapter II of the Australian Constitution. Had it been made under the pearling legislation, the sovereign rights would have extended only to pearling activities. See also: L.F.E. Goldie, "Australia's Continental Shelf: Legislation and Proclamations" (1954) 3 International and Comparative Law Quarterly 535 at 540;
23. O'Connell, supra note 10, at 193;
24. and Scott, supra note 1, at 798.
25. Petroleum (Submerged Lands) Act 1967 (Cth), section 157(3).
26. Continental Shelf (Living Natural Resources) Act 1968 (Cth), section 5(1).
27. Seas and Submerged Lands Act 1973 (Cth), section 12.
28. Treaty between the Government of Australia and the Government of New Zealand Establishing Certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries, done at Adelaide, 25 July 2004; available from the Australian Treaties Library, accessible through the website of the Australian Department of Foreign Affairs and Trade, at [2004] Australian Treaties Not in Force 1.The Seas and Submerged Lands (Limits of Continental Shelf in the Tasman Sea and South Pacific Ocean) Proclamation 2004 (Commonwealth of Australia Gazette, No. S524, 20 December 2004) is expressed by section 2 to enter into force simultaneously with the treaty.
29. Commonwealth of Australia Gazette, No. S189, 26 September 1979.
30. Commonwealth of Australia Gazette, No. S297, 13 November 1990. The 3-mile limit which it replaced was not derived from any legislative enactment but applied by common law on the assumption of the drafters of the Australian Constitution that "[b]y the law of nations the territorial limits of a country are allowed to extend into every part of the open sea one marine league from the coast, measured from the low water mark."
31. J. Quick and R.R. Garran, The Annotated Constitution of the Australian Commonwealth (Sydney: Angus & Robertson, 1901), at 354.
32. Commonwealth of Australia Gazette, No. S290, 29 July 1994.
33. See also the Seas and Submerged Lands Amendment Proclamation 2004 (No. 1) (Commonwealth of Australia Gazette, No. S525, 20 December 2004),
34. expressed by section 2 to enter into force simultaneously with the treaty with New Zealand, supra note 16.
35. Commonwealth of Australia Gazette, No. S148, 7 April 1999.
36. Maritime Legislation Amendment Act 1994 (Cth), section 11.
37. Australian Executive Summary, supra note 8, at 4.
38. The executive summaries of these submissions are available on the DOALOS website at and www.un.org/Depts/los/clcs_new/ submissions_files/submission_bra.htm, respectively, including. in each case, a number of maps illustrating the location of the outer limits submitted.
39. "Decision regarding the date of commencement of the ten-year period for making submissions to the Commission on the Limits of the Continental Shelf set out in article 4 of Annex II to the United Nations Convention on the Law of the Sea," UN doc SPLOS/72 (29 May 2001), available on the DOALOS website.
40. The Note may be viewed on the "New developments and recent additions" section of the DOALOS website, at .
41. See the Australian Executive Summary, supra note 8. At 5 it adopts the term "extended continental shelf' for the part of the continental shelf lying more than 200 miles from the territorial sea baseline. That term is used with the same meaning in this article.
42. "Rules of Procedure of the Commission on the Limits of the Continental Shelf," UN doc CLCS/40 (2 July 2004), available on the Commission website. Rule 50 provides that: The Secretary-General shall, through the appropriate channels, promptly notify the Commission and all States Members of the United Nations, including States Parties to the Convention, of the receipt of the submission, and make public the executive summary including all charts and coordinates ... contained in that summary, upon completion of the translation of the executive summary referred to in rule 47, paragraph 3.
43. "Rules of Procedure," Rule 51(1): Upon receipt of a submission by the Secretary-General, the consideration of that submission shall be included in the provisional agenda of the next ordinary session of the Commission ... provided that that session ... is held not earlier than three months after the date of the publication by the Secretary-General of the executive summary including all charts and coordinates referred to in rule 50.
44. The recommendations to the Russian Federation were made at the Commission's eleventh session in June 2002. "Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission," UN doe CLCS/34 (1 July 2002), paragraph 33. For a summary of the recommendations, see the Addendum to Oceans and the Law of the Sea - Report of the Secretary-General, UN doe A/57/57/ Add.1 (8 October 2002), paragraphs 39-41. After a preliminary analysis of Brazil's submission during the Commission's fourteenth session in August-September 2004, the subcommission reported that the two weeks of meetings it was scheduled to hold immediately after that session would not be sufficient for it to formulate draft recommendations to the Commission, and that further work was required both intersessionally and at the fifteenth session: "Statement by the Chairman of the Commission on the Limits of the Continental Shelf," UN doc CLCS/42 (14 September 2004), paragraph 25.
45. "Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf," UN doc CLCS/11 (13 May 1999), at 78 (paragraph 9.4.9).
46. Ibid., at 71 (paragraph 9.1.3).
47. Ibid., at 72 (paragraph 9.1.4(b)).
48. Ibid., at 72 (paragraph 9.1.4(c)).
49. Ibid., at 72 (paragraph 9.1.4(d)).
50. Ibid., at 78 (paragraph 9.4.11).
51. Mr. Symonds was elected for the second (2002-07) quinquennium of the Commission. See "Report of the Twelfth Meeting of States Parties," UN doe SPLOS/91 (13 June 2002), at 13-14 (paragraph 100).
52. Paragraph 6 of Article 76 substitutes on submarine ridges a single constraint of 350 miles from the baselines from which the breadth of the territorial sea is measured, overriding paragraph 5, but does not apply to "submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs." Paragraph 10 states that: "The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts."
53. Archives Act 1983 (Cth), section 3(7).
54. Australian Executive Summary, supra note 8, at 5. The discrepancies presumably exclude rounding errors, since these will inevitably affect every single point.
55. S.B. Kaye, Australia's Maritime Boundaries, 2nd ed. (Wollongong: Centre for Maritime Policy, University of Wollongong, 1999), at 174.
56. Article IV(1) of the Antarctic Treaty (done at Washington, 1 December 1959, entered into force 23 June 1961; 402 71) prohibits the making of a new claim or the enlargement of an existing claim to territorial sovereignty while that Treaty is in force.
57. The U.S. Note may be viewed at (visited on 10 January 2005). Though not party to UNCLOS, the United States had also made its views known to the Commission on both the Russian and Brazilian submissions, see its letters of 28 February 2002 and 25 August 2004 at and www,un.org/Depts/los/clcs_new/ submissions_files/bra04/clcs_02_2004_los_usatext.pdf, respectively.
58. The English translation of the Russian Note may be viewed at .
59. See .
60. Note that this cannot have been how Brazil interpreted this wording in denying in its submission that there was any dispute, even though its maritime boundary with Uruguay in the south runs only to the outer limit of the territorial sea. See Exchange of Notes constituting an agreement on the definitive demarcation of the sea outlet of the River Chui and the lateral maritime i United Nations Treaty Series 133. To the north, on the other hand, Brazil's boundary with French Guiana expressly includes the continental shelf as one of the maritime zones delimited by the single line of constant compass direction. Maritime Delimitation Treaty between the Federative Republic of Brazil and the French Republic, done at Paris, 30 January 1981, entered into force on 19 October 1983, 1340 United Nations Treaty Series 3, Article 1(1).
61. Treaty between the Government of Australia and the Government of the Republic of Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, done at Perth, 14 March 1997; available for download from the Australian Treaties Library, accessible through the website of the Australian Department of Foreign Affairs and Trade, at [1997] Australian Treaties Not in Force 4.
62. Australia-New Zealand Treaty, supra note 16.
63. Agreement on Maritime Delimitation between the Government of Australia and the Government of the French Republic, done at Melbourne on 4 January 1982, entered into force on 10 January 1983; 1329 United Nations Treaty Series 107 and Australian Treaty Series 1983 No. 3.
64. Australian Executive Summary, supra note 8, at 18 (Kerguelen Plateau, where the boundary would be extended to the west) and 35 (Three Kings Ridge, where the boundary would be extended to the east).
65. Australia-France Treaty, supra note 48.
66. Kaye, supra note 40, at 154-156.
67. Since point R22 lies 200 miles from Australian and French territory, there is no reason to think that this is where the influence of Matthew Island begins, as Kaye assumes, supra note 40 at 149. The arc forming the first part of the outer limit of the extended continental shelf east of point R22 in the maps on pages 36 and 37 of Australia's Executive Summary is clearly drawn from Walpole Island.
68. The information in this section is drawn from the Executive Summary of the Australian submission, supra note 8, at 8-42. In some regions affected by delimitation treaties, the number of points exceeds those stated in the Executive Summary, which counts only those fixed points on the parts of the outer limit constructed by direct application of article 76.
69. Australia-Indonesia Treaty, supra note 42.
70. Such as that reproduced on the front cover of the first (1995) edition of the work by Kaye, supra note 40.
71. In a joint media release with a Cabinet colleague, the Australian Minister for Foreign Affairs stated that "it was believed that the continental shelf off our Antarctic Territory extended up to a further 150 [miles] beyond our existing EEZ-an area the size of Queensland." Robert Hill, Minister for the Environment and Heritage, and Alexander Downer, Minister for Foreign Affairs, "Move to Claim Extended Antarctic Continental Shelf," 2 December 1999, available for download from . The area enclosed by the outer limit ultimately submitted by Australia is in fact less than that of New South Wales, a much smaller State than Queensland.
72. Australia-France Treaty, supra note 48.
73. For the coordinates of points S1 to S8 see Article 2(1) of the Australia-France Treaty, supra note 48.
74. The overview map (Figure 1) is on page 5 of the Executive Summary, supra note 8.
75. This is derived from a comparison of the tables of coordinates in the Annexes for the outer limits of the two overlapping regions.
76. Australia-France Treaty, supra note 48.
77. Australia-New Zealand Treaty, supra note 16.
78. I b i d.
79. This is confirmed by the background information released jointly by the two Governments at the time of the 2004 treaty's signature, see (paragraph 28).
80. Australia-New Zealand Treaty, supra note 16.
81. Paragraph 27 of the joint background information, supra note 63, includes the following sentences; "In relation to the Three Kings Ridge, the proposed boundary line is drawn so as to leave most of the Ridge under New Zealand jurisdiction. This is because the natural prolongation from New Zealand's North Island to the Three Kings Ridge is more obvious than that from Australia's Norfolk Island, and hence the legal and the technical case for its connection with Three Kings Ridge is more straightforward."