Melbourne Law School - Theses

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Start date: 1980 × End date: 2009 × Author: Bialek, Dean Marc. ×

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    Zones of cooperation : the emergence of a cooperative and functional Australian approach to the resolution of disputes over maritime jurisdiction and sovereign rights
    Bialek, Dean Marc. (University of Melbourne, 2003)
    This thesis attempts to demonstrate the emergence of a cooperative and functional Australian approach to the resolution of overlapping claims to maritime jurisdiction and sovereign rights. Maritime boundary arrangements agreed by Australia and its northern neighbours - Papua New Guinea, Indonesia and now, East Timor � reveal a strong Australian resolve to overcome difficult and complex geographical, geomorphological, historical and political obstacles to agreement through a thorough and patient process of negotiation. With Indonesia and Papua New Guinea respectively, Australia has adopted the unique approach of agreeing to separate boundaries delimiting overlapping claims to sovereign rights in respect of the seabed on the one hand, and the water column on the other. The adoption of distinct lines for these distinct categories of maritime sovereign rights gives rise to a number of practical difficulties, the most acute being the exercise of jurisdiction in areas where Australian seabed jurisdiction underlies the water column rights of its northern neighbours. Common to the finely balanced regimes agreed under the 1978 Torres Strait Treaty and the 1997 Australia-Indonesia Maritime Delimitation Treaty is the prescription that the state intending to conduct marine activities pursuant to one set of sovereign rights must variously cooperate, inform, consult or seek agreement so as to avoid the unannounced infringement of the treaty partner's rights or interests. In the Timor Gap, maritime boundaries have proven elusive, necessitating the pursuit of more creative approaches to the resolution of overlapping maritime claims. Guided by the wording of article 83(3) of the 1982 United Nations Convention on the Law of the Sea, Australia has concluded with Indonesia (the 1989 Timor Gap Treaty) and subsequently with East Timor (the 2002 Timor Sea Treaty) 'provisional arrangements of a practical nature' that have underpinned ongoing petroleum activities in the Timor Gap whilst at the same time preserving the disputant states' maritime claims and negotiating positions in respect of permanent maritime boundaries. Similarly, the International Unitisation Agreement fir Greater Sunrise provides a secure and 'sovereignty-neutral' legal and fiscal framework for the development of a major gas resource that straddles two distinct jurisdictional regimes. None of these agreements involved the intervention of a third party, nor reference of the overlapping claims to a process of arbitration, and appear, at least in part, to be motivated by the clear and unambiguous Australian preference for a press of bilateral negotiations to discuss, consider and eventually resolve its overlapping maritime claims. There is no stronger expression of this preference than the Australian Government's decision in 2002 to withdraw maritime boundary disputes from the scope of its consent to the compulsory jurisdictions of the International Court of Justice and the International Tribunal on the Law of the Sea. The Australian approach is based on a belief that parties to a negotiation are in a better position than third parties to achieve stable and desirable outcomes that are conducive to cooperation in the management of marine resources. Whatever the motivations for this distinctive approach, Australia has emerged as a global leader in the negotiation, design and conclusion of creative and cooperative maritime arrangements aimed at overcoming otherwise intractable maritime sovereignty disputes. The raft of arrangements agreed between Australia and her northern neighbours is an exemplar to other disputant states of the utility of creative international legal regimes to underpin access to the marine and seabed resources between them.