Kaye, Stuart --- "The Use of Multiple Boundaries in Maritime Boundary Delimitation: Law and Practice" [1998] AUYrBkIntLaw 3; (1998) 19 Australian Year Book of International Law 49
[*] Senior lecturer in Law, University of Tasmania.
[1] The first 200 nautical mile zone was claimed by Chile in 1947: Presidential Declaration, 23 June 1947, 1 United Nations Legislative Series 6.
[2] Presidential Proclamation No 2667, “Policy of the United States with respect to the natural resources of the subsoil and seabed of the continental shelf”, 28 September 1945: reprinted in SH Lay, RR Churchill and M Nordquist (eds), New Directions in the Law of the Sea (vol 1, 1973) 106.
[3] DJ Attard, The Exclusive Economic Zone in International Law (1987) at 136-139; MD Evans, “Delimitation and the common maritime boundary” (1993) 64 British Yearbook of International Law 283 at 286-293.
[4] United Nations Convention on the Law of the Sea (December 10 1982), reprinted in (1982) 21 International Legal Materials 1261 [hereafter cited as LOSC].
[5] Continental Shelf (Libya v Malta) Case [1985] ICJ Rep 13, 33.
[6] An excellent discussion of the debate and the changing position in international law over the single all-purpose maritime boundary has been undertaken by Weil: see P Weil, The Law of Maritime Delimitation: Reflections (1989) at 117-135.
[7] For a succinct history of the development and content of the regime of the continental shelf and EEZ in international law see RR Churchill and AV Lowe, The Law of the Sea (2nd ed, 1988) at 133-176.
[8] Convention on the Continental Shelf (June 10 1958), 499 UNTS 311.
[9] As much was explicitly recognised by the Chamber of the International Court of Justice in 1984 in the Gulf of Maine Case [1984] ICJ Rep 246, 294.
[10] LOSC, n 4 above, Article 77(1).
[11] Ibid. Article 80.
[12] Ibid. Article 81.
[13] Ibid. Article 85.
[14] Ibid. eg Articles 60-73.
[15] Ibid. Article 68, which states: “This Part [ie Part V] does not apply to sedentary species as defined in Article 77, paragraph 4.”
[16] Attard, n 3 above, at 140-143.
[17] This is explicitly spelled out in identical terms for both regimes under LOSC, n 4 above, Articles 74 and 83.
[18] See below at Divided Boundaries: International Practice.
[19] LOSC, n 4 above, Articles 56(1)(b)(i) and 60.
[20] Ibid. Article 80.
[21] Ibid. Article 60(2).
[22] Ibid. Articles 60(4) and 60(5). See B Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (1989) at 120-123.
[23] One of these features was subsequently proclaimed as independent by its occupiers under the name “Sealand”. For a discussion see SP Menefee, “‘Republics of the reefs’: nation-building on the continental shelf and in the world’s oceans” (1994) 25 California Western International Law Journal 81.
[24] LOSC, n 4 above, Articles 60(4) and 60(5).
[25] The safety zones cannot be used to cause interference to recognised international sea lanes: ibid. Article 60(7).
[26] Ibid. Article 60(3).
[27] For discussions of marine protection within the EEZ see F Orrego Vicuña, The Exclusive Economic Zone (1987) at 83-90; Kwiatkowska, n 22 above, at 120-123.
[28] For example, see Trial Smelter Arbitration (US v Canada) (1938 and 1941) 3 RIAA 1905.
[29] Interestingly, a situation of this type did occur in the vicinity of an area now subject to split water column and seabed jurisdiction. In 1970, the Oceanic Grandeur ran aground in Torres Strait, spilling oil. The pearl oyster industry of the Strait was decimated by a strange disease in the 18 months following the oil spill. Suspicions of a causal link between the spill and the collapse of the industry have been periodically raised: see SB Kaye, The Torres Strait (1997) at 122.
[30] LOSC, n 4 above, Article 56(1)(b)(ii).
[31] See Kwiatkowska, n 22 above, at 134-155.
[32] Churchill and Lowe do not suggest that exploration is not research, merely that there is a difference in treatment for applied and pure research under the Convention: Churchill and Lowe, n 7 above, at 293.
[33] Continental Shelf (Tunisia v Libya) Case [1982] ICJ Rep 18.
[34] Ibid. 232.
[35] Ibid.
[36] Evans provides an excellent summary of the differing positions on the relationship of the regimes: Evans, n 3 above, at 286-293.
[37] Attard, n 3 above, at 214-221; DW Bowett, The Regime of Islands in International Law (1979) at 189; Orrego Vicuña, n 27, at 196-197; DM McRae, “The single maritime boundary: problems in theory and practice” in ED Brown and RR Churchill (eds), The UN Convention on the Law of the Sea: Impact and Implementation (1987) 225 at 227.
[38] McRae, ibid. at 227.
[39] The same argument is raised by MD Evans, Relevant Circumstances and Maritime Delimitation (1989) at 55.
[40] See n 33 above, at 130; McRae, n 37 above, at 230-232.
[41] Tunisia v Libya Continental Shelf case, ibid. at 115.
[42] Gulf of Maine case, n 9 above, at 246, 257; Attard, n 3 above, at 219.
[43] Jan Mayen Case [1993] ICJ Rep 38, 57.
[44] See generally North Sea Continental Shelf Cases [1969] ICJ Rep 3.
[45] Ibid. at 62.
[46] Bowett, n 37 above, at 189.
[48] Orrego Vicuña, n 27 above, at 207-208.
[49] Attard, n 3 above, at 214.
[50] LOSC, n 4 above, Article 56(1).
[51] Evans, n 3 above, at 56-58.
[52] Gulf of Maine case, n 9 above, at 295.
[53] Orrego Vicuña, n 27 above, at 199.
[54] Tunisia v Libya Continental Shelf case, n 33 above.
[55] Libya v Malta Continental Shelf case, n 5 above.
[57] Ibid. at 288; cited in Attard, n 3 above, at 213.
[58] Tunisia v Libya Continental Shelf case, ibid. at 296.
[59] Gulf of Maine case, n 9 above, at 301-302.
[60] Attard, n 3 above, at 220-221; Orrego Vicuña, n 27 above, at 202.
[61] Gulf of Maine case, n 9 above, at 327.
[62] Orrego Vicuña, n 27 above, at 201-203.
[63] Guinea v Guinea-Bissau Arbitration, reprinted in (1986) 25 International Legal Materials 251; Orrego Vicuña, n 27 above, at 205; Attard, n 3 above, at 221.
[64] Agreement establishing a Court of Arbitration for the Purpose of Carrying out the Delimitation of Maritime Areas between France and Canada, 30 March 1989, (1992) 31 International Legal Materials 1151, Article 2(1).
[65] St Pierre and Miquelon Arbitration reprinted in (1992) 31 International Legal Materials 1148 at 1163.
[66] Ibid. at 1165.
[67] For example see Weil, n 6 above, at 25-45.
[68] Libya v Malta Continental Shelf case, n 5 above, at 20-21.
[69] Ibid. at 35.
[71] Ibid. at 61-62.
[73] LOSC, n 4 above, Article 76.
[74] Ibid. Article 77.
[75] The most useful summary of the then existing JDZs and other maritime joint arrangements was undertaken by a research team under the auspices of the British Institute of International and Comparative Law in 1989: H Fox (ed), Joint Development of Offshore Oil and Gas (vol 1, 1989) at 53-113.
[76] Not surprisingly, this has been argued before: see JRV Prescott, “On the resolution of maritime boundary conflicts” in JP Craven, J Schneider and C Stimson (eds), The International Implications of Extended Maritime Jurisdiction in the Pacific (1989) 38; RR Churchill, “Joint Development Zones: international legal issues” in Fox, n 75 above, vol 2, 55 at 57-58.
[77] The desire to preserve the traditional rights and way of life of the Torres Strait Islanders was an important factor in the establishment of a joint zone in Torres Strait: H Burmester, “The Torres Strait Treaty: ocean boundary delimitation by agreement” (1992) 76 American Journal of International Law 321 at 322.
[78] I Townsend-Gault, “Recent developments in the cooperative development of offshore petroleum resources” in TA Clingan (ed), The Law of the Sea: What Lies Ahead? (1988) 215.
[79] Agreement between Japan and the Republic of Korea concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, 30 January 1974, reprinted in M Nordquist and KR Simmonds (eds), New Directions in the Law of the Sea (vol 4, 1981) at 113; Townsend-Gault, n 78 above, at 217-220; Orrego Vicuña, n 27 above, at 209; GH Blake, “World maritime boundary delimitation: the state of play” in GH Blake (ed), Maritime Boundaries and Ocean Resources (1987) 1 at 9-10; JRV Prescott , The Maritime Political Boundaries of the World (1985) at 242; Fox, n 75 above, vol 1, at 57-59; see also M Miyoshi, “The Japan/South Korea Joint Development Agreement of 1974” in Fox, n 75 above, vol 1, at 89.
[80] Agreement Relating to the Joint Exploitation of the Natural Resources of the Sea-bed and Sub-soil of the Red Sea Common Zone, 16 May 1974, 18 United Nations Legislative Series 43; see Attard, n 3 above, at 218; Blake, n 79 above, at 9-10; Orrego Vicuña, n 27 above, at 209; Townsend-Gault, n 78 above, at 217; Fox, n 75 above, vol 1, at 60.
[81] Memorandum of Understanding Between Malaysia and the Kingdom of Thailand on the Establishment of a Joint Authority for the Exploitation of the Resources of the Seabed in a Defined Area of the Continental Shelf of the Two Countries, 21 February 1979, reprinted in (1983) 1 LOS Bulletin 113; see Townsend-Gault, n 78 above, at 220-221; Prescott notes that a line is drawn through the zone to indicate criminal jurisdiction, but the agreement specifically states that this line is not to be the boundary: JRV Prescott, The Gulf of Thailand: Maritime Limits to Conflict and Cooperation (1998) at 32-33; Fox, n 75 above, vol 1, at 61-62; see also I Townsend-Gault, “The Malaysia/Thailand Joint Development Arrangement” in Fox, n 75 above, vol 1, at 102.
[82] Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, 11 December 1989, (1991) 9 Australian Treaty Series.
[83] Prescott, n 81 above, at 86; Fox et al also note that the Thailand-Malaysia JDZ Agreement can be terminated at any time prior to the expiration of 50 years by agreement: Fox, n 75 above, vol 1, at 61.
[84] LOSC does countenance the use of temporary arrangements. Articles 74(3) and 83(3) expressly urge States to pursue temporary arrangements of a practical nature to assist in the resolution of delimitation disputes.
[85] Agreement Concerning Delimitation of the Continental Shelf between Saudi Arabia and Bahrain, 22 February 1958, 16 UNTS 409; see Townsend-Gault, n 78 above, at 216; Orrego Vicuña, n 27 above, at 209; Prescott, n 81 above, at 169; Blake, n 79 above, at 9-10; Fox, n 75 above, vol 1, at 54.
[86] Agreement on the Declaration of Marine and Submarine Areas and Maritime Co-operation, 13 January 1978, reprinted in M Nordquist and KR Simmonds (eds), New Directions in the Law of the Sea (vol 8, 1981) 78; see Blake, n 79 above, at 10; Prescott, n 81 above, at 344.
[87] Agreement on the Continental Shelf Between Iceland and Jan Mayen, 22 October 1982, reprinted in (1982) 21 International Legal Materials 1222.
[88] RW Smith, “A geographical primer to maritime boundary making” (1982) 12 Ocean Development and International Law 1 at 1-9; Attard, n 3 above, at 218; Fox, n 75 above, vol 1, at 62-63.
[89] Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the Two Countries, including the area known as Torres Strait and Related Matters, 18 December 1978, (1985) 4 Australian Treaty Series [hereafter cited as Torres Strait Treaty]; see also Burmester, n 77 above, at 322; Attard, n 3 above, at 217-218.
[90] Prescott, n 81 above, at 76; Townsend-Gault, n 78 above, at 221; for a general discussion of joint arrangements on both land and sea in terms of oil deposits, see WT Onorato, “Apportionment of an international common petroleum deposit” (1968) 17 International and Comparative Law Quarterly 85.
[91] North Sea Continental Shelf cases, n 44 above, at 1, 52.
[92] For a background to the Treaty see generally Burmester, n 77 above, at 321-333; Kaye, n 29 above, at 87-101.
[93] The path of the boundaries are described in Article 4, together with Annexes 5 and 8 of the Torres Strait Treaty.
[94] The seabed boundary runs to the north of a median line between the two mainlands due to the presence of a number of significant Australian islands in the south of the Strait: see Kaye, n 29 above, at 95; Burmester, n 77 above, at 333.
[95] This configuration has been described as a “top hat”: Burmester, n 77 above, at 338; B Opeskin and DR Rothwell, “Australia’s territorial sea: international and federal implications of its extension to 12 miles” (1991) 22 Ocean Development and International Law 395 at 399-401.
[96] Torres Strait Treaty, n 89 above, Article 3. One small island, Pearce Cay, lies less than three miles north of the common seabed/fisheries boundary, and possesses a three-mile territorial sea to the north of the boundary, and a 12-mile territorial sea to the south of the boundary: Opeskin and Rothwell, ibid. at 400-401.
[97] The basepoint provisions are found in Torres Strait Treaty, Annex 3; see Prescott, n 81 above, at 69.
[98] The Protected Zone is established under Article 10 of the Torres Strait Treaty, and its limits are described in Annex 9.
[99] Torres Strait Treaty, Article 11(1).
[100] Ibid. Articles 11(2) and 12.
[101] Ibid. Article 13.
[102] Allocation of commercial catches is dealt with in Part 5 of the Torres Strait Treaty. See generally KW Ryan and MWD White, “The Torres Strait Treaty” [1976] AUYrBkIntLaw 5; (1981) 7 Aust YBIL 87 at 103.
[103] Torres Strait Treaty, Articles 21 and 22.
[104] Ibid. Article 23.
[105] Ibid. Article 23(7).
[106] See generally Commonwealth of Australia, Torres Strait Protected Zone Joint Authority Annual Report 1993-94 (1995) at 24-25; K Mfodwo and BM Tsamenyi, Enforcement of Maritime Fisheries Law and Regulations: A Case Study of Papua New Guinea in International and Comparative Perspective (1992) at 151-157.
[107] Joint monitoring and consultation encouraged under Articles 23 and 24, Torres Strait Treaty, has taken place with respect to dugong, spanish mackerel and green turtle: Commonwealth of Australia, ibid. at 10-11.
[108] Papua New Guinea proclaimed an EEZ under its National Seas Act 1978 (PNG) with effect from 31 March 1978.
[109] Residual jurisdiction is defined in Article 4(4), Torres Strait Treaty.
[110] Torres Strait Treaty, Article 4(4), while expressly referring to marine scientific research, preservation of the marine environment, and the production of energy, was not intended to be exhaustive, and these areas were merely cited as examples. See Mfodwo and Tsamenyi, n 106 above, at 135-136.
[111] Torres Strait Treaty, Article 4(3)(b).
[112] See generally D Renton, “The Torres Strait Treaty after 15 years: some observations from a Papua New Guinea perspective” in J Crawford and DR Rothwell (eds), The Law of the Sea in the Asian Pacific Region (1995) 171.
[113] See R Babbage, The Strategic Significance of Torres Strait (1990) at 296-97; Kaye, n 29 above, at 11-12.
[114] Torres Strait Treaty, Article 15.
[115] Ibid. Article 26.
[116] Ibid. Article 11.
[117] Treaty between the Government of Australia and the Government of the Republic of Indonesia establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, 14 March 1997, reprinted in (1997) 36 International Legal Materials 222 [hereafter cited as Australia-Indonesia Maritime Boundary Treaty].
[118] The Timor Gap arrangements were expressly preserved by virtue of Article 8, Australia-Indonesia Maritime Boundary Treaty.
[119] For background see SB Kaye, “The Australia/Indonesia Maritime Boundary Treaty: a review” (1997) 94 Maritime Studies 28; SB Kaye, “Australia and Indonesia tie the maritime knot” (1997) 71 Australian Law Journal 916.
[120] For the water column: Article 7(a), Australia-Indonesia Maritime Boundary Treaty; and for the continental shelf: Article 7(b), Australia-Indonesia Maritime Boundary Treaty.
[121] Australia-Indonesia Maritime Boundary Treaty, Article 7(e).
[122] LOSC, n 4 above, Article 60(3).
[123] Attorney-General’s Department, Submissions to the Joint Standing Committee on Treaties Inquiry into the Australia-Indonesia Maritime Delimitation Treaty, 5 November 1997, at 3a-3d.
[124] Australia-Indonesia Maritime Boundary Treaty, n 117 above, Article 7(h).
[125] Ibid. Article 7(f).
[126] Ibid. Article 7(d).
[127] This is confirmed by the submission of the Attorney-General’s Department to the Parliamentary Treaties Committee Inquiry into the Treaty, an interpretation that was expressly adopted by the Committee in its Report: Attorney-General’s Department, Submissions to the Joint Standing Committee on Treaties Inquiry into the Australia-Indonesia Maritime Delimitation Treaty, 5 November 1997, at 3c.
[128] Ibid. at 3b.
[129] Australia-Indonesia Maritime Boundary Treaty, n 117 above, Article 7(c).
[131] Pursuant to Vienna Convention on the Law of Treaties 1969, Article 32, (1969) 8 International Legal Materials 679.
[132] Australia-Indonesia Maritime Boundary Treaty, n 117 above, Article 7(k).
[133] Ibid. Article 7(k): “each Party shall be liable in accordance with international law for the pollution of the marine environment caused by activities under its jurisdiction.”
[134] Memorandum of Understanding between the Governments of Australia and Indonesia on Oil Pollution Preparedness and Response, 3 September 1996 and 3 October 1996, unpublished. I am grateful to Max Herriman for providing me with a copy of the MOU.
[135] M Herriman and BM Tsamenyi, “The 1997 Australia-Indonesia Maritime Boundary Treaty: a secure legal regime for offshore resource development?” in Submissions to the Joint Standing Committee on Treaties Inquiry into the Australia-Indonesia Maritime Delimitation Treaty — 12th Report, 17 November 1997, 111-131.
[136] Australia-Indonesia Maritime Boundary Treaty, n 117 above, Article 7(m) and 7(n).
[137] For example see SB Kaye, Australia’s Maritime Boundaries (1995) ch 2.