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The Torres Strait Treaty: Ocean Boundary Delimitation by Agreement

Published online by Cambridge University Press:  27 February 2017

H. Burmester
H. Burmester*
Affiliation:
Australian National University
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Extract

The delimitation of maritime boundaries is one of the major areas of ocean law where disputes between countries occur with frequency and where the development of governing principles of law remains difficult. At the Law of the Sea Conference, delimitation of the continental shelf and economic zones between states with opposite or adjacent coasts was one of the last issues to be resolved. Major judicial and arbitral decisions, such as the North Sea Continental Shelf cases before the International Court of Justice and the Anglo-French Continental Shelf arbitration, have gone some way to developing a body of relevant law to assist states in the solution of their maritime boundary problems. These decisions have clarified some of the relevant factors that states should take into account, but major boundary problems remain. On the Aegean Sea, Greece and Turkey have still not reached any solution; relations between Canada and the United States have been severely strained by their slow progress on maritime boundary issues; Libya and Tunisia have referred their continental shelf dispute to the International Court of Justice.

Type
Research Article
Information
American Journal of International Law , Volume 76 , Issue 2 , April 1982 , pp. 321 - 349
Copyright
Copyright © American Society of International Law 1982

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References

1 Arts. 74(1) and 83(1) of the Draft Convention on the Law of the Sea (Aug. 1981), UN Doc. A/CONF.62/L.78. Oxman points out that the agreed texts were not considered satisfactory by many states. Oxman, , The Third United Nations Conference on the Law of the Sea: The Tenth Session (1981), 76 AJIL 1, 14–15 (1982)Google Scholar.

Further citations in this article to the Draft Convention will refer to the Informal Text of August 1980, UN Doc. A/CONF.62/WP.10/Rev.3, reprinted in 19 ILM 1126 (1980).

2 [1969] ICJ Rep. 3.

3 The United Kingdom of Great Britain and Northern Ireland and the French Republic Delimitation of the Continental Shelf Decision of 30 June 1977, Cmnd. 7348 (1978), reprinted in 18 ILM 397 (1979). For brief notes on the case, see Colson, , The United Kingdom-France Continental Shelf Arbitration, 72 AJIL 95 (1978)Google Scholar and 73 id. at 112 (1979). A further discussion appears in Bowett, , The Arbitration Between the United Kingdom and France Concerning the Continental Shelf Boundary in the English Channel and South– Western Approaches, 49 Brit. Y.B. Int’l L. 1 (1978)Google Scholar.

4 An attempt by Greece to bring the matter before the International Court of Justice failed. Aegean Sea Continental Shelf Case (Greece v. Turkey) (Jurisdiction), [1978] ICJ Rep. 3. For a summary, see 73 AJIL 493 (1979).

5 The Treaty Between the Government of the United States of America and the Government of Canada to Submit to Binding Dispute Settlement the Delimitation of the Maritime Boundary in the Gulf of Maine Area was signed on March 29, 1979. It was linked with the Agreement on East Coast Fishery Resources, which ran into major opposition in Congress and was withdrawn in March 1981 by President Reagan. However, both countries have now ratified the Treaty as amended and the boundary dispute is being submitted to a Chamber of the ICJ. The Treaty and Agreement, in S. Exec. Docs. U and V, respectively, 96th Cong., 1st Sess. (1979), are reprinted in 9 New Directions in the Law of the Sea 157–210 (Nordquist, M. & Simmons, K. eds. 1980)Google Scholar. See Rhee, , The Application of Equitable Principles to Resolve the United States-Canada Dispute over East Coast Fishery Resources, 21 Harv. Int’l L.J. 667 (1980)Google Scholar; McRae, , Adjudication of the Maritime Boundary in the Gulf of Maine, 17 Can. Y.B. Int’l L. 292 (1979)Google Scholar; Rhee, , Equitable Solutions to the Maritime Boundary Dispute Between the United States and Canada in the Gulf of Maine, 75 AJIL 590 (1981)CrossRefGoogle Scholar; Feldman, & Colson, , The Maritime Boundaries of the United States, id. at 729 Google Scholar.

6 At the time of writing, no decision had yet been given in this case. See Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), [1979] ICJ Rep. 3, for the order setting the procedure and time limits for the hearing of the case.

7 For the text, see 18 ILM 291 (1979). The treaty is subject to ratification.

8 For the most detailed study on the socioeconomic conditions of the area, see the Torres Strait Islanders series published by the Research School of Pacific Studies, Australian National University, 1974–1975, particularly vol. I, H. Duncan, Socio-Economic Conditions in the Torres Strait; vol. V, The Border and Associated Problems (E. K. Fisk ed.), and vol. VI, E. K. Fisk, Policy Options in the Torres Strait.

9 The author is indebted to G. Dabb, a member of the Papua New Guinean negotiating team, for a valuable exchange of views on the different perceptions of the two countries.

10 For a more detailed description of the historical background, see P. van der Veur, Search for New Guinea’s Boundaries, ch. 3 (1966). See also Joint Foreign Affairs and Defence Committee, The Torres Strait Boundary, [Australian] Parliamentary Paper 416/1976, App. IX, which reproduces many of the documents and correspondence relating to the alteration of the boundary in 1879.

11 The detailed reasoning and documentation that led to this conclusion are contained in a document entitled Status of the Islands of Kawa, Mata Kawa and Kussa, tabled in the Australian Parliament. The document is reproduced as an Annex to Joint Foreign Affairs and Defence Committee, The Torres Strait Treaty, [Australian] Parliamentary Paper 101/1979.

12 This view is not universally shared. See the remarks of Griffin, J., Territorial Implications in the Torres Strait, in The Torres Strait Treaty 92–137 (Boyce, P. & White, M. eds., 1981)Google Scholar.

13 15 Stat. 539, TS No. 301, 11 Bevans 1216.

14 The U.S. State Department apparently takes the view that the 1867 line defines the boundary between the continental shelves of the United States and the USSR. See Feldman & Colson, supra note 5, at 751–53.

15 Bourne, & McRae, , Maritime Jurisdiction in the Dixon Entrance: The Alaska Boundary Reexamined, 14 Can. Y.B. Int’l L. 175 (1976)Google Scholar.

16 Papua New Guinea became independent on Sept. 16, 1975. In May 1976, the Foreign Ministers of Papua New Guinea and Australia publicly stated that the line “does not represent the Australian view of the appropriate permanent location of the seabed boundary,” 47 Austl. Foreign Aff. Rec. 336 (1976).

17 Agreement between Australia and Indonesia establishing Certain Seabed Boundaries, May 18, 1971, in United Nations, National Legislation and Treaties Relating to the Law of the Sea, UN Doc. ST/LEG/SER.B/18, at 433 (1976), reprinted in 10 ILM 830 (1971).

18 44 Austl. Foreign Aff. Rec. 41 (1973).

19 A detailed description of the negotiations with Papua New Guinea, and between the Australian and Queensland governments, up to October 1975 appears in a statement to the Australian House of Representatives by Mr. Whitlam on Oct. 9, 1975, reproduced in 46 id. at 586 (1975).

20 47 id. at 336 (1976).

21 Joint Foreign Affairs and Defence Committee, supra note 10, at 11–12.

22 Section 123 of the Australian Constitution requires the consent of the Parliament of a state, and the approval of the majority of the electors of a state, before the limits of a state can be increased, diminished, or otherwise altered. Any cession of islands forming part of the state of Queensland would therefore be subject to this provision, and the necessary approvals were unlikely to be forthcoming.

23 Text of joint communiqué by Prime Ministers of Australia and Papua New Guinea, Feb. 11, 1977, 48 Austl. Foreign Aff. Rec. 88 (1977).

24 The legislation consisted principally of the National Seas Act (No. 7 of 1977). It established a territorial sea of 12 miles, provided for declaration of archipelagic baselines, and created offshore seas extending 200 miles from the baselines. Five other specific resource-related laws were enacted. See Krueger, & Nordquist, , The Evolution of the 200-Mile Exclusive Economic Zone: State Practice in the Pacific Basin, 19 Va. J. Int’l L. 322, 353–55 (1979)Google Scholar. Papua New Guinea has not yet established archipelagic baselines; the legislation is merely enabling in this respect.

25 It was not until March 1978 that the National Seas legislation was actually proclaimed. By then Australia and Papua New Guinea had been able to work out suitable interim arrangements, which ensured as little overlap in jurisdiction as possible. See the statement by the Australian Foreign Minister, March 31, 1978, 49 Austl. Foreign Aff. Rec. 152 (1978). It was November 1979 before Australia declared its own 200-mile fishing zone, at which time special interim arrangements in relation to the exercise of jurisdiction in the Torres Strait area were introduced. Commonwealth of Australia Gazette S225 (Nov. 2, 1979).

26 Supra note 11 and accompanying text.

27 49 Austl. Foreign Aff. Rec. 242 (1978).

28 For a detailed account of the islanders’ way of life, see H. Duncan, supra note 8; Joint Foreign Affairs and Defence Committee, supra note 10, at 22–34.

29 The study by Duncan, supra note 8, highlights the lack of interest by many of the islanders in earning cash income, because of an alternative source of income from public money. This is clearly not the attitude of Papua New Guineans, who are seeking to develop commercial fishing.

30 See the islanders’ views in a memorandum prepared by Island Chairmen in September 1975, Joint Foreign Affairs and Defence Committee, supra note 10, at 40.

31 Art. 10(1).

32 Annex 9 to the Treaty gives the detailed description.

33 Art. 10(3).

34 Art. 10(4).

35 Art. 11.

36 Art. 1(3).

37 Art. 1(1).

38 Ibid.

39 Ibid.

40 Art. 12.

41 Art. 13(1) and (2)

42 Art. 13(5).

43 Art. 14.

44 Art. 15.

45 Art. 16.

46 Art. 16(3).

47 Art. 18.

48 Art. 19.

49 Extensive consultations were held with the local inhabitants, including several visits to the area by Australian Government ministers.

50 On April 2, 1974. For the text, see Joint Committee on Foreign Affairs and Defence, supra note 10, at 77.

51 See the statement by Mr. Whitlam in October 1975, supra note 19.

52 Art. IX, UN Doc. A/C.1/1035 (1973), reproduced in 12 ILM 1291 (1973).

53 Treaty Relating to Boundary Waters of Canada and the United States, Jan. 11, 1909, 36 Stat. 2448, TS No. 548, 12 Bevans 319; Agreement on Great Lakes Water Quality, April 15, 1972, 23 UST 301, 24 UST 2268, TIAS Nos. 7312, 7747, reprinted in 11 ILM 694 (1972); Agreement on Great Lakes Water Quality, Nov. 22, 1978, 30 UST 1383, TIAS No. 9257.

54 As mentioned above, the Joint Advisory Council has no executive or management powers under the Treaty.

55 Art. 4(1).

56 Infra p. 339.

57 Supra note 17.

58 It terminates at the point where the 200-mile zones cease to overlap.

59 See Karl, , Islands and the Delimitation of the Continental Shelf: A Framework for Analysis, 71 AJIL 642 (1977)CrossRefGoogle Scholar. Hodgson, R. D. in 1973 suggested a special regime might be considered to protect the interests of masked coastal states such as Papua New Guinea: Islands and Special Circumstances, in Law of the Sea: The Emerging Regime of the Oceans 137, 173 (Gamble, J. K. & Pontecorvo, G. eds., 1973)Google Scholar. See also the comprehensive analysis of state practice in C. R. Symmons, The Maritime Zones of Islands in International Law, ch. IV (1979).

60 The maps are reproduced in 18 ILM 325, 327 (1979).

61 Infra p. 342.

62 Supra note 3.

63 See Blecher, , Equitable Delimitation of Continental Shelf, 73 AJIL 60 (1979)CrossRefGoogle Scholar; Karl, supra note 59; Symmons, The Canadian 200-mile Fishery Limit and the Delimitation of Maritime Zones around St. Pierre and Miquelon, 12 Ottawa L. Rev. 145 (1980).

64 Australia from 1967 did assert jurisdiction in a 12-mile fishing zone. It was prepared to forgo this in the final Treaty settlement.

65 Proportionality was one of the factors, apart from special geographic and physical factors, that the International Court in the North Sea Continental Shelf cases said should be taken into account. [1969] ICJ Rep. at 54.

66 Joint Foreign Affairs and Defence Committee, supra note 9, at 40.

67 Contrast the Agreement between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, Jan. 30, 1974, reproduced in 2 S. ODA, The International Law of Ocean Development 95 (1975).

68 Art. 4(2). Fisheries jurisdiction is defined in Article 1 as “sovereign rights for the purpose of exploring and exploiting, conserving and managing fisheries resources other than sedentary species.”

69 Art. 3(1) and Ann. 1 to the Treaty.

70 Art. 56, supra note 1.

71 Art. 4(4).

72 Art. 4(3).

73 Papua New Guinea under its National Seas legislation, supra note 24, established a 200-mile zone of offshore seas. It has not, however, legislated to control matters such as scientific research or pollution. Australia has to date only established a 200-mile fishing zone.

74 Article 56 sets out the matters over which a coastal state has sovereign rights or jurisdiction. Article 59 recognizes that Article 56 may not be exhaustive and provides for resolution of conflicts that may arise in respect of unattributed rights or jurisdiction.

75 Art. 4(3).

76 Supra note 71.

77 Supra note 1.

78 Ibid. Article 60 only confers jurisdiction over installations and structures for the purposes provided for in Article 56 and other economic purposes or if they may interfere with the exercise of the rights of the coastal state in the zone.

79 Ibid. Article 80 applies Article 60 mutatis mutandis to the continental shelf.

80 Supra p. 333.

81 E.g., McRae, supra note 5, at 301.

82 An interesting argument is made by Professor Lumb that, in order to avoid different delimitation lines, it may be possible in some circumstances for fisheries zones to be delimited by lines other than median lines. This writer is not attracted by the argument. Lumb, , The Delimitation of Maritime Boundaries in the Timor Sea, 7 Austl. Y.B. Int’l L. 72, 84–86 (1981)Google Scholar.

83 Negotiations between Australia and Indonesia are being conducted to fill the “gap” opposite East Timor in the seabed line negotiated by Australia and Indonesia in 1972. At the time, East Timor was a Portuguese colony and no separate agreement was reached in relation to this area. Negotiations are also being held to reach agreement on a delimitation line for fisheries purposes.

84 When Australia established a 200-mile fishing zone in 1979, the interim delimitation line established between Australia and Indonesia was a median line drawn from the most favorable base points, including a number of small islands. Commonwealth of Australia Gazette, supra note 25, at S225. In the Timor Sea area, however, it does not extend in places as far as the seabed line negotiated in 1972. See Agreement between Australia and Indonesia establishing certain Seabed Boundaries in the Area of the Timor and Arafura Seas, supplementary to the Agreement of 18 May 1971, Oct. 9, 1972, in National Legislation and Treaties Relating to the Law of the Sea, supra note 17, at 441, reprinted in 11 ILM 1272 (1972) and 12 id. at 357 (1973).

85 Supra note 1.

86 Article 303 was first adopted at the resumed ninth session in August 1980. It recognizes that states have the duty to protect archaeological objects and objects of historical origin found at sea. It then provides that in order to control traffic in such objects the coastal state may, in exercising its rights in relation to the contiguous zone, presume that their removal from the seabed from the area of the contiguous zone would result in an infringement within its territory or territorial sea of the regulations of the coastal state that apply to the contiguous zone. This most unusual provision represents a compromise that was forced on a largely apathetic conference. From a legal point of view, it represents a peculiar addition to the contiguous zone regime. Owing largely to the efforts of Australia, the article goes on to provide that it is without prejudice to other international agreements and rules of international law regarding the protection of archaeological objects. For further discussion of Article 303, see Oxman, , The Third United Nations Conference on the Law of the Sea: The Ninth Session (1980), 75 AJIL 211, 239–41 (1981)Google Scholar. For archaeological and historical objects found in the Area beyond national jurisdiction, see the Draft Convention, Art. 149.

87 Historic Shipwrecks Act, 1976.

88 The generally accepted definition of an island at international law is “a naturally–formed area of land, surrounded by water, which is above water at high tide.” Geneva Convention on the Territorial Sea and the Contiguous Zone, 15 UST 1606, TIAS No. 5639, 516 UNTS 205, Art. 10.

89 An examination of Annex 4 to the Treaty, which illustrates the territorial sea around certain of the islands, indicates the tiny features that were categorized as islands.

90 Article 2(3)(b) provides that Australia recognizes the sovereignty of Papua New Guinea over “(b) all the other islands that lie between the mainlands of the two countries and north of the [seabed] line . . ., other than the islands specified in subparagraph 1(a) of this Article.” See Dingley, , Eruptions in International Law: Emerging Volcanic Islands and the Law of Territorial Acquisition, 11 Cornell Int’l L.J. 121 (1978)Google Scholar.

91 Supra note 11.

92 It did, however, claim a 12-mile fishing zone in 1967.

93 Supra note 24.

94 Art. 3(1).

95 Ann. 3 to the Treaty. The limits are shown on maps forming Annex 4.

96 Art. 3(2).

97 Art. 3(6)(b).

98 Supra note 3.

99 See the discussion in Symmons, supra note 63.

100 International lawyers appear divided over whether a solution by which a state would renounce any territorial sea around certain territory is possible. In the Fisheries case between Norway and the United Kingdom, Lord McNair, in his dissenting opinion, said:

To every State whose land territory is at any place washed by the sea, international law attaches a corresponding portion of maritime territory consisting of what the law calls territorial waters. . . . International law does not say to a State: “You are entitled to claim territorial waters if you want them.” No maritime State can refuse them. . . . The possession of this territory is not optional, not dependent upon the will of the State, but compulsory.

[1951] ICJ Rep. 116, 160. This view of the inseparability of territorial sea from land is supported by J. H. W. Verzijl because “as a general rule” the territorial sea has “no independent existence as an element of the national territory severed from the coast which it borders.” 3 J. Verzijl, International Law in Historical Perspective 54–55 (1970). This view is also supported in 1 L. Oppenheim, International Law 463 (8th ed. H. Lauterpacht, 1955).

This view is not supported, however, by G. Schwarzenberger, who says that it is “not easy to see why a coastal State should contravene international law if it relinquished its claims to a part or the whole of its territorial sea.” 1 G. Schwarzenberger, International Law 324 (3d ed. 1957). He does not consider that the argument that a state has duties, as well as rights, in the territorial sea requires that jurisdiction over the territorial sea be regarded as compulsory. He says, however, that “so long as, for any purposes, [a state] claims the right of jurisdiction over its territorial sea, it is clear that it is subject to all the duties which international law imposes on a State which claims such rights.” Id. at 325. See also I. Brownlie, Principles of Public International Law 124 (2d ed. 1973).

101 See “Fisheries Resources” infra.

102 Arts. 20–28.

103 Art. 1.

104 Ibid.

105 Art. 23(7). Article 22 provides for the parties, where appropriate, to negotiate subsidiary conservation and management arrangements.

106 The parties may agree on a point other than the processing facility, but prior to any enhancement of the value through processing or further transportation or marketing. Art. 23(6).

107 Art. 24.

108 Art. 25.

109 Art. 26.

110 Art. 28.

111 Ibid.

112 Nov. 19, 1973, reprinted in 13 ILM 251 (1975).

113 Feb. 24, 1977, 28 UST 5571, TIAS No. 8648, reprinted in 16 ILM 590 (1977). The Agreement was temporary and is no longer in force.

114 Supra note 5, especially Colson & Feldman, at 754–60.

115 The only provision made was the inclusion of the normal common deposit article providing for consultation and equitable sharing of the proceeds of a single accumulation extending across the seabed jurisdiction line. See Art. 6.

116 Territorial Sea Convention, supra note 88, Art. 14.

117 Supra note 1, Arts. 37 and 38.

118 Art. 7.

119 Art. 7(6).

120 8 Third United Nations Conference on the Law of the Sea, Official Records, UN Doc. A/CONF.62/WP.10 and Add.1 (1977), reprinted in 16 ILM 1108 (1977), issued at the conclusion of the sixth session of the Law of the Sea Conference.

121 Supra note 1, Arts. 34–44.

122 Agreement on East Coast Fishery Resources, supra note 5. The Agreement contains complex management and sharing arrangements for individual fishing stocks.

123 Agreement to Submit to Binding Dispute Settlement the Delimitation of the Maritime Boundary in the Gulf of Maine Area, supra note 5, Art. II.