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Maritime Legislation Amendment Bill 1993



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House: Senate

Portfolio: Transport and Communications

Commencement: The provisions examined in the 'Main Provisions' section of this Digest will commence on a day to be fixed by proclamation, or if they do not commence within six months of this proposed Act receiving the Royal Assent, they will be deemed to commence on the first day after that period.

Purpose

To provide for the establishment of an exclusive economic zone, a contiguous zone and new definition of continental shelf by giving effect in Australian law to Parts II, V and VI of the 1982 United Nations Convention on the Law of the Sea.

Background

Convention on the Law of the Sea (the Convention)

On 10 December 1982, the United Nations Convention on the Law of the Sea (the Convention) was opened for signature. (This followed nine years work and negotiation by the Third United Nations Conference on the Law of the Sea.) At present, there are 157 signatories, 59 of which have also ratified the Convention. Australia signed the Convention on 10 December 1982 but has not yet ratified. Countries in Australia's region which have ratified the Convention include: Indonesia, Fiji and the Philippines. Those which have signed include: China, Japan, Malaysia, New Zealand and Papua New Guinea. The United Kingdom, United States and the Federal Republic of Germany have not yet signed the Convention. Article 308 of the Convention provides that the Convention will enter into force twelve months after receiving 60 ratifications or accessions.

Even though the Convention has not entered into force, many of the principles in the Convention have become and will become customary international law, and thereby affect States which have not yet ratified or have not signed.

The Convention deals with almost every human use of the oceans. It contains provisions governing the limits of national jurisdiction over ocean space, access to the seas, navigation, protection and preservation of the marine environment, exploitation of living resources and conservation, scientific research, sea-bed mining and other exploitation of non-living resources, and the settlement of disputes. 1 The Convention states the principle that the resources of the deep sea bed beyond national jurisdiction are the 'common heritage of mankind'. 2 This Bill will give effect in Australian law to Parts II, V and VI of the Convention.

Part II - Territorial Sea and Contiguous Zone

Part II of the Convention contains provisions relating to a coastal State's jurisdiction over its territorial sea. Article 3 allows for the establishment of a territorial sea of up to 12 nautical miles in breadth. Under Article 17, ships of all States are allowed "innocent passage" through a State's territorial sea. The term "innocent passage" is defined generally in Articles 18 and 19. Passage is defined to be the continuous and expeditious navigation through a territorial sea for the purpose of traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters, or proceeding to or from internal waters or a call at such roadstead or port facility. Passage is defined to be innocent if it is not prejudicial to the peace, good order or security of the coastal State, and conforms with the Convention and other rules of international law.

Article 17 prevents a coastal State from hampering the innocent passage of foreign vessels in its territorial sea. Article 21 allows a coastal State to pass legislation consistent with the provisions of the Convention and other rules of international law on a number of issues, including: the safety of navigation and the regulation of maritime traffic; the conservation of the living resources of the sea; the prevention, reduction and control of pollution; and the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.

Under Article 33, a coastal State may, in the 12 nautical mile zone contiguous (adjoining) to its territorial sea exercise the control necessary to prevent and punish infringements of its customs, fiscal, immigration and sanitary laws and regulations where the infringement has been committed in its territory or territorial sea. Effectively, Article 33 extends the limit of a coastal State's enforcement powers to a distance of 24 nautical miles.

Part V - Exclusive Economic Zone

Part V of the Convention contains provisions relating to exclusive economic zones. Part V allows the establishment of exclusive economic zones in water up to 200 nautical miles adjacent to a coastal State's territorial sea (Articles 55 and 57). Under Article 56, a coastal State is accorded sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil. In addition, a coastal State is accorded jurisdiction over artificial islands, installations, structures and marine scientific and environmental protection. In a coastal State's exclusive economic zone, all States are entitled to enjoy, subject to the provisions of the Convention, the freedoms of navigation and overflight, as well as to lay submarine cables and pipelines (Article 58).

As noted above, the Convention allows a coastal State certain rights in its exclusive economic zone, most notably rights over fishing and exploitation of non-living resources. However, at the same time the Convention, under Articles 69 and 70, allows land-locked and geographically disadvantaged States access to those resources of the exclusive economic zone that the coastal State does not exploit. The provisions of Articles 69 and 70 do not apply in the case of a coastal State whose economy is overwhelmingly dependent on the exploitation of the living resources of its exclusive economic zone (Article 71).

A measure of protection is accorded under Article 64 to highly migratory species of fish and marine mammals. States whose nationals fish in the region for highly migratory species listed in Annex I to the Convention are required to co-operate directly with each other, or through appropriate international organisations, with a view to ensuring conservation and promoting the optimum utilisation of such species throughout the region.

Part VI - Continental Shelf

Part VI of the Convention contains provisions relating to the rights of a coastal State to the continental shelf. Under Article 76, the boundary of the continental shelf of a coastal State is set at 200 nautical miles from the shore baseline, but up to 350 nautical miles in cases where the continental shelf extends further or a further boundary 100 nautical miles outward from the 2 500 metre isobath, which is a line connecting the depth of 2 500 metres.

Under Article 77, a coastal State is accorded sovereignty over the continental shelf for the purpose of exploration and exploitation of its natural resources. The exercise of the rights of a coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States provided for under the Convention (Article 78).

Under Article 82, coastal States are required to make payments or contributions for exploiting the non-living resources of the continental shelf beyond the 200 nautical mile limit. Payments and contributions are to be made annually with respect to all production at a site after the first five years of production. For the sixth year, the rate of payment or contribution is 1% of the value or volume of production at the sitE. The rate then increases by 1% for each subsequent year until the twelfth year where it is fixed at 7%. A developing State which is a net importer of a mineral resource produced from its continental shelf is exempt from the requirements to make payments or contributions.

The Bill

The principal amendments proposed by this Bill are to the Seas and Submerged Lands Act 1973. The amendments proposed by this Bill, other than those relating to the contiguous zone, the establishment of an exclusive economic zone and the continental shelf, do not change existing sovereign rights and jurisdiction, rather, they replace references to the 1958 Convention on the Territorial Sea and Contiguous Zone and Convention on the Continental Shelf (the 1958 Conventions) with references to comparable provisions in the 1982 Convention.

Giving effect in Australian law to Part II of the Convention, as proposed by this Bill, does not radically changing existing rights. It will however, give Australia greater control over foreign shipping and extend the power of the Commonwealth to enforce customs, immigration and environmental control laws within its territorial waters and the contiguous zone. This Bill, in providing for a contiguous zone extends the limit of Australia's territorial sea to a distance of 24 nautical miles. 3

Giving effect to Part V of the Convention, as proposed by this Bill, will allow Australia to establish a 200 mile exclusive economic zone. This action, while not radically changing existing rights (Australia since 1978 has maintained a 200 nautical mile fishing zone and since 1980 has exercised control over marine mammals), will allow Australia greater control over both living and non-living resources than provided for under the 1958 Conventions.

Giving effect to Part VI of the Convention, as proposed by this Bill, will allow Australia to claim a larger total area of the continental shelf than under the 1958 Conventions. Should Australia ratify the Convention, Australia will be required to make payments to the International Sea-Bed Authority which will share with parties to the Convention, in accordance with Article 82, part of the revenue derived from exploiting the continental shelf beyond the 200 mile limit.

Main Provisions

Commencement: The provisions examined in the 'Main Provisions' section of this Digest will commence on a day to be fixed by proclamation, or if they do not commence within six months of this proposed Act receiving the Royal Assent, they will be deemed to commence on the first day after that period (clause 2).

Amendments to the Seas and Submerged Lands Act 1973

New definitions of the 'contiguous zone', 'exclusive economic zone' and 'territorial sea' will be inserted into the Principal Act by subclause 6(b). The meaning of these terms is as set out in Articles 3 and 4, 33, 55 and 57 of the Convention. A brief outline of these Articles is contained in the 'Background' section of this Digest.

Subclauses 6(e) and 6(f) provide that where a Proclamation sets the limits of the exclusive economic zone or contiguous zone, the zones will extend to the limits declared by the Proclamation.

New sections 10A-10C, dealing with the exclusive economic zone, will be inserted into the Principal Act by clause 10. Proposed section 10A provides that the rights and jurisdiction of Australia in its exclusive economic zone are vested in the Commonwealth. Proposed section 10B allows the making of a Proclamation, not inconsistent with the Convention or any relevant international agreement to which Australia is a party, setting the limits of the whole or any part of Australia's exclusive economic zone.

Section 12 of the Principal Act allows the making of a Proclamation, not inconsistent with the 1958 Convention on the Continental Shelf, setting the limits of the whole or any part of Australia's continental shelf. Clause 11 will require that such proclamations be not inconsistent with Article 76 of the Convention rather than the 1958 Convention on the Continental Shelf. A brief outline of Article 76 of the Convention, which provides a definition of the continental shelf, is contained in the 'Background' to this Digest.

New sections 13A-13C, dealing with the contiguous zone, will be inserted into the Principal Act by clause 12. Proposed section 13A declares that Australia has a contiguous zone. Proposed section 13B allows the making of a Proclamation, not inconsistent with Article 33 of the Convention or any relevant international agreement to which Australia is a party, setting the limits of the whole or any part of Australia's contiguous zone.

Schedules 1 and 2 of the Principal Act, which contain the texts of the 1958 Convention on the Territorial Sea and the Contiguous Zone and the Convention on the Continental Shelf, will be repealed by clause 13. These are substituted by the Schedule set out in Schedule 2 of this Bill which contains the text of Parts II, V and VI of the Convention.

Endnotes

1. United Nations Information Document, 'Introduction and Highlights', 17 May 1982.

2. Article 136 - Law of the Sea Convention.

3. Phillip F. Sutherland, 'International Legal Note', The Australian Law Journal, Vol. 61, 1987, pp. 256-258.

Ian Ireland (Ph. 06 2772438)

Bills Digest Service 18 November 1993

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1993.

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Published by the Department of the Parliamentary Library, 1993.