|Title||QUESTIONS ON NOTICE
Elizabeth and Middleton Islands
|Questioner||Abetz, Sen Eric
|Responder||Wong, Sen Penny
|Stage||Elizabeth and Middleton Islands
|Context||Answers to Questions on Notice
Senator Abetz asked the Minister representing the Attorney-General, upon notice, on 7 April 2010:
With reference to the answer to question no. 69 taken on notice during the 2009â10 supplementary Budget estimates of the Legal and Constitutional Affairs Legislation Committee:
(1) Given that the question specifically asked âwhether the status of Elizabeth and Middleton Islands were âimportant for locating the boundary between the EEZ [Exclusive Economic Zone] and the ECS [extended continental shelf]ââ and that the âreply indicated that âMiddleton Island was used as a base point in the delimitation with France in relation to New Caledoniaââ: Can an answer to the original question asked be provided.
(2) Given that it was further advised that the boundary between the EEZ âand the extended continental shelf in any maritime area is the outer limit of the EEZ located 200 nautical miles from the territorial sea baseline. Base points on Elizabeth and Middleton Reefs are necessary to establishing the proclaimed outer limit of the EEZâ, does not answer the question, but would appear to confirm that in claiming an EEZ to 200 nautical miles, Australia regarded Elizabeth and Middleton Islands as islands in accordance with United Nations Convention on the Law of the Sea (UNCLOS) Articles 121(1) and (3) with their own continental shelf and EEZ, and if that is the case, can answers to the following be provided in a clear, concise and easy to understand language:
(a) have the Elizabeth and Middleton Islands achieved island status as defined by UNCLOS Article 121;
(b) have Middleton and Elizabeth Islands been used to claim an EEZ up to 200 nautical miles from the territorial sea baseline; if so, can a detailed explanation be provided of how the Commonwealth was able to prove that they are islands in accordance with UNCLOS Articles 121(1) and (3) thus removing any risk of future disputes and the circumstances under which each of these two features have satisfied the three requirements as required by that article;
(c) if Elizabeth and Middleton Islands were used to claim an ECS to 350 nautical miles, how was the Commonwealth able to prove that they are islands in accordance with UNCLOS Articles 121(1) and (3) thus removing any risk of future disputes and the circumstances under which each of these two features have satisfied the three requirements as required by that article;
(d) if Elizabeth and Middleton Islands were not used to claim an ECS to 350Â nautical miles, why would Australia use them to claim an ECS to 200 nautical miles and not to 350 nautical miles e.g. such a claim might have created a conflict with the French boundary, or Australia could not prove that Elizabeth and Middleton were islands with economic life in accordance with UNCLOS Articles 121(1) and (3);
(e) if Elizabeth and Middleton Islands were not used to claim an ECS to 350 nautical miles, what other structure or island was used and on what basis was this possible under international law;
(f) if Elizabeth and Middleton Islands are regarded as islands in accordance with UNCLOS Articles 121(1) and (3), why were they not named and/or otherwise identified on any map or chart forming part of Australiaâs submission to the UNCLOS; and
(g) is it true that an EEZ is of more value to a sovereign state than an ECS because of the operation of UNCLOS Article 82 which is an obligation on the sovereign state to pay royalties on any commercial exploitation within the ECS.
Senator Wong (Minister for Climate Change, Energy Efficiency and Water) âThe Attorney-General has provided the following answer to the honourable senatorâs question:
(1) The answer given to question no. 69 did answer the question.Â That answer stated:Â âThe boundary between the exclusive economic zone (EEZ) and the extended continental shelf in any maritime area is the outer limit of the EEZ located 200Â nautical miles from the territorial sea baseline.Â Base points on Elizabeth and Middleton Reefs are necessary to establishing the proclaimed outer limit of the EEZâ.
(b) Yes.Â It follows that Australia regards them as meeting the requirements of Article 121(1) and (3) of UNCLOS.Â It would not be appropriate to give legal advice on the application of those Articles.
(c) The outer limit of the extended continental shelf in the Lord Howe Rise region is not dependent on base points on Elizabeth and Middleton Reefs.
(d) The premise of the question is wrong in so far as it refers to a claim to an extended continental shelf to 200Â nautical miles.Â An extended continental shelf (ECS) by definition is an area of continental shelf that is beyond 200 nautical miles from the territorial sea baseline.Â That said, it is necessary to use Elizabeth and Middleton Reefs to claim an exclusive economic zone (EEZ) the outer limit of which is 200 nautical miles distant from the base points located upon them.Â However, Elizabeth and Middleton Reefs are not relevant to the location of the outer edge of Australiaâs continental margin in the Lord Howe Rise region.
(e) In its public summary of the recommendations on the Australian submission to the Commission on the Limits of the Continental Shelf, the Commission explicitly stated the basis of Australiaâs entitlement to an ECS in the Lord Howe Rise region as follows: â69.Â The Commission recognises that the continental margins, as established for the purposes of the Convention, of the landmasses of the Lord Howe Island and the Norfolk Island in the New Caledonia Basin overlap completely with each other and with the treaty lines with France in the north and New Zealand in the south, so that the continental shelf will cover the entire area outside 200 M on the Australian side of the treaty lines in this area.Â The Commission recommends that Australia proceeds to establish the limits of the continental shelf around the Caledonian Basin accordinglyâ. Therefore, Australiaâs extended continental shelf does not depend on the existence of Elizabeth and Middleton Reefs for its validity.
(f) Elizabeth and Middleton Reefs are clearly shown on the Executive Summary maps and within the main body of Australiaâs submission.Â However, like many other features on the maps, including some islands, they are not labelled.
(g) Assuming that there were resources in an area of EEZ and in an area of ECS of precisely the same value the answer is âyesâ.