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Clive Schofield[1]
Australia has taken significant steps recently towards defining the extent of its maritime jurisdiction. These include the conclusion of a maritime boundary treaty with New Zealand, the submission of a claim to extended continental shelf rights to the United Nations Commission on the Limits of the Continental Shelf and a number of agreements relating to jurisdictional rights and resource sharing in the Timor Sea. This article provides an overview of Australian claims to maritime jurisdiction and then examines recent developments.
Australia boasts an extremely long coastline, giving rise to correspondingly long baselines from which claims to broad maritime jurisdictional zones have been made. Potential maritime boundaries exist where these maritime claims overlap with those of Australia’s maritime neighbours. Australia has, over time, been active and successful in seeking to delimit many of these international maritime boundaries.
Recently, Australia has taken further significant steps towards clarifying the extent of its maritime jurisdiction through the conclusion of a maritime boundary delimitation agreement with New Zealand in respect of the Tasman Sea (2004) and a number of maritime arrangements with the Democratic Republic of Timor Leste (hereinafter East Timor) concerning the sharing of the resources of the Timor Sea (2002, 2003 and 2006). Furthermore, on 15 November 2004 Australia submitted its claim for continental shelf beyond 200 nautical miles (nm) from the coast to the United Nations (UN) Commission on the Limits of the Continental Shelf (CLCS).[2]These developments, once finalised,[3] will virtually complete Australia’s system of maritime boundaries. The major exception here being the limits of the Australian Antarctic Territory (AAT), delimitation of which is constrained by the terms of the Antarctic Treaty and the attitude of Australia’s Antarctic neighbours. This article provides a brief introductory overview of Australia’s claims to maritime jurisdiction, including its baselines. Australia’s overall delimitation experience is then reviewed prior to consideration of these recent developments. The question of what remains to be done in defining Australia’s maritime boundaries and limits is then addressed.
The international law rules concerning baselines, maritime claims and the delimitation of maritime boundaries are largely codified the United Nations Convention on the Law of the Sea (LOSC), and its predecessors, notably the Geneva Conventions of 1958.[4] Australia ratified LOSC on 5 October 1994.
Australia’s coastline, including islands, is estimated at almost 60,000 kilometres (km).[5]
This coastline provides the basis for Australia’s baselines. The significance of such baselines lies in the fact that a coastal State’s zones
of maritime jurisdiction – territorial sea, contiguous zone, continental shelf and exclusive economic zone (EEZ) – are all measured from them. The establishment of the location of a coastal State’s baselines is therefore a necessary precursor to defining the limits of its zones of maritime jurisdiction, as it is essential to determine the points from which the specified breadth of such zones are measured. Baselines also represent the outer limit of a State’s internal water[6]6 and basepoints along these baselines may be crucial to the construction of equidistance-based maritime boundaries with neighbouring States.
Under usual circumstances, that is, in the absence of a claim to other types of baselines such as straight baselines, a coastal State has what are referred to in LOSC as ‘normal’ baselines. According to Article 5 of LOSC, a coastal State’s normal baseline is defined as ‘the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.’[7] Normal baselines are the predominant type of baseline used by States and are, in effect, a State’s ‘default’ baseline. This certainly holds true for Australia. Indeed, in Australia’s case, the vast majority, 72.3 per cent, of its baselines are normal, low-water, baselines.[8]
A key issue in this context is which of many possible low-water lines to use as the normal baseline. This is dependent on the choice of vertical datum. That is, the level of reference for vertical measurements, such as depths and heights of tide. This is an important consideration because the lower the low-water line selected, the further seaward the normal baseline will lie.[9] The choice of vertical datum will also impact on the status of certain insular features, for example, whether a particular feature is an island or a low-tide elevation. This, in turn, can have significant implications in terms of the capacity of a particular feature to generate extensive maritime claims to jurisdiction.[10] The LOSC does not specify a particular vertical datum, leaving the choice up to the coastal State.[11] As of February 1983, Australia adopted lowest astronomical tide as the low-water datum for determining its normal baselines.[12]
Where particular, restricted, geographical circumstances exist, Article 7 of LOSC allows States to depart from the application of the normal baseline and measure maritime jurisdictional zones from straight baselines drawn along selected parts of their coastlines. In particular, Article 7 allows the application of straight baselines in localities where ‘the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.’[13]The intention of Article 7 of LOSC and its predecessor, Article 4 of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, is to cater for unusual coastal geography where the configuration of the coastline is such that simply using normal baselines and bay closing lines would result in a complex mosaic of enclaves or pockets of non-territorial sea surrounded by the State’s territorial sea. However, the imprecise nature of the provisions of Article 7 and the lack of any objective test for validity of a particular straight baseline system has led to wide interpretation in State practice and a significant number of what might be termed excessive claims.[14]
Australia claimed straight baselines encompassing parts of the southern coastlines of New South Wales and Tasmania through a Proclamation dated 24 October 1974.[15] This initial claim was superseded by a Proclamation of 4 February 1983, which defined a total of 396 straight baselines, including 297 baseline segments around the mainland coast.[16] Australia relies on these straight baselines for 22.9 per cent of the overall baseline.[17] However, these baselines are generally conservative in nature, as evidenced, in particular, by Australia’s decision not to enclose the Great Barrier Reef with straight baselines, and the fact that the claim has not prompted international protests.[18] Noting that while some of Australia’s straight baselines may be open to criticism, Prescott nonetheless concluded that ‘most of the straight baselines are above reproach.’[19]LOSC Article 9 provides that where a river
flows directly into the sea the baseline shall be a straight line across the mouth of the river between points on the low-water line of its banks.
This type of baseline makes up 0.5 per cent of Australia’s baselines as a whole.[20] LOSC Article 10, itself an almost verbatim repetition of Article 7 of the Geneva Convention on the Territorial Sea and Contiguous Zone of 1958, provides, at paragraph 2, that a bay must be ‘a well-marked indentation’, and ‘more than a mere curvature of the coast’. These terms are potentially open to varied interpretation, so a specific, unambiguous test for juridical bay status is also provided, the so-called ‘semi-circle test’. This formula is detailed in paragraph 3 of Article 10 where it is made explicit that the diameter of the semi-circle to be used to test the validity of a particular bay should be equivalent to the width of the mouth (or mouths) of the bay. Australia also employs bay closing lines and river closing lines for 3.5 per cent of its baseline.[21] These baselines are in accordance with the relevant provisions of LOSC, Articles 9 and 10, and have similarly not been subject to protest.
The last paragraph of LOSC Article 10 does, however, provide a disclaimer that ‘the foregoing provisions do not apply to so-called “historic” bays’. Through a Proclamation dated 19 March 1987, Australia claimed historic bay status for Anxious, Encounter, Lacepede and Rivoli Bays.[22] Australia’s claim is primarily founded on Letters Patent dated 19 February 1836 establishing the Province of South Australia, supported by evidence relating to fishing interests and the location of port facilities. The Letters Patent described the boundaries of the newly established colony. To the south this was defined as being the Southern Ocean between 132º and 141º east longitude,
including therein all and every the bays and gulfs thereof together with the island called Kangaroo Island and all and every the islands adjacent to the said last-mentioned island or to that part of the mainland of the said Province.[23]
The closing lines to these claimed historic bays make up 0.6 per cent of Australia’s overall baseline and have a minimal impact on waters under Australian jurisdiction.[24] Nonetheless, these claims have given rise to protest, on the part of the United States. The US takes the view that:
To meet the international standard for establishing a claim to historic waters, a State must demonstrate its open, effective, long-term, and continuous exercise of authority over the body of water, coupled with acquiescence by foreign States to the exercise of that authority. The United States takes the position that an actual showing of acquiescence by foreign States in such a claim is required, as opposed to a mere absence of opposition.[25]Furthermore, the US has argued that with the enhanced claims to maritime jurisdiction provided for under LOSC, notably the extension of the territorial sea breadth limit to 12 nm, ‘no new claim to historic bay or historic waters is needed to meet resource and security interests of the coastal State.’[26]In the US view, Australia’s claims fail to meet this standard, observing in its protest note of 10 April 1991 that prior to Australia issuing its 1987 Proclamation ‘the United States was not aware of any claim by the Government of Australia that these bays were historic’ and noted that no such claim was mentioned in a 1957 UN study on historic bays.[27] The protest note went on to state that the US ‘is unable to agree’ that the bays in question ‘meet the requirements of international law for historic bays and reserves its rights and those of its nationals in that regard.’[28] Australia has rejected the US protest and continues to uphold its historic bay claims.[29] However, in his detailed analysis of Australia’s claims to historic bay status for the four bays in question, Kaye concluded damningly that they ‘appear to be more than a little opportunistic’, and ‘cannot withstand international scrutiny.’[30] However, in light of the limited impact of Australia’s historic bays claim in terms of its maritime jurisdiction and their relatively remote location with respect to shipping routes, no major international repercussions are anticipated.
From its baselines, Australia claims a full suite of maritime zones available under LOSC, including a 12 nm territorial sea,[31] 24 nm contiguous zone[32] and 200 nm breadth EEZ.
Australia’s approach has been characterised as conservative,[33] cautious and orthodox,[34] largely because of the relatively slow pace at which Australia has adopted extended claims to maritime jurisdiction. For example, Australia did not extend its territorial sea claim from 3 nm to 12 nm until 1990 and made its EEZ claim as recently as 1994.[35] This can be contrasted with, for example, New Zealand, which first claimed an EEZ in 1977.[36] Regardless of these apparent delays, as a consequence of its extremely long baseline and broad claims, allied to Australia’s relatively remote position from its maritime neighbours and absence of any such neighbours to the south and southwest, Australia claims enormous zones of maritime jurisdiction which are substantially larger in area than the Australian continental and island landmass.[37]
Additionally, Australia claims areas of continental shelf extending substantially beyond the 200 nm limit.
The claims of Australia and its neighbours to extended zones of maritime jurisdiction, most especially the continental shelf and EEZ, gave rise to overlapping claims and thus, potential international maritime boundaries. Where overlapping claims to territorial seas out to 12 nm exist, Article 15 of the LOSC applies. This article provides for delimitation on the basis of the equidistance method unless the interested parties freely agree to the contrary or there exists an ‘historic title or other special circumstances’ in the area to be delimited. For Australia this scenario only exists with respect to overlapping territorial sea claims with Papua New Guinea in the Torres Strait (see below).
In respect of the extensive resource-oriented national zones of sovereign rights, the continental shelf and EEZ, Articles 74 and 83 of the LOSC respectively merely call in identical general terms for agreement to be reached on the basis of international law in order to achieve ‘an equitable solution’. No preferred method of delimitation is indicated. The LOSC provisions relating to maritime boundary delimitation therefore provide great flexibility to coastal States. All of Australia’s maritime boundaries, except the above-mentioned territorial sea delimitations in the Torres Strait, involve the extended zones of jurisdiction of the continental shelf and/or EEZ.
Australia has been very active and successful in the delimitation of maritime boundaries with neighbouring States.[38] A number of agreements have been concluded with Indonesia concerning continental shelf delimitation (1971[39]
and 1972[40]
) (1972 Sea Bed Treaty) provisional fisheries enforcement (1981),[41] and EEZ (1997).[42]
Additionally, maritime delimitation treaties have been signed with Papua New Guinea especially concerning the Torres Strait (1978) (Torres Strait Treaty),[43]
France for EEZ delimitation in the southern Pacific Ocean between Australia and New Caledonia and in the sub-Antarctic between Australia’s Heard and McDonald Islands and France’s Kerguelan Island (1982)[44]
and with the Solomon Islands over EEZ rights (1988).[45]
As a result, Australia has clarified the extent of its maritime jurisdiction to a considerable extent.[46]
In keeping with overall trends in State practice, the majority of maritime boundary agreements that Australia is party to are equidistance based. A major exception to this rule is the 1971 continental shelf boundary agreement with Indonesia which is heavily influenced by the concept of ‘natural prolongation’.
Australia has also proved to be flexible in its approach to overlapping claims to maritime jurisdiction. This is demonstrated by Australia’s willingness to enter into maritime joint development agreements as a means to overcome deadlock in delimitation negotiations. These agreements include the treaty concerning the Torres Strait reached with Papua New Guinea[47] and the Timor Gap Treaty concluded with Indonesia.[48]
Australia has also shown innovation in its maritime boundary delimitation practice, pioneering the application of separate delimitation lines for seabed and water column. This was a noteworthy aspect of the Torres Strait Treaty.[49] This approach was also applied in the Timor Sea in the 1981 agreement with Indonesia on a provisional fisheries enforcement line and the subsequent Perth Treaty concerning EEZ delimitation of 1997.[50] This has created an unusual situation whereby there are portions of the central and northern Timor Sea where Australia has jurisdiction over the continental shelf by virtue of the 1972 Seabed Treaty and Indonesia has jurisdiction over the overlying water column thanks to the 1981 and 1997 agreements. Questions have, however, been raised as to the advisability and practicality of these arrangements, particularly in relation to offshore installations and structures, marine environmental protection and marine scientific research.[51]More recently, Australia has also concluded a maritime boundary agreement with New Zealand, submitted its claim to extended continental shelf rights beyond 200 nm from the coast to CLCS and, since its independence in 2002, concluded a number of maritime agreements with East Timor. These developments will be considered below.
On 25 July 2004 Australia and New Zealand concluded a maritime boundary treaty defining not only the border between their EEZs but also their continental shelf rights beyond 200 nm from the coast.[52] The two countries announced their intention to define their maritime boundaries ‘no later than 2003’ in August 1999. Eight rounds of bilateral negotiations ensued, culminating in agreement, subject to government approval, in April 2004.[53]
While the 2003 deadline was missed, the Australian Foreign Minister remarked that the agreement took four years to negotiate ‘which in the nature of these things is not a long time.’[54]
With regard to the EEZ, the parties agreed on equidistance as a method of delimitation. They did so with minimal difficulties with the New Zealand Foreign Minister commenting that delimitation of the EEZ was ‘relatively straightforward’, particularly as compared to the ‘more complex’ delimitation of the extended continental shelf between them.[55] Agreement on equidistance as a method of delimitation was, at first glance, somewhat surprising given the fact that some of the islands involved were relatively small and remote. However, two factors helped to persuade Australia and New Zealand to adopt equidistance. Firstly, while the islands in question – Norfolk Island and Macquarie Island on the Australian side and Three Kings Island, Auckland Island and Campbell Island on the New Zealand side – are indeed small, remote and in some cases uninhabited, such features provided the key relevant basepoints on both sides of the potential equidistance-based delimitation line. Both Australia and New Zealand were therefore relying on comparable insular features to generate their claims to EEZs and there was thus balance between the relevant coasts and coastal lengths under consideration. It was also mutually beneficial for the parties to recognise each others’ rights to generate EEZ claims from the islands concerned. Secondly, and compellingly, the prior conduct of the parties was taken into consideration. In fact, the agreement on the application of the median line for EEZ delimitation served to confirm a limit that ‘has been observed de facto by the two countries for more than two decades.’[56]As far as the large areas of extended continental shelf at stake, it appears that New Zealand secured substantially more seabed than would have been the case had a simple median line approach been adopted. This was because in the north New Zealand was able to demonstrate a clearer linkage from its mainland to the Three Kings submarine ridge. It was also recognised that the Australian islands involved are relatively small, isolated and even more remote from the Australian mainland than the analogous New Zealand islands are from New Zealand proper. This is emphasised by the fact that Norfolk Island is, in fact, closer to the New Zealand mainland than Australia’s.
It was therefore acknowledged that ‘consistent with international law and practice’, where an isolated island of one country lies between the opposing mainlands of that country and another country, that island may be given ‘a reduced weight in delimiting maritime boundaries.’[57] As a result it was agreed that these islands, particularly Lord Howe and Norfolk, would be accorded a reduced effect in determining the course of the boundary line applying to extended continental shelf rights, though they were accorded full-effect in respect of EEZ delimitation. Similarly, where a median line was constructed between opposite mainland coasts to serve as the basis for a portion of the delimitation line, New Zealand’s Three King’s Island was accorded a reduced (half) effect.
Figure 1 The Australia-New Zealand Maritime Boundary
Overall, the delimitation falls into two sections – to the north between the Australian islands of Lord Howe and Norfolk and New Zealand’s North Island and three Kings Island and in the south between Australia’s Macquarie Island and New Zealand’s Auckland and Campbell Islands (defined in Article 3). These delimitation lines are best illustrated graphically (see Figure 1), however, unsurprisingly, the treaty also provides a detailed text description of the boundary line.[58]On announcing the agreement, Australian Foreign Minister Alexander Downer and his New Zealand counterpart Phil Goff, declared that the signature of the delimitation treaty was an ‘historic day’ for the two countries because it marked the settlement of both countries’ largest outstanding undelimited ocean areas and thus provides both countries with
certainty of jurisdiction over both the water column and seabed, including over fisheries and petroleum resources, as well as in relation to protecting and preserving the marine environment and undertaking marine scientific research.[59]
They argued that the agreement ‘greatly reduces the potential for future disputes’ between the Australia and New Zealand, for example, by assisting the two countries to jointly manage fish stocks located in the vicinity of the boundary.[60] In this respect, however, it was noted that the available evidence indicated that ‘fishing effort has been miniscule and catch rates poor.’[61]
With regard to seabed resources, Article 4 of the treaty provides that where a petroleum or any other mineral deposit is discovered which straddles the boundary line established in the treaty ‘the two Parties will seek to reach agreement on the manner in which the accumulation or deposit shall be most effectively exploited and on the equitable sharing of the benefits arising from such exploitation.’[62] The hydrocarbons resource prospectivity of the seabed in question was described as slight, although it was noted that the areas concerned are, no doubt due to the poor seabed resource outlook, ‘poorly explored.’[63]Both Foreign Ministers were at pains to point out that ‘the boundaries in the Treaty represent a fair and equitable outcome for both of us’, consistent with LOSC.[64] The treaty was also heralded as ‘a model of bilateral cooperation in the region.’[65] The treaty entered into force on 25 January 2006.
A major impetus behind the successful negotiation of the maritime boundary agreement with New Zealand was Australia’s desire to have a boundary line in place for both EEZ and extended continental shelf rights, prior to making a submission to the CLCS. In this context Australia and New Zealand agreed that ‘both countries will be supportive of each other’s forthcoming submissions’ to the CLCS.[66]Article 76 of LOSC establishes that the continental shelf of a coastal State comprises the seabed and subsoil of submarine areas ‘throughout the natural prolongation of its land territory to the outer edge of the continental margin’ or to a distance of 200 nm from relevant baselines.[67] It provides a series of complex provisions relating to the coastal State establishing the location of the outer edge of the continental margin where that margin extends beyond 200 nm from its baselines[68] as well as imposing some constraints on coastal State claims.[69] Article 76 further provides that the coastal State shall define the outer limits of its continental shelf where it extends beyond 200 nm from its baselines
by straight lines not exceeding 60 nautical miles in length, connection fixed points, defined by coordinates of latitude and longitude.[70]The role of the CLCS is to examine information provided by the coastal State on the limits of its continental shelf beyond 200 nm from its territorial sea baseline. The CLCS will then make ‘recommendations’ to the coastal State on the basis of which the coastal State can establish limits that are ‘final and binding’.[71]
Australia’s submission will serve as the basis for the definition of the limits between Australia’s seabed jurisdiction beyond 200 nm from its territorial sea baseline and the rights of the international community. Preparing Australia’s submission involved significant collaborative efforts from a number of different government departments and agencies in order to address the diplomatic, legal, scientific and technical dimensions involved. Input was required from a core group consisting of the Department of Foreign and Trade (diplomatic), Attorney General’s Department (legal), and Geoscience Australia (scientific/technical issues, notably geophysical surveys, data processing, analysis and interpretation, baseline determination and geodetic computations), with some support from the Royal Australian Navy Hydrographic Service (hydrographic charting), and the Department of the Environment, Water, Heritage and the Arts (environmental issues and baselines in external territories).[72] Preparations for a submission started shortly after Australia ratified LOSC in 1994 with a view to meeting the submission deadline of 16 November 2004. Although this deadline was subsequently amended to 13 May 2009, Australia opted to adhere to the original ten year objective.[73] This target was duly achieved with a day to spare, Australia’s Submission being lodged with the CLCS on 15 November 2004.[74]
Australia adopted a ‘maximum credible’ approach, backed by rigorous and comprehensive supporting materials presented in such a way as to make the CLCS’s task as easy as possible.[75] Australia’s submission provides information on ten distinct areas of continental margin extending beyond 200 nm from relevant baselines.[76]
One of these areas is the continental shelf off the AAT. The Executive Summary of Australia’s submission to the CLCS notes that:
France and Norway have both indicated to Australia that they have no objection to such areas being included in this part of Australia’s submission, without prejudice to the eventual delimitations between Australia and each of the two States.[77]However, Australia also accompanied its submission with a diplomatic note designed to address the sensitivities of other States, most of which do not recognise Australia’s Antarctic sovereignty claims. In this communication Australia recalled ‘the principles and objectives’ shared by the Antarctic Treaty[78]
and the LOSC and the importance of the Antarctic system and the LOSC ‘working in harmony and thereby ensuring the continuing peaceful cooperation, security and stability in the Antarctic area’ and in consequence requesting the CLCS ‘not to take any action for the time being’ regarding information in the submission relating to ‘continental shelf appurtenant to Antarctica.’[79]
The inclusion of the AAT in Australia’s submission nonetheless prompted a number of States to lodge diplomatic notes with the UN Secretary-General.[80]
A number of these documents did, however, note with appreciation Australia’s request that the CLCS not make recommendation in respect of extended continental shelf related to Antarctica.[81]The effort that went into preparing Australia’s submission is reflected in its sheer size. A single full copy of the submission encompasses 868 individual documents running to approximately 19,000 pages. Included are 116 A0-sized maps and hydrographic charts and 331 seismic sections, which together would amount to some 1.5 km if laid end-to-end. In all, Australia’s submission includes approximately 4,200 extended continental shelf outer limit points. In order to enhance the submission’s utility to the CLCS, each of the 10 separate regions where Australia has made an extended shelf submission has its own geographical information system (GIS), helping to integrate the relevant information (see Figure 2).[82]Australia’s submission involves approximately 3.4 million km2 of extended shelf. Australia’s extended shelf information, if accepted, is equivalent to nearly 45 per cent of the area of Australia’s continental and island landmass.[83] The Australian delegation made an initial presentation to the CLCS and a Subcommission of seven members was established during the CLCS’s fifteenth session in April 2005.[84]
The Subcommission examined Australia’s submission in detail during the CLCS’s sixteenth, seventeenth sessions, as well as over intersessional periods, in 2005 and 2006.[85] Multiple meetings were held between the Subcommission and the Australian delegation in order to address queries and clarify issues raised by the Subcommission. By the eighteenth session of the CLCS (21 August-15 September 2006) the Subcommission was able to present its preliminary views on eight of the nine Australian regions under consideration (the exception being the Kerguelen Plateau area which was still under examination).[86]On 28 March 2007, during the CLCS’s nineteenth session, the Subcommission submitted its recommendations to the CLCS.[87] Following the Subcommission’s presentation of its recommendations but before the CLCS considers and adopts those recommendations, the coastal State may take the opportunity to make a presentation on matters related to its submission to the plenary of the CLCS.[88] Australia duly made a ‘comprehensive’ presentation to the CLCS on 28 March 2007.[89] In particular it was emphasised that the recommendations of the CLCS were without prejudice to any treaties already concluded by Australia, including those involving delimitation.[90] Additionally, it was noted that if the CLCS were to conclude that the scientific and technical data included in Australia’s submission did not in fact support Australia’s proposed outer limits, ‘Australia wished to be informed of the detailed reasons for such a conclusion’ and, furthermore, should the CLCS decide
Figure 2 Australia’s EEZ and Extended Continental Shelf Claim
to amend the substance of the recommendations prepared by the Subcommission in a manner that would have an adverse impact on Australia’s interests,
that Australia be afforded the opportunity to make comments on the proposed changes.[91]Following a ‘very thorough and lengthy’ discussion of the recommendations made by the Subcomission, a decision was taken to defer their adoption until the twentieth session. During the twentieth session, however, in light of the partial change in composition of the CLCS following elections, the Australian delegation, on 28 August 2007, repeated the presentation made during the nineteenth session.[92]
Once again, adoption of the recommendations concerning Australia’s extended shelf submission was deferred, somewhat mysteriously ‘in view of ongoing deliberations on certain critical issues.’[93] It is likely, however, that this apparent delay in the finalisation of the CLCS’s recommendations on Australia’s submission merely reflects both the scale and complexity of Australia’s submission and the thorough nature of the CLCS’s examination of it. The concluding chapter in this long saga is therefore expected soon.
Closing the ‘Timor Gap’[94]Australia was remarkably successful in the early 1970s in securing seabed boundary agreements with Indonesia based on the concept of ‘natural prolongation’.[95] The International Court of Justice (ICJ), in its Judgment on the North Sea Continental Shelf cases of 1969, emphasised the importance of this consideration in the delimitation of the continental shelf.[96] Consequently, Australia’s arguments based on this approach proved particularly influential at the time of the negotiations with Indonesia. As a result of the presence of the Timor Trough significantly closer to the Indonesian coast than the Australian coast the boundary line lies well to the Indonesian side of a median or equidistance line between the opposite coasts involved.
These seabed boundaries were, however, negotiated prior to Indonesia’s 1975 occupation and subsequent annexation of East Timor, creating a discontinuity in the line, which became commonly referred to as the ‘Timor Gap’. Following Indonesia’s invasion of East Timor and Canberra’s subsequent acceptance of Indonesian sovereignty over East Timor, boundary negotiations for the Timor Gap were initiated in order to join up the separate sections of their existing maritime boundary agreements to the east and west. However, international law had, in the intervening time, evolved, apparently weakening Australia’s arguments based on natural prolongation.[97]
Additionally, the Indonesians strongly felt that they had been short-changed in the earlier boundary agreements.[98] As a result no boundary agreement could be reached regarding the Timor Gap which was, instead, closed with a joint development zone – the Timor Gap Zone of Cooperation.[99]Following the overwhelming vote in favour of independence for East Timor in the referendum held in 1999, conflict ensued, prompting international intervention under UN auspices.[100]
Prior to full East Timorese independence, an interim UN administration was established, the United Nations Transitional Administration in East Timor (UNTAET).[101]
UNTAET entered into a number of agreements on behalf of East Timor in order to safeguard ongoing resource development activities in the Timor Sea, including an Exchange of Notes with Australia which assumed all the rights and responsibilities previously claimed by Indonesia in respect of the Timor Gap Zone of Cooperation. However, these arrangements were without prejudice to the future East Timorese government’s position and explicitly did not recognise the validity of the Australia-Indonesia treaty creating the Timor Gap joint zone.[102]Even prior to independence on 20 May 2002, therefore, the East Timorese view was that East Timor was not bound by the terms of the Timor Gap treaty and that the maritime boundary between the parties’ opposite coasts should be the median line. In contrast, Australia maintained that the position of the boundary should broadly accord with the alignment of the Timor Trough, reflecting what Canberra views as a fundamental division between the two sides’ continental shelves. As noted, the Timor Trough is significantly closer to East Timor than Australia, such a solution would be very much to Canberra’s advantage.
In order to ensure continuity in oil and gas exploration activities, Australia and East Timor agreed to the Timor Sea Treaty which came into effect on the day East Timor became independent.[103]
This treaty established a joint petroleum development area (JPDA) coinciding with the central part of the old Timor Gap treaty area (Zone A). There was, however, a significant readjustment in the revenue-sharing arrangements in this area. Whereas under the terms of the Timor Gap treaty sharing in this zone was on an equal basis between the parties (Australia and Indonesia), under the terms of the Timor Sea Treaty, it was agreed that revenues would be shared 90:10 in East Timor’s favour.
Australia and East Timor also reached agreement on the unitisation of seabed oil and gas resources straddling the boundary of the JPDA, notably the Greater Sunrise complex of fields.[104]
This agreement is often referred to as the Greater Sunrise International Unitisation Agreement, or Sunrise IUA. According to these agreements, 20.1 per cent of Greater Sunrise lies within the JPDA with the remaining 79.9 per cent falling on what Australia regards as its side of the line. In consequence, according to these agreements, East Timor was set to benefit from only 18.1 per cent of the proceeds from Greater Sunrise (90 per cent share of the 20.1 per cent of the field falling within the JPDA). This was a source of significant frustration to East Timor and, as a result, the East Timorese government delayed ratification of the unitisation agreements, eventually leading the consortium holding rights to develop Greater Sunrise, led by Australia’s Woodside Energy Ltd, to suspend work on the US$5 billion (A$6.6 billion) project.[105]Subsequent delimitation negotiations proved complex and contentious. Particularly controversial issues proved to be, perhaps inevitably, the precise division of seabed resources and the final destination for the pipeline bringing those resources onshore. On the first issue, Australia proposed financial ‘compensation’ in exchange for East Timor agreeing to shelve the delimitation dispute. Disputes emerged over not only the level of compensation on offer but also recognition of East Timorese claims to sovereign rights in the Timor Sea, particularly to areas adjacent to the JPDA – something Australia consistently refused to acknowledge. On the second issue, the destination of the pipeline necessarily dictates the location for a liquefied natural gas processing plant which represents a significant prize in itself.
Ultimately, the obstacles to agreement were overcome and on 12 January 2006 Australia and East Timor signed the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS).[106]
The treaty does not define a maritime boundary between the two States. Instead, it provides for a further interim resource sharing agreement. It does not specify the destination for the anticipated gas pipeline, this decision being left to the Woodside-led consortium holding the licence to develop the Greater Sunrise field. The agreement does, however, provide for the equal sharing of revenues deriving from the upstream exploitation of petroleum resources within the ‘Unit Area’ which includes the Greater Sunrise complex of fields.[107] As a result, rather than an 18.1 per cent share in Greater Sunrise as would have been the case under the earlier accords, East Timor stands to gain a full 50 per cent share in the revenues deriving from the development of those fields.
The CMATS is without prejudice to either side’s claims to maritime delimitation[108] and includes stringent requirements for a moratorium on claims while the treaty is in force.[109] The parties agreed to defer their claims to maritime jurisdiction and boundaries in the Timor Sea for up to 50 years.[110] The treaty will, however, lapse if either a development plan for Greater Sunrise has not been approved within six years or production has not started within 10 years from the agreement entering into force.[111]CMATS also provides for East Timorese jurisdiction over the water column above the JPDA[112] and serves to establish a bilateral joint Maritime Commission to ‘constitute a focal point for bilateral consultations with regard to maritime matters of interest to the Parties.’[113]Some pro-East Timorese advocates and lobby groups have suggested that the maritime boundary according to international law would deliver a far more substantial share of the seabed resources of the Timor Sea to East Timor.[114] This view is based on East Timor’s contention that it would be inequitable to apply equidistance to its lateral maritime boundary delimitations, thus enabling East Timor to widen its claims on the Timor Sea to encompass areas to the east and west of the Gap (see Figure 3). The equal sharing of Greater Sunrise therefore represents far less than some had claimed was East Timor’s rightful entitlement and was, as a result, subject to criticism, with suggestions that the treaty should be amended or even renegotiated.[115]Such criticisms do not seem to take into account the fact that international law does not deliver a particular maritime boundary and that Australia never countenanced East Timorese lateral claims encompassing areas adjacent to the JPDA.[116]
They also do not take into account the realities of the asymmetric relationship between the parties. Crucially, East Timor had no recourse to third party judicial settlement procedures as a result of Australia’s withdrawal from the jurisdiction of the ICJ and LOSC dispute settlement provisions (including ITLOS) in respect of the delimitation of maritime boundaries, two months prior to East Timor gaining independence.[117]
East Timor was therefore locked into a negotiation process in order to address the dispute and an asymmetrical one at that – not only was there a significant, and obvious, disparity between the negotiating partners in terms of development and capacity but East Timor’s need for access to the revenues deriving from the resources in question far outstripped Australia’s.
Ultimately, CMATS was, unsurprisingly, a compromise but one that offers major potential benefits. Greater Sunrise represents a significant resource prize in the Timor Sea with East Timor set to gain several billion dollars of additional revenue as a result of the deal,[118]
as and when it
Figure 3 Maritime Arrangements in the Timor Sea
is actually developed.[119] This substantial additional income stream offers the prospect of the availability of funds for rebuilding and development in the long term and therefore arguably offers a genuine opportunity for East Timor to break aid-dependence and provide for sustained and sustainable development. This can be viewed as an especially relevant factor in the context of East Timor’s troubled past, including recent unrest. The injection of significant oil-related revenues into the East Timorese economy, initially from reserves within the JPDA and, in due course, from
Greater Sunrise once developed, is, however, likely to represent a significant challenge in itsel[120]
The CMATS, together with the related Sunrise IUA, entered into force on 23 February 2007 after a formal exchange of diplomatic notes in Dili.[121]
However, a key, and at the time of writing unresolved, issue remains that of the destination of the pipeline bringing the resources of Greater Sunrise on shore and thus the location of the potentially lucrative downstream processing facilities.
Australia has undoubtedly made considerable progress in the definition of the maritime space under its jurisdiction. The conclusion of the delimitation treaty with New Zealand allied to a resolution, for the foreseeable future at least, of the boundary and resource dispute with East Timor largely completes Australia’s system of maritime boundaries. What then remains to be done?
The major exception in this context remains the limits of the AAT. The AAT is comprised of two parts, the larger part between 45ºE and 136ºE and the smaller part between 142ºE and 160ºE. Norway’s Dronning Maud Land lies to the west of the larger part of the AAT, France’s Adélie Land lies between the discrete segments of the AAT and New Zealand’s Ross Dependency lies to the east of the smaller part of the AAT. In consequence Australia has four potential maritime boundaries off Antarctica: between Norway’s claim and the larger part of the AAT, between this part of the AAT and France’s Adélie Land, between Adélie Land and the smaller part of the AAT and, finally, between the lesser part of the AAT and New Zealand’s Ross Dependency. Quite apart from the substantial difficulties associated with baseline issues on Antarctica’s predominantly ice-covered coasts,[122] the terms of the Antarctic Treaty, allied to the general reluctance claimant States have shown towards ‘rocking the Antarctic boat’ mean that maritime delimitation offshore Antarctica remains off the political agenda.[123]Additionally, as noted in Australia’s submission to the CLCS, there remain two potential outstanding delimitations with France involving potential extended continental shelf rights. The first of these would involve an extension of the delimitation line between Australia’s Heard and McDonald Islands and France’s Kerguelan Island in the sub-Antarctic.[124] The second case involves the delimitation between Australia and France on behalf of New Caledonia where the boundary line may need to be extended further to the east to take into account possible French extended shelf claims to part of the Three Kings Ridge.[125]In both cases, Australia’s submission to the CLCS makes it clear that France has no objection to the CLCS addressing Australia’s Submission and making recommendations in respect of the relevant areas ‘without prejudice to the eventual delimitation between the two States.’ This was reinforced by a French diplomatic note subsequent to Australia’s submission addressed to the Office of Legal Affairs of the Secretariat of the United Nations.[126]
Indeed, the 1982 Australia-France delimitation treaty itself anticipates that such amendments may be required. Article 3 of this agreement states that the terminal point of the line defined in the Pacific Ocean between Australia and New Caledonia (R22) and the points at either end of the boundary defined in the sub-Antarctic between Australia’s Heard and McDonald Islands and France’s Kerguelan Island (S1 and S8),
shall not be taken as necessarily representing the position of either of the two Governments as to the outer edge of the continental shelf.
Furthermore,
[i]f it becomes necessary to extend a line of delimitation … for the purpose of further delimiting the continental shelf adjacent to Australian and French territory, that line shall be extended by agreement
between the two States. [127]It seems likely that delimitation of these extended continental shelf boundaries will only occur once France has itself made a submission to the CLCS.[128] Once the CLCS has handed down its recommendations, Australia is likely to be in a position to define ‘final and binding’ limits to its extended continental shelf for seven out of the ten discrete areas submitted for the CLCS’s consideration – Antarctica (not to be considered by the CLCS at Australia’s request), and Keurguelen Plateau and the Three Kings Ridge (on account of potential outstanding delimitations with France) being left to one side.
Overall, Australia’s maritime boundary delimitation experience underlines that, whilst Australia has frequently applied equidistance as a basis for maritime boundary delimitation, there has also been considerable evidence of pragmatic bilateralism. This has been demonstrated by Australia’s laudable willingness to be flexible and apply innovative solutions such as separating the water column and seabed boundaries and adopting interim provisional and cooperative arrangements of a practical nature such as maritime joint development zones.
The impact of Australia’s undeniable success in maritime boundary delimitation with its maritime neighbours on the limits of its overall maritime jurisdiction should not, however, be over-estimated because it only represents a portion of the limits of Australian jurisdiction. Certainly sections of the limits of Australia’s maritime jurisdiction are composed of international maritime boundaries agreed with neighbouring States, as discussed above. These maritime boundaries are fixed by treaties and formal legal agreements and defined by lists of geographic coordinates referred to a particular geodetic datum. Once the formal legally binding agreement is in place, the boundary does not shift, unless the Parties mutually decide to the contrary. Australia’s maritime boundaries with neighbouring States account for 28 per cent of Australia’s total EEZ limit (34 per cent if EEZ off Antarctica not considered).[129] The majority of its limits are composed of 200 nm EEZ limits defined from Australia’s baselines.
The majority of Australia’s EEZ limit is therefore dependent on normal baselines. As such, these limits are subject to change over time as and when the normal baseline naturally shifts or ‘ambulates’.[130] This imposes a significant challenge on Australia in terms of the management and maintenance of its baselines and limits. Indeed, this situation has given rise to an intriguing tension between the desire to map the low-water line as accurately as possible and the utility, from a practical enforcement authority perspective, for a degree of permanence in maritime limits and boundaries.[131]
[1]QEII Research Fellow, Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, Wollongong, NSW 2522, Australia. E-mail: clives@uow.edu.au. Dr Schofield is the recipient of an Australian Research Council QEII Fellowship (DP0666273).
[2]It is acknowledged that technically the correct abbreviation for a nautical mile is ‘M’ and that ‘nm’ should only be used for nanometres. However, ‘nm’ is widely used by many authorities (for example, the UN Office of Ocean Affairs and the Law of the Sea) and appears to cause less confusion than ‘M’, which is often assumed to be an abbreviation for metres.
[3]While the agreements concluded between Australia and East Timor do not define a maritime boundary delimitation line, they do appear to provide the basis for the dispute over the resources in the Timor Sea to be effectively managed for the foreseeable future.
[4]Four conventions emerged from the first United Nations Conference on the Law of the Sea (UNCLOS I), held in Geneva in 1958: Convention on the Territorial Sea and Contiguous Zone; Convention on the Continental Shelf; Convention on the High Seas; and Convention on Fishing and Conservation of the Living Resources of the High Seas.
[5]Total estimated coastline length: 59,736 km (35,877 km mainland, 23,859 km islands). Source: Geoscience Australia www.ga.gov.au/education/facts/dimensions/ coastlin.htm.
[6]While LOSC defines internal waters as being those waters landward of baselines, Australia uses the term in domestic law to describe waters internal to its constituent States. These are waters inside the ‘territorial limits’ of the States. In the Australian context, waters that lie within three nm of the territorial limits form ‘coastal waters’. (Hirst, B. Project Leader, Marine Spatial Information and Boundaries Advice, Personal communication, 1 February 2007).
[7]LOSC, Article 5. This represents an almost verbatim repetition of Article 3 of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.
[8]Figures exclude all external territories (i.e. Antarctica, Ashmore and Cartier Islands, Christmas Island, Cocos (Keeling) Islands, Heard and McDonald Islands, Norfolk Island, Coral Sea Islands). Calculation conducted on dataset based on World Geodetic System 1984. (Hirst, supra note 5). Details of Australia’s maritime boundaries are available through the Australian Marine Spatial Information System (AMSIS). Source: Geoscience Australia www.ga.gov.au/amsis.
[9]This will serve to advance the starting point for maritime claims offshore, as well as increasing the area designated as ‘land’ or internal waters landward of the baseline The impact of selecting a lower vertical datum on the extent of maritime claims tends to be limited, however, unless there is a significant tidal range or the coastline in question shelves particularly gently.
[10]For example, while an island may, in accordance with LOSC Article 121(2), generate a full suite of maritime zones in an identical fashion to mainland coasts, a low-tide elevation, as provided by Article 13, may be used as a territorial sea basepoint, but only if it falls wholly or partially within the breadth of the territorial sea measured from the normal baseline of a State’s mainland or island coasts. A low-tide elevation’s value for maritime jurisdictional claims is therefore geographically restricted to coastal locations. See, Carleton, C. and Schofield, C.H. (2001), Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines, Maritime Zones and Limits, Maritime Briefing, 3, 3, Durham: International Boundaries Research Unit: 38.
[11]ibid., at 21-25.
[12]This is defined as: ‘The lowest tide level which can be predicted to occur under average meteorological conditions and under any combination of astronomical conditions.’ Concerning Australia’s 1983 declaration see Geoscience Australia’s website at www.ga.gov.au/nmd/mapping/marbound/. See also, International Hydrographic Organization (with the International Oceanographic Commission and the International Association of Geodesy) (2006), A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea, 1982, Special Publication no. 51, 4th edition, Monaco: International Hydrographic Bureau. [Source: International Hydrographic Bureau www.iho.shom.fr/.
[13]LOSC, Article 7(1).
[14]Numerous straight baseline claims have been subject to international protests on the grounds that they incorporate excessively long baseline segments, use basepoints located substantially offshore or involve a ‘fringe’ of islands that are similarly far offshore and/or widely dispersed. Consequently, it has been argued that such straight baselines are not, as required under the terms of Article 7, in the ‘immediate vicinity’ of the coast, and the waters so enclosed are too expansive and distant from the mainland to be genuinely considered as capable of qualifying as internal waters. The United States routinely protests against any practice that it deems to be excessive or contrary to the provisions of LOSC through its Freedom of Navigation Program. For an excellent overview of such excessive claims, from a US perspective, see, Roach, J.A. and Smith, R.W. (1996), United States Responses to Excessive Maritime Claims, The Hague: Martinus Nijhoff, at 57-161.
[15]Effective 31 October 1974. See, Commonwealth of Australia, Gazette, Numbers 89A and 89B, Canberra.
[16]Effective, 9 February 1983. See, Commonwealth of Australia, Gazette, Number S29, Canberra. It is notable that while the 1974 Proclamation made reference to the mean low-water line, the 1983 Proclamation instead refers to lowest astronomical tide. For a detailed analysis of these straight baselines see, Prescott, J.R.V. (1985), Australia’s Maritime Boundaries, Canberra: Australian National University.
[17]Hirst, supra note 5. Given the generally conservative nature of Australia’s straight baseline claims, it has been suggested that ‘there may be scope for further proclamations dealing with territorial sea baselines’ (Kaye, S.B. (2001) Australia’s Maritime Boundaries, (2nd ed), Wollongong Papers on Maritime Policy, 12, Wollongong: Centre for Maritime Policy, at 5. However, it is worth noting that the definition of Australia’s straight baseline was achieved in consultation with Australia’s constituent states, making their subsequent alteration a potentially onerous task.
[18]Prescott stated that ‘in the region of the Great Barrier Reef Australia has drawn lines well landwards of those which could have been justified’ (see, Prescott, supra note 15, at 68). As the same author delicately put it: ‘It is generally believed that this apparent modesty was based on political pragmatism. The federal government did not wish to transfer the entire reef to Queensland because this was perceived to be electorally unpopular among significant sections of the Australian community.’ See, Prescott, J.R.V. (1985), The Maritime Boundaries of the World, London: Methuen, at 183.
[19]Prescott, supra note 15, at 68.
[20]Hirst, supra note 5.
[21]ibid.
[22]Effective, 31 March 1987. See, Commonwealth of Australia, Gazette, Number S57, Canberra.
[23]Quoted in McLelland, M.H. (1971) ‘Colonial and State boundaries in Australia’, Australian Law Journal, 45: 671-679, at 677. See also Edeson, W R. (1968-1969), ‘Australian Bays’, Australian Yearbook of International Law, 5: 5-54, at 17.
[24]Australia’s historic bay claims were made on the recommendation of a joint Commonwealth/South Australian committee which had been tasked to examine historic use and governmental practice in bays along South Australia’s coast. See, Kaye, S.B. (1996), ‘Australia’s Ocean Boundaries: An Overview’: 97-112 in Kriwoken, L.K., Haward, M., VanderZwaag, D. and Davis, B. (eds), Oceans Law and Policy in the Post-UNCED Era: Australian and Canadian Perspectives, London: Kluwer Law International, at 99.
[25]Roach, J.A. and Smith, R.W. (1996) United States Responses to Excessive Maritime Claims, The Hague: Martinus Nijhoff, at 31.
[26]ibid., at 37.
[27]ibid., at 36.
[28]ibid., at 36-37.
[29]See, Burmester, H. (1995) ‘Australia and the Law of the Sea’: 51-64 in Crawford, J. and Rothwell, D.R. (eds), The Law of the Sea in the Asian Pacific Region, Dordrecht: Martinus Nijhoff, at 55-56.
[30]Kaye, S.B. (1995) ‘The South Australian Historic Bays: An Assessment’, Adelaide Law Review, 17: 269-282, at 282.
[31]Proclamation made under the Seas and Submerged Lands Act 1973 (Cth). See, Commonwealth of Australia, Gazette, Number S297, Canberra, 13 November 1990 (effective 20 November 1990). Australia’s territorial sea is restricted to 3 nm around certain islands in the Torres Strait, in accordance with the Torres Strait Treaty with Papua New Guinea (see note 42 below). It is also worth noting that Australia claims a 3 nm zone of ‘Coastal Waters’, which is under the jurisdiction of its constituent States and Territories under the Offshore Constitutional Settlement of 1979 (see, for example, Burmester, supra note 28, at 53-54; and, Kaye, supra note 23, at 99).
[32]Commonwealth of Australia, Gazette, Number S289, Canberra, 29 July 1994 (effective 1 August 1994). See, Burmester, supra note 28, at 56.
[33]Kaye, supra note 23, 99-100.
[34]Burmester, supra note 28, at 52.
[35]With regard to the EEZ, claimed as of 1994, it is worth noting that in 1979 Australia claimed a 200 nm fisheries zone (AFZ) which continues to exist. However, the outer limits of Australia’s AFZ and EEZ are identical (except, unlike the EEZ, the AFZ does not exist off the AAT). See, Burmester, supra note 28, at 58-59; Kaye, supra note 23, at 99-100; and Davis, R. (2007) ‘Enforcing Australian Law in Antarctica: The HSI Litigation’ Melbourne Journal of International Law, 8: 142-158.
[36]See, Territorial Sea and Exclusive Economic Act 1977, Act No. 28 of 26 September 1977 as amended by Act No. 146 of 1980.
[37]The total land area of Australia is 7,692,024 km2 whilst its EEZ amounts to 8,148,250 km2. However, this figure excludes any waters off the Australian Antarctic Territory. Were these to be included, the area of Australia’s EEZ would be around twice its continental landmass www.ga.gov.au/education/facts/dimensions/ oceans.jsp.
[38]Generally see Prescott, supra note 15, Canberra; and Kaye, supra note 16.
[39]Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries, 18 May 1971 (entry into force: 8 November 1973. Treaty text available at [1973] Australian Treaty Series (ATS) 31 and www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS-IDN1971SB.pdf. See also J.I. Charney and L.M. Alexander, eds (1993), International Maritime Boundaries, Vol. II, The Hague: Martinus Nijhoff, at 1195-1205.
[40]Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas Supplementary to the Agreement of 18 May 1971, 9 October 1972 (entry into force, 8 November 1973). Treaty text available at [1973] ATS 32 and www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS-IDN1972TA.pdf.
[41]Memorandum of Understanding between the Government of the Republic of Indonesia and the Government of Australia Concerning the Implementation of a Provisional Fisheries Surveillance and Enforcement Arrangement, 29 October 1981. See, Charney and Alexander, supra note 38, at 1229-1243.
[42]Treaty between the Government of Australia and the Government of Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, 14 March 1997. Sometimes referred to as the Perth Treaty. See Charney and Alexander (2002), International Maritime Boundaries Vol. IV, The Hague: Martinus Nijhoff, at 2697-2727. For treaty text, see www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS-IDN1997EEZ.pdf. At the time of writing this treaty had yet to be ratified and entered into force. It will require amendment as it was drafted at a time when Indonesia administered East Timor. It therefore makes reference to now defunct arrangements such as the Timor Gap Zone of Cooperation.
[43]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 (entry into force, 15 February 1985). Treaty text available at [1985] ATS 4 and www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS-PNG1978TS.PDF.
[44]Agreement on Marine Delimitation between the Government of Australia and the Government of the French Republic, 4 January 1982 (entry into force, 10 January 1983). Treaty text available at [1983] ATS 3 and http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS-FRA1982MD.pdf.
[45]Agreement between the Government of the Solomon Islands and the Government of Australia establishing certain sea and seabed boundaries, 13 September 1988 (entry into force, 14 April 1989). Treaty text available at [1989] ATS 12 www.un.org/Depts/los/ LEGISLATIONANDTREATIES/PDFFILES/TREATIES/aus-sol1988.tif.
[46]The maritime boundaries of the Australian Antarctic Territory have, however, yet to be delimited. Additionally the outer limits of Australia’s extended continental shelf claim are, at the time of writing, under consideration by the CLCS.
[47]Supra note 42.
[48]reaty 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 (entry into force, 9 February 1991, no longer in force). Treaty text available at [1991] ATS 9 and www.un.org/ Depts/los/legislationandtreaties.htm. See also, Charney and Alexander, supra note 38, at 1245-1328. The Zone of Cooperation so established covers an area of 60,500 km² and closes the so-called Timor Gap. Three sub-zones were created – a large central, ‘sovereignty neutral’, Zone A where revenues were to be shared on a 50:50 basis, and two smaller ‘national’ zones, Zone B to the south where sharing was on the ratio 90:10 in favour of Australia and a narrow Zone C, where the ratio was 90:10 in favour of Indonesia. When it was finalised in 1991 it was widely regarded as the most sophisticated and comprehensive maritime joint development zone in the world.
[49]The Torres Strait Treaty, supra note 42, established a protected zone aimed at guarding traditional fishing activities and the free movement of traditional inhabitants, and regulating the exploitation of commercial fisheries (revenues being split 75:25 according to whose jurisdictional sector of the zone the fish are caught in, according to Article 23 of the Treaty). Within the protected zone a moratorium on oil and gas exploration was imposed and separate continental shelf and fisheries boundaries were delimited. The Treaty set up a detailed regulatory regime, including a joint advisory council. Incidentally, the Torres Strait is the only area where Australia has territorial sea boundaries with a neighbouring State. See, for example, Kaye, supra note 16, at 102-139.
[50]The Australia-Indonesia continental shelf delimitation line (supra note 39) is located substantially on the Indonesian side of the median line in the Timor Sea on the basis of natural prolongation arguments. Subsequent negotiations relating to the water column boundary led to the definition of largely equidistance based boundaries – the Provisional Fisheries Surveillance and Enforcement Line (supra note 40) and EEZ boundary line defined through the Perth Treaty (supra note 41). It is notable, however, that these delimitations extend further to the south and west than the continental shelf boundaries agreed earlier and that a boundary was agreed between Australia’s Christmas Island and the Indonesian island of Java.
[51]For a detailed analysis of the issues potentially arising from this overlapping of jurisdictions see Herriman, M. and Tsamenyi., M. (1998), ‘The 1997 Australia-Indonesia maritime boundary treaty: a secure legal regime for offshore resource development?’, Ocean Development and International Law, 29: 361-396.
[52]Treaty between the Government of Australia and the Government of New Zealand establishing certain Exclusive Economic Zone and Continental Shelf Boundaries, 25 July 2004 (entry into force, 25 January 2006). Treaty text available at [2006] ATS 4 [hereafter, Australia-New Zealand Treaty].
[53]Department of Foreign Affairs and Trade, ‘Treaty between the Government of Australia and the Government of New Zealand establishing certain Exclusive Economic Zone and Continental Shelf Boundaries: Background Information’, Alexander Downer, Minister of Foreign Affairs, Australia, media release, 25 July 2004. Source: Minister of Foreign Affairs www.foreignminister.gov.au/releases/2004
[hereafter, Australia-New Zealand Treaty: Background].
[54]Department of Foreign Affairs and Trade, ‘Joint Press Conference with N.Z. Foreign Minister Phil Goff, following the six-monthly Australia New Zealand talks and the signing of the Australia New Zealand Maritime Delimitation Treaty’, Transcript, 25 July 2004. Source Minister of Foreign Affairs www.foreignminister.gov. au/transcripts/2004/040725_nz.html
[hereafter, Australia-New Zealand Treaty: Joint Press Conference].
[55]ibid.
[56]Australia-New Zealand Treaty Background Information, supra note 52.
[57]ibid.
[58]Article 2 of the Australia-New Zealand Treaty, supra note 51, details the ‘Exclusive Economic Zone and Continental Shelf between Australia in respect of Lord Howe Island and Norfolk Island and New Zealand’, while Article 3 of the same Treaty defines the ‘Exclusive Economic Zone and Continental Shelf between Australia in respect of Macquarie Island and New Zealand in respect of Auckland and Campbell Islands.’
[59]Department of Foreign Affairs and Trade, ‘Signature of the Treaty between the Government of Australia and the Government of New Zealand establishing certain Exclusive Economic Zone and Continental Shelf Boundaries’, Joint Statement, Alexander Downer, Minister of Foreign Affairs (Australia) and Phil Goff, Minister of Foreign Affairs and Trade (New Zealand), 25 July 2004. Source: Minister of Foreign Affairs www.foreignminister.gov.au/releases/2004/fa112a_04.html
[hereafter, Australia-New Zealand Treaty: Joint Statement].
[60]ibid.
[61]reaty between the Government of Australia and The Government of New Zealand establishing certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries: National Interests Analysis (Department of Foreign Affairs and Trade, Australia). Available at www.austlii.edu.au/au/other/dfat/nia/2004/ 8.html.
[62]Australia-New Zealand Treaty, Article 4, supra note 51.
[63]Australia-New Zealand Treaty Background Information, supra note 52.
[64]Australia-New Zealand Treaty Joint Statement, supra note 58.
[65]National Interests Analysis, supra note 60.
[66]Australia-New Zealand Treaty Joint Statement, supra note 58.
[67]LOSC, Article 76(1).
[68]The outer edge of the continental margin may be established either through reference to the thickness of sedimentary rocks or a line no more than 60 nm from the foot of continental slope. LOSC, Article 76(4).
[69]Coastal State claims ‘either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath.’ LOSC, Article 76(5).
[70]LOSC, Article 76(7). Generally see, P.J. Cook and C.M. Carleton (eds) (2000), Continental Shelf Limits, Oxford: Oxford University Press.
[71]LOSC, Article 76(8). For the CLCS’s Rules of Procedure, Scientific and Technical Guidelines, Modus Operandi and related documents see, www.un.org/Depts/los/clcs_new/clcs_home.htm. More generally see McDorman, T.L. (2002), ‘The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World’, International Journal of Marine and Coastal Law 17: 301-324. See also Macnab, R. (2004), ‘The Case for Transparency in the Delimitation of the Outer Continental Shelf in Accordance with UNCLOS Article 76’, Ocean Development and International Law, 35: 1-17.
[72]Symonds, P.A. (2006) ‘Practical Aspects of the Continental Shelf’, unpublished presentation (Wollongong: Centre for Maritime Policy, July). Professor Symonds is Senior Adviser - Law of the Sea at Geoscience Australia. He also is a member of the CLCS having been elected for the period 2002-2007 and re-elected for the term 2007-2012.
[73]Factors encouraging Australia to meet the original deadline included: concerns over whether data already collected would remain valid for a further five years; difficulties of keeping a dedicated team together if there were to be a delay; and the fact that the amended deadline could not be binding on state newly ratifying or acceding to the LOSC. See, Serdy, A. (2005) ‘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, 36: 201-217, at 204.
[74]‘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’, (Canberra: Commonwealth of Australia, AUS-DOC-ES, 2004). Source: UN www.un.org/ Depts/los/clcs_new/submissions_files/aus04/Documents/aus_doc_es_web_delivery.pdf
[hereafter Australian Executive Summary].
[75]Symonds, supra note 71. This was particularly evident through the provision of the submission in geographical information system (GIS) format.
[76]The ten regions are, in alphabetical order: Argo, Australian Antarctic Territory, Great Australian Bight, Kerguelen Plateau, Lord Howe Rise, Macquarie Ridge, Naturaliste Plateau, South Tasman Rise, Three Kings Ridge, and Wallaby and Exmouth Plateau. See, Australian Executive Summary, supra note 73 and Serdy, supra note 72 at 205 and 208-213.
[77]Australian Executive Summary, supra note 73, at 15.
[78]Treaty text available at [1961] ATS 12 and from, for example, the Australian Antarctic Division at www.aad.gov.au/default.asp?casid=1212.
[79]‘Note from the Permanent Mission of Australia to the Secretary-General of the United Nations accompanying the lodgement of Australia’s submission’, November 2004. Source: UN www.un.org/Depts/los/clcs_new/ submissions_files/aus04/Documents/aus_doc_es_attachment.pdf.
[80]Namely, in chronological order, the United States (3 December 2004), Russia (9 December 2004), Japan (19 January 2005), East Timor (11 February 2005), France (28 March 2005), The Netherlands (31 March 2005), Germany (5 April 2005) and India (5 July 2005). Source: UN www.un.org/Depts/los/clcs_new/ submissions_files/submission_aus.htm. While most of these notes served to reaffirm the non-recognition by these states of any state’s territorial claims in Antarctica, the East Timorese Note was different. It was largely concerned with Australia’s presentation of the position in the Timor Sea with regard to maritime jurisdiction in its submission and reserved East Timor’s position in the context of that country’s maritime boundary dispute with Australia.
[81]The communications of the United States, Russia, The Netherlands, Germany and India fall into this category.
[82]Symonds, supra note 71.
[83]ibid.
[84]The Subcommission charged with examining Australia’s submission consists of Harald Brekke (Norway, Chairman), Alexandre Tagore Medeiros de Albuqureque (Brazil, Vice-Chairman), Kensaku Tamaki (Japan, Vice-Chairman), Indurlall Fagoonee (Mauritius), Fernando Manuel Maia Pimentel (Portugal), Naresh Kumar Thakur (India) and Yao Ubuènalè Woeledji (Togo). See Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, Fifteenth session, 4-22 April 2005, CLCS/44, available at http://www.un.org/Depts/los/ clcs_new/Commission_documents.htm#Statements per cent20by per cent20the per cent20Chairman per cent20of per cent20the per cent20Commission.
[85]See Statement of the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission for the Sixteenth and Seventeenth sessions (CLCS/48 and CLCS/50), available at ibid.
[86]Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, Eighteenth session, 21 August-15 September 2006, CLCS/52, available at ibid.
[87]Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, Nineteenth session, 5 March-13 April 2007, CLCS/54, available at ibid.
[88]ibid.
[89]ibid. Following an introductory statement made by the Permanent Representative of Australia to the United Nations, Robert Hill, the head of the Australian Delegation, Bill Campbell, presented on non-scientific aspects of Australia’s submission and Mark Alcock presented on scientific issues.
[90]ibid. It is, however, understood that this matter can be viewed as ‘fundamentally procedural’ and was intended to reassure members of the CLCS concerned over the requirement that the recommendations of the CLCS not be prejudicial to maritime boundary delimitation between coastal States. (M. Alcock, Project Leader, Law of the Sea and Boundary Advice Project (LOSAMBA), personal communication, 11 October 2007).
[91]ibid.
[92]Elections on membership of the CLCS took place on 14-15 June 2007. Two of the members of the Subcommission dealing with Australia’s submission, Naresh Kumar Thakur and Yao Ubuènalè Woeledji were not re-elected. At the CLCS’s Twentieth session it was decided that newly elected commissioners Sivaramakrishnan Rajan (India) and Michael Anselme Marc Rosette (Seychelles) would fill these vacant positions. See, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, Twentieth session, 27 August-14 September 2007, CLCS/56, available at http://www.un.org/Depts/los/clcs_new/commission_documents.htm#Statements%20by%20the%20Chairman%20of%20the%20Commission.
[93]ibid.
[94] This section is largely based on a previously published, and more detailed, article by the same author. See, Schofield, C.H. (2007) ‘Minding the Gap: The Australia – East Timor Treaty on Certain Maritime Arrangements in the Timor Sea’, International Journal of Marine and Coastal Law, 22: 189-234.
[95]LOSC Article 76(1) states that the continental shelf of a coastal State comprises ‘the sea-bed 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 … where the outer edge of the continental margin does not extend up to that distance.’ On the basis of ‘natural prolongation’ it has been contended that delimitation of the continental shelf should be determined, or at least influenced, by the geophysical characteristics of the sea floor, notably its geology (composition and structure) and geomorphology (shape, form and configuration). See, for example, Highet, K. (1993) ‘The Use of Geophysical Factors in the Delimitation of Maritime Boundaries’, pp. 163-202 in Charney, J.I. and Alexander, L.M. (eds) (1993), International Maritime Boundaries, Vol. I, The Hague: Martinus Nijhoff.
[96]In its 1969 Judgment the ICJ stated that: ‘delimitation is to be effected … in such a way as to leave as much as possible to each party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of another state’ (ICJ, North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (1967-1969), Judgment of 20 February 1969, (The Hague: ICJ Reports), at para. 101.
[97]Notably the ICJ’s 1985 Judgment in the Libya/Malta case that geophysical factors (i.e. the shape and composition of the seabed) should have no impact on the course of boundary delimitation within 200 nm of the coast. See, ICJ, Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment of 3 June 1985, (The Hague: ICJ Reports), at para.39. Source: ICJ www.icj-cij.org/icjwww/icases/ilm/ ilm_ijudgments/ilm_ijudgment_19850603.pdf.
[98]Indonesia was, in the words of former Indonesian Foreign Minister Mochtar, ‘taken to the cleaners’ by Australia when these agreements were negotiated (Kaye, supra note 16, at 54).
[99]Supra note 47.
[100]In the referendum which took place on 30 August 1999 and in which almost 99 per cent of the electorate voted, 78 per cent voted in favour of independence rather than autonomy for East Timor within Indonesia. The International Force in East Timor (INTERFET) was deployed under UN auspices from September 1999. Australia played a leading role in the intervention. See, Australian Government, Department of Defence ‘Defence Support to Timor-Leste’. Source: Defence www.defence.gov.au/opspire/.
[101]See UNTAET’s homepage at www.un.org/ peace/etimor/etimor.htm.
[102]See, Exchange of Notes constituting an Agreement between the Government of Australia and the United Nations Transitional Administration in East Timor (UNTAET) concerning the continued operation of the Treaty between Australia and the Republic of Indonesia on the Zone of Co-operation in an area between the Indonesian Province of East Timor and Northern Australia of 11 December 1989, 10 February 2000. Charney and Alexander, supra note 41, at 2753-2795.
[103]Timor Sea Treaty, Dili, 20 May 2002. Source: UN www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS-TLS2002TST.PDF.
[104]Memorandum of Understanding between the Government of the Democratic Republic of East Timor and the Government of Australia concerning an International Unitization Agreement for the Greater Sunrise field, Dili, 20 May 2002. Source: UN , www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS-TLS2002SUN.PDF, and, Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste relating to the Unitization of the Sunrise and Troubadour fields, Dili, 6 March 2003. Source: UN, www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS-TLS2003UNI.PDF.
[105]Woodside owns 33.4 per cent of Sunrise in partnership with ConocoPhillips (30 per cent), Royal Dutch/Shell Group (26.6 per cent) and Japan’s Osaka Gas Co. (10 per cent). Woodside urged Australia and East Timor to reach an agreement by the end of 2004. When this did not materialise, the company suspended work on the Sunrise project and deployed staff elsewhere (The Australian, 14 January 2005).
[106]Transcript of the Prime Minister, the Hon John Howard, MP, Joint Press Conference, Philip Street, Sydney, 12 January 2006 www.pm.gov.au/ news/interviews/Interview1744.html. For a copy of the treaty text see: www.laohamutuk.org/Oil/Boundary/ CMATS per cent20text.htm.
[107]The ‘Unit Area’ was defined under the parties’ unitisation agreement of 2003. Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste relating to the Unitization of the Sunrise and Troubadour fields, Dili, 6 March 2003, supra note 103.
[108]CMATS, Article 2.
[109]The parties are restricted from the direct or indirect initiation of, or participation in, any proceedings relating to maritime boundary delimitation in the Timor Sea before ‘any court, tribunal or other dispute resolution mechanism’ or even raising such issues in ‘any international organisation’. CMATS, Article 4.
[110]Or, ‘until the date five years after the exploitation’ of the area covered by the treaty ceases, ‘whichever occurs earlier’ CMATS, Article 12.
[111]CMATS, Article 12.
[112]CMATS, Article 8 refers to a line which is defined by means of a list of coordinates of latitude and longitude, referred to World Geodetic System 84 and joined by geodesic lines, contained in a treaty Annex. The line so defined is consistent with the southern boundary of the JPDA with Australia to exercise jurisdiction to the south and East Timor to the north.
[113]CMATS, Article 9.
[114]For example, Oxfam released a report in May 2004 in which it was claimed that Australia has appropriated two-thirds of the Timor Sea’s known oil and gas resources even though maritime delimitation according to international law ‘could deliver most, if not all, these resources to East Timor.’ See, Oxfam (2004), Two years on…What future for an independent East Timor?, Fitzroy: Oxfam Community Aid Abroad, May.
[115]See, for example, ‘Critics blast Aus government’s band-aid approach to Timor Sea dispute’, Timor Sea Justice Campaign, Media Release, 12 January 2006.
[116]LOSC Articles 74 and 83 merely provide that delimitation of the EEZ and continental shelf should be reached on the basis of international law ‘in order to achieve an equitable solution’. Former Australian Prime Minister John Howard stated that Australia has exercised jurisdiction over these areas for ‘an extensive period of time’ and that international law does not require revenues from a particular area to be placed in escrow ‘simply because another State subsequently makes an ambit claim to sovereignty rights over that area’ (Letter from John Howard to US Congressman Barney Frank, 2 April 2004, Source: The East Timor and Indonesia Action Network (ETAN), ‘Congress Tells Australia to Treat East Timor Fairly, Urges Expeditious Talks on Permanent Boundary’: www.etan.org/news/2004/03houseltr.htm).
[117]Department of Foreign Affairs and Trade, ‘Changes to International Dispute Resolution’, Joint Media Release, Minister of Foreign Affairs Alexander Downer and Attorney-General, Daryl Williams, 25 March 2002. Source: Minister of Foreign Affairs www.foreignminister.gov.au/releases/2002/fa039j_02.html. See also, Lowe, V., Carleton, C. and Ward, C., ‘In The Matter of East Timor’s Maritime Boundaries Opinion’, 11 April 2002, available at http://www.petrotimor.com/img/LegalOp.pdf.
[118]Reliable figures for the ‘extra’ revenues East Timor can expect to receive are hard to come by, especially in light of the volatility in global oil prices. A number of media sources quoted figures of US$13-15 billion. However, this figure may well include existing revenues for the Timor Sea. The Australian Foreign Minister referred to the figure of A$5.3 billion in additional funds. See, for example, ‘Timor in 13bn gas deal windfall’, The Advertiser, 13 January 2006. On ratification of CMATS and the Sunrise IUA, Mr Downer noted that equal sharing of the upstream revenues deriving from Greater Sunrise ‘could result in Australia and East Timor each receiving up to US$10 billion over the life of the project.’ (Department of Foreign Affairs and Trade, ‘Entry into Force of Greater Sunrise Treaties with East Timor’. Source: Minister of Foreign Affairs www.foreignminister.gov.au/releases/2007).
[119]The decision on the development of Greater Sunrise is up to the Woodside-led consortium holding the rights to the relevant area. While indications are that Woodside is likely to proceed with the project, it is anticipated that it will be several years until that development is realised and revenues begin to flow to the two governments. ‘Sunrise for Woodside in Timor’, The Australian, 14 February 2007.
[120]For example, the World Bank has warned that ‘strengthening oversight institutions, particularly the weak justice sector, are crucial to address growing concerns of corruption’ (World Bank, ‘Timor Leste – Country Brief’. Source: World Bank www.worldbank.org/tl).
[121]See, Department of Foreign Affairs and Trade, ‘Entry into Force of Greater Sunrise Treaties with East Timor’, supra note 117. Alexander Downer, Minister of Foreign Affairs, Australia, media release, 23 February 2007. Source: Minister of Foreign Affairs www.foreignminister.gov.au/releases/2007. The exchange of notes followed swiftly on ratification of the treaty by East Timor’s parliament on 20 February 2007 (by 48 votes to five with three abstentions).
[122]See, for example, Kaye, S.B. (2004), ‘Territorial Sea Baselines Along Ice-Covered Coasts: International Practice and Limits of the Law of the Sea’, Ocean Development and International Law, 35: 75-102.
[123]See, for example, Prescott, J.R.V. and Schofield, C.H. (2005), The Maritime Political Boundaries of the World (2nd ed), Leiden/Boston: Martinus Nijhoff Publishers at chapter 23.
[124]Australian Executive Summary, 17-18.
[125]Australian Executive Summary, 35.
[126]The original French text and an English translation of the French note, dated 28 March 2005. Source: UN www.un.org/Depts/los/clcs_new/submissions_files/submission_aus.htm.
[127]Australia-France delimitation treaty, Article 3. It has been speculated that an extension of the delimitation to cover extended continental shelf will be required east of Point R22 and west of point S1 but not northeast of S8 as the outer limit of the continental margin does not extend far enough. See, Serdy, supra note 72, at 207-208 and Kaye, supra note 16, at 152-156.
[128]Serdy, supra note 72, at 213, is also of this view.
[129]Around 10 per cent of the 28 per cent mentioned relates to the Australia-Indonesia Perth Treaty signed in 1997 but not yet in force. This figure also includes Australia’s territorial sea boundaries with PNG in the Torres Strait which account for around 0.8 per cent of Australia’s overall outer limit. Calculation excludes all external territories (i.e. Antarctica, Ashmore and Cartier Islands, Christmas Island, Cocos (Keeling) Islands, Heard and McDonald Islands, Norfolk Island, Coral Sea Islands) and based on WGS84. Hirst, supra note 5.
[130]See, for example, Carleton, C.M. and Schofield, C.H. (2001), Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines and Maritime Zones, Maritime Briefing, Vol. 3, No. 3 (Durham: International Boundaries Research Unit at p.24 and 62. This phenomenon is, of course, far less likely to occur for the 200 nm limit as opposed to the 12 nm territorial sea limit as the former require far fewer basepoints.
[131]Hirst, B. and Robertson, D. (2004) ‘Geographical Information Systems, Charts and UNCLOS: Can They Live Together?’, Maritime Studies, 136: 1-6.
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