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IS THERE A 400-MILE RULE IN UNCLOS ARTICLE 76(8)?

  • Andrew Serdy (a1)
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1 The negotiations referred to are those culminating in the conclusion of the Timor Sea Treaty (done at Dili, 20 May 2002; 2258 United Nations Treaty Series (hereinafter UNTS) [2003] Australian Treaty Series (hereinafter ATS) 13) together with the Exchange of Notes Constituting an Agreement between the Government of Australia and the Government of the Democratic Republic of East Timor concerning Arrangements for the Exploration and Exploitation of Petroleum in an Area of the Timor Sea between Australia and East Timor (Dili, 20 May 2002; [2002] ATS 11), the Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste relating to the Unitisation of the Sunrise and Troubadour Fields (done at Dili, 6 March 2003; [2007] ATS 11) and most recently the Treaty between the Government of Australia and the Government of the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea (done at Sydney, 12 January 2006; [2007] ATS 12).

2 United Nations Convention on the Law of the Sea, done at Montego Bay, 10 December 1982, UNTS 3.

3 V. Prescott and C. Schofield, The Maritime Political Boundaries of the World, 2nd edn (Martinus Nijhoff, Leiden and Boston, 2005) 185 and 211.

4 ibid 185 and 210–211.

5 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, done at Jakarta, 9 October 1972; 974 UNTS 319, [1973] ATS 32.

6 S. Kaye, Australia's Maritime Boundaries, 2nd edn (Wollongong: Centre for Maritime Policy, University of Wollongong, 2001) 48–49.

7 Convention on the Continental Shelf, done at Geneva, 29 April 1958, 499 UNTS 311.

8 In the North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), ICJ Reports 1969 3, 39.

9 Strict application of paragraph 4 of Article 76 would suggest that Australia's entitlement, subject to delimitation with Timor-Leste, runs all the way to the outer limit of the latter's territorial sea (taking the thalweg as the foot of slope, beyond which the Australian continental shelf could extend up to a further 60 miles). As far as the author is aware, however, Australia has never pressed this point, content to rely on its historical exercise of jurisdiction as far as the thalweg, the seaward limit of the oil exploration licences it granted: Kaye (n 6) 48. The northern boundary of the Zone of Cooperation established by the 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 (done over the Zone of Cooperation, 11 December 1989; 1654 UNTS 105, [1991] ATS 9) was chosen as an approximation of the bathymetric axis of the Timor Trough: ibid at 71.

10 The 10 regions are listed in the Executive Summary of the Australian submission (hereinafter Australian submission), which may be viewed at <http://www.un.org/Depts/los/clcs_new/submissions_files/aus04/Documents/aus_doc_es_web_delivery.pdf> (last accessed, along with all other websites cited herein, on 1 June 2008) and is described in A. Serdy, ‘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’, (2005) 36 Ocean Development and International Law 201. The CLCS adopted its recommendations in response on 9 April 2008: UN doc CLCS/58 (25 April 2008), Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, 3–4 (paragraph 11). These are not described in the document, but the reaction of the Australian Minister for Resources and Energy in his subsequent press release of 21 April 2008 suggests that the outer limits submitted by Australia were approved without significant or any alteration: The Hon Martin Ferguson AM MP, ‘UN confirms Australia's rights over extra 2.5 million square kilometres of seabed’, <http://minister.ret.gov.au/TheHonMartinFergusonMP/Pages/UNCONFIRMSAUSTRALIA%E2%80%99SRIGHTSOVEREXTRA.aspx>. For an overview of the functioning of the CLCS see T.L. McDorman, ‘The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World’ (2003) 17 International Journal of Marine and Coastal Law 301.

11 UN doc CLCS/40 (2 July 2004), Rules of Procedure of the Commission on the Limits of the Continental Shelf, Annex III (Modus operandi for the consideration of a submission to the Commission on the Limits of the Continental Shelf), section II, subparagraph 2(a)(v) invites the submitting State to include in its initial presentation to the CLCS ‘[c]omments on any note verbale from other States regarding the data reflected in the executive summary including all charts and coordinates as made public by the Secretary-General in accordance with rule 50.’ A number of amendments to the Rules have since been consolidated and the whole republished as UN doc CLCS/40/Rev.1 (17 April 2008), but this does not affect any of the provisions cited herein. In all eight States lodged Notes with the Secretary-General on Australia's submission: see <www.un.org/Depts/los/clcs_new/submissions_files/submission_aus.htm>.

12 Note NV/UN/71/2005 (11 February 2005) from the Permanent Mission of the Democratic Republic of Timor-Leste to the United Nations to the Secretary-General of the United Nations, available on the CLCS website at <http://www.un.org/Depts/los/clcs_new/submissions_files/aus04/clcs_03_2004_los_tls.pdf>.

13 See Article 4(7) read with Article 12 of the Treaty on Certain Maritime Arrangements in the Timor Sea, (n 1). It was preceded by the first two treaties cited in the same footnote. Article 83(3) of UNCLOS specifically provides for such interim arrangements.

14 Timor-Leste's main concern—see paragraphs 3 to 10 of the position paper attached to Note NV/UN/71/2005 (n 12)—is the way the Timor Sea is depicted on the Executive Summary's overall map of Australian maritime boundaries. Yet, since the Timor Sea is not among the 10 regions within the Australian submission, no recommendation from the CLCS will have been made in relation to this area—see also nn 21 and 22. Although it is true that neither Australia's 1972 maritime boundary treaty with Indonesia (n 5) nor the subsequent one in 1997 (Treaty between the Government of Australia and the Government of the Republic of Indonesia establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, done at Perth, 14 March 1997 ([1997] Australian Treaties Not In Force 4)) can avoid affecting the shelved Australia/Timor-Leste maritime boundary negotiations, Australia's description of them to which Timor-Leste objects in paragraph 6 of its position paper applies only to the Argo region, well to the west of the Timor Sea (see Map 2). Hence even if, contrary to Timor-Leste's wish, the CLCS were to have placed ‘unqualified reliance’ on those references, it is submitted that the prejudicial consequences Timor-Leste fears (paragraphs 9 and 10) could not possibly follow. That said, it will not have been difficult for the CLCS, now that it has come to frame its recommendations for the Argo region, to do so in language avoiding any implications for any area outside that region. This is in line with the Second Report of the International Law Association Committee on Legal Issues of the Outer Continental Shelf <www.ila-hq.org/pdf/Outer%20Con%20Shelf/Report%202006.pdf> (hereinafter ILA Second Report) 19, where the Explanatory Note to Conclusion No 14 observes that the result of Article 76(10) is that:

the provisions in articles 76(8) and 76(9) concerning the final and binding and permanent nature of the outer limits of the continental shelf cannot be invoked against another State where the delimitation of the continental shelf is concerned. In the light of this provision, other States should in principle accept the consideration of a submission by a coastal State that raises issues of delimitation of the continental shelf, as its consideration and subsequent recommendations will not prejudice their rights.

See also AG Oude Elferink and C Johnson, ‘Outer Limits of the Continental Shelf and ‘Disputed Areas’: State Practice concerning Article 76(10) of the LOS Convention’ (2006) 21 International Journal of Marine and Coastal Law 461, which includes a useful survey of the first six submissions to the CLCS, and the reactions to them of other States.

15 Timor-Leste Position Paper attached to Note NV/UN/71/2005 (n 12) paras 11 and 12 (emphasis added). Note that Timor-Leste is implicitly conceding at least the right, if not the obligation, of a coastal State in this situation to make a submission to the CLCS on an area within 200 miles of another State.

16 It can hardly be supposed that Timor-Leste would have reacted with equanimity to an Australian submission that included the Timor Sea as an eleventh region, despite Australia's assurance in its Executive Summary that its ‘entire submission is made without prejudice to outstanding delimitations, consistent with article 76, paragraph 10 and Annex II, article 9 of UNCLOS’, to the extent of not invoking the provision in paragraph 5 of Annex I to its Rules of Procedure (n 11). This states that the CLCS must refrain from examining submissions in such situations, or examine them only with the consent of the other State(s) concerned—a self-denying ordinance (in the apt words of C. R. Symmons, ‘The Irish Partial Submission to the Commission on the Limits of the Continental Shelf in 2005: A Precedent for Future Such Submissions in the Light of the ‘Disputed Areas’ Procedures of the Commission?' (2006) 37 Ocean Development and International Law 299 at 308) that, as noted by Oude Elferink and Johnson (n 14) 466, is not found in UNCLOS itself. Since establishing the extent of the entitlement of opposite States to a continental shelf, where the CLCS has a role, is anterior to its delimitation between them, where it has none, it does not necessarily follow that for the CLCS to allow outstanding delimitations to act as an automatic brake on its activity in such situations would be any less generative of discord among the States involved than pressing ahead regardless. Resolving this conundrum, however, is a matter for another occasion.

17 CLCS Rules of Procedure (n 11) Annex I (Submission in case of a dispute between States with opposite or adjacent coasts or in other cases of unresolved land or maritime disputes), paragraph 2 requires the CLCS to be ‘(a) Informed of such disputes by the coastal States making the submission; and (b) Assured by the coastal States making the submission to the extent possible that the submission will not prejudice matters relating to the delimitation of boundaries between States.’ See also the Australian Executive Summary (n 10) 6 (outstanding delimitations in general), 11 (boundaries with Norway, France and New Zealand in the Australian Antarctic Territory region) 17–18 (boundary with France in the Kerguelen Plateau region) and 35 (boundary with France in the Three Kings Ridge region).

18 See in this regard the uncontradicted assertion by ‘[s]ome delegations’ at the 2001 meeting of States Parties to UNCLOS ‘that there was no legal consequence stipulated by the Convention if a State did not make a submission to the Commission.’ (Except, surely, the consequence in Article 76(8) itself that the condition precedent to the outer limit of the continental shelf becoming ‘final and binding’ cannot then be met.) Several other (or possibly the same) delegations ‘underscored the principle that the rights of the coastal State over its continental shelf were inherent … ’: UN doc SPLOS/73 (14 June 2001), Report of the eleventh Meeting of States Parties, at 12 (paragraph 75), available at <http://daccessdds.un.org/doc/UNDOC/GEN/N01/411/52/PDF/N0141152.pdf>.

19 See, e.g. Conclusions Nos 1 and 15 in ILA Second Report (n 14) 2 and 19–20 respectively; see also the identical references to Article 77 in the Notes accompanying the Australian and New Zealand submissions to the CLCS regarding the continental shelf off their respective sectoral claims in Antarctica <www.un.org/Depts/los/clcs_new/submissions_files/aus04/Documents/aus_doc_es_attachment.pdf> and <www.un.org/Depts/los/clcs_new/submissions_files/nzl06/nzl_doc_es_attachment.pdf>. In the Australian submission the reference supports the inclusion of this area with a request to the CLCS ‘not to take any action for the time being with regard to the information in this Submission that relates to continental shelf appurtenant to Antarctica’; in that of New Zealand it supports the exclusion of the equivalent area, the submission being described as ‘partial … in accordance with the Commission's rules, not including areas of continental shelf appurtenant to Antarctica, for which a submission may be made later … ’.

20 Annex I, paragraph 3 states that ‘A submission may be made by a coastal State for a portion of its continental shelf in order not to prejudice questions relating to the delimitation of boundaries between States in any other portion or portions of the continental shelf for which a submission may be made later, notwithstanding the provisions regarding the ten-year period established by article 4 of Annex II to the Convention.’

21 Except, presumably, if the view expressed in the previous paragraph is wrong, a recommendation for the coastal State to supplement its submission with information on the outer limit in the missing region(s).

22 (n 10).

23 (n 14).

24 Scott Reef's eligibility to generate an exclusive economic zone and continental shelf, notwithstanding the inability to do so under Article 121(3) of UNCLOS of ‘[r]ocks which cannot sustain human habitation or economic life of their own’, is supported in V Prescott, ‘The Problems of Completing Maritime Boundary Delimitation between Australia and Indonesia’ (1995) 10 International Journal of Marine and Coastal Law 389 at 394. Indonesia's acceptance of this, at least in relation to Sandy Island, forming part of Scott Reef, is noted in the National Interest Analysis tabled in the Australian Federal Parliament along with the 1997 treaty: see <www.austlii.edu.au/au/other/dfat/nia/1997/18.html>; under the subheading ‘Water Column Delimitation’.

25 Question (ii) assumes that there is no obligation to exclude such areas; if this is incorrect, then Australia has obviously complied with it and the issue of damage to its interests does not arise.

26 SN Nandan and S Rosenne (Volume Editors), United Nations Convention on the Law of the Sea, 1982: A Commentary, Vol II (Dordrecht/Boston/London: Martinus Nijhoff, 1993) (hereinafter Virginia Commentary), 837–890. Specifically in relation to the 1997 treaty, according to V. Prescott, ‘Resources of the Continental Margin and International Law’ in PJ Cook and CM Carleton (eds), Continental Shelf Limits: The Scientific and Legal Interface (Oxford University Press, Oxford, 2000) 64 at 73, ‘It is believed that both governments considered that this arrangement needed no approval by the Commission.’ More boldly, but without any supporting argument, CM Carleton, ‘Delimitation Issues’, ibid 312 at 317–318 asserts that ‘there is no requirement for this boundary to be referred to the Commission … both States concerned correctly concluded they did not need the approval of the Commission.’

27 Virginia Commentary (n 26) 876.

28 ibid at 881.

29 ibid at 882.

30 Done at Vienna, 23 May 1969, 1155 UNTS 331.

31 For example, Article 76(1) begins: ‘The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea … ’ (italics added).

32 viz ‘L'Etat côtier communique des informations sur les limites de son plateau continental, lorsque celui-ci s'étend au-delà de 200 milles marins des lignes de base à partir desquelles est mesurée la largeur de la mer territoriale, à la Commission des limites du plateau continental … ’ (italics added).

33 viz ‘El Estado ribereño presentará información sobre los limites de la plataforma continental más allá de las 200 millas marinas contadas desde las líneas de base a partir de las cuales se mide la anchura del mar territorial a la Comisión de Limites de la Plataforma Continental … ’ (italics added; note that the first mention of the continental shelf is preceded by the definite article here too, unlike the French and English).

34 That is, ‘sa mer territoriale’ in the French, ‘su mer territorial’ in the Spanish and ‘ето территориального моря’ in the Russian (italics added). With the single exception mentioned at the end of the previous footnote, there is complete concordance among the four languages in all the other provisions of the Convention quoted in the main text between nn 29 and 32. The author regrettably is not in a position to comment on the Arabic and Chinese authentic texts.

35 Prescott does not indicate the reason for his belief (n 26), but if it is informal conversations he may have had with negotiators of the 1997 treaty on one or both sides, that would reinforce the conclusion that the risk Australia is running is fairly slight.

36 This is only superficially an exception to the principle that treaties do not bind non-parties to them (Vienna Convention on the Law of Treaties (n 30) Article 34), since while overlapping continental shelf entitlements remain undelimited, the position is that the area must be the continental shelf of one or other of the coastal States, and the delimitation treaty does not alter this.

37 (n 13).

38 Given that the author's previous affiliation with the Australian Government included work on Timor Sea issues, the subconscious nature of the inferred news should be stressed; no sentiment of this kind, to the best of his recollection, was ever expressed to him by any colleague.

39 The description of the part of the 1997 treaty boundary between points A51 and A79 in Kaye (n 6) 57, otherwise an excellent work, is rather hard to follow: ‘the line lies at a point equidistant between the Australian EEZ and the legal prolongation of the continental shelf would have been entitled to in the absence of Indonesia’. (Kaye's ‘A 70’, a point where there is no sharp change in direction, also appears to be a misprint for A79, where there is.) The National Interest Analysis for the 1997 treaty (n 24), only partly clarifies matters, as the line between these points is said to be ‘following a median line between the respective seabed claims: the natural prolongation of Australia's land mass and the PFSEL [Provisional Fisheries Surveillance and Enforcement Line, on which see Kaye at 51–53] in the case of Indonesia.’ Yet the PFSEL does not extend this far west: see the 1981 Memorandum of Understanding which established it, reproduced along with a map in JI Charney and LM Alexander (eds), International Maritime Boundaries, Vol II (Martinus Nijhoff, Dordrecht, 1993) 1229–1243.

40 (n 5).

41 That is, since Article 82 would apply to Australia if the area were on its side of the boundary, but not to Timor-Leste if the position were reversed, the two States' joint benefit from the area is maximized—at the expense of the ISA fund—by Timor-Leste gaining the whole area more than 200 miles from Australia, and it would pay Timor-Leste, up to a point, to compensate Australia in other areas or other ways for agreeing to abandon its claim to it. The same applies mutatis mutandis, of course, to the truncated part of the Argo region.

42 See, eg RR Churchill & AV Lowe, The Law of the Sea, 3rd edn (Manchester University Press, 1999) 157; Virginia Commentary (n 26) 834–835.

43 Although Ambassador Pardo's original expectation in proposing that the deep seabed beyond national jurisdiction become the common heritage of mankind was that the coastal States' continental shelves would be relatively narrow, leaving significant petroleum resources to be exploited under the international regime: LB Sohn and JE Noyes, Cases and Materials on the Law of the Sea (Transnational, Ardsley, NY, 2004) 596, Article 76 as ultimately drafted defeats this intention. Since petroleum deposits are continental in origin, they do not occur under oceanic crust, and coastal States have thus ended up as the sole beneficiaries of the move to the Article 76 formula from the previous one in the 1958 Convention on the Continental Shelf (n 7). Although it has not yet been necessary to apply Article 82, developments in the Gulf of Mexico and on the Grand Banks of Newfoundland are bringing closer the day when the difficulties of interpretation that Article 82 engenders—see eg MW Lodge, ‘The International Seabed Authority—Its Future Directions’, in MH Nordquist, J Norton Moore and TH Heidar (eds), Legal and Scientific Aspects of Continental Shelf Limits (Martinus Nijhoff, Leiden, 2004) 403–409—will need to be resolved.

44 Australian Executive Summary (n 10) 12 (Figure 4), 13 (Figure 5) and 41 (explanatory note).

45 See (n 14) and accompanying text.

Thanks are due to Alex Oude Elferink for helpful comments on an earlier draft.

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