Pergamon Marine Policy, Vol. 20, No. 3, pp. 223-227, 1996

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LOSC, offshore resources and Australian marine policy

Nathan Evans

The approach taken by Australia to the Law of the Sea Convention coming into force has been to implement those Arti- cles related to the exploitation of EEZ resources. A Senate committee has be- gun a high-level inquiry in response to this limited implementation of LOSC. The inquiry signals to the government that its approach towards LOSC is un- acceptable, and provides the opportun- ity to establish a comprehensive oceans policy regime. Copyright © 1996 Elsevier Science Ltd

Nathan Evans is an Associate Lecturer in Environmental Policy and Law with the Murdoch University, Murdoch W.A. 6150, Australia. Tel: (619) 360 6078. Fax: (619) 310 4997. E-maih evans@essunl .murdoch. edu.au

1A. Bergin, 'Australia Extends Territorial Sea to 12 Nautical Miles', International Journal of Estuarine and Coastal Law, Vol 6, 1991, pp 127-132. 2Convention on the Territorial Sea and the Contiguous Zone; Convention on the Con- tinental shelf. 30. Johnston, 'Vulnerable Coastal and Marine Areas: A Framework for the Plan- ning of Environmental Security Zones in the Ocean', Ocean Development and In- ternational Law, Vol 24, 1993, pp 63-79.

The Law of the Sea Convention (LOSC) has recently come into force after being opened for signature at the end of 1982. The Commonwealth-- the Federal Government of Australia---enacted the Maritime Legislation Amendment Act in 1994 to incorporate the major features of LOSC into Australian domestic law in sympathy with the Convention coming into force globally. Australia has generally shown little interest in legis- lative marine policy, though, despite being both a maritime nation with seafaring interests and also a coastal State with potential claims over vast offshore areas. Assertions of jurisdiction have been modest and limited in geographical scope. Australia was one of the last nations to move to a 12-mile territorial sea, for example, only doing so in 1990.1 It is no surprise, then, that no Commonweal th agency has been nominated to lead the development of marine policy under the broad LOSC umbrella. Nor does the Maritime Legislation Amendment Act propose changes to domestic jurisdictional arrangements to further the partici- pation by states in offshore decision making. Nonetheless, the sum of Commonweal th legislative activity inspired by the LOS Convention coming into force is beginning to resemble a coherent policy for the development of ocean resources.

The Maritime Legislation Amendment Act has established a 200 mile exclusive economic zone around Australia by amending the extant Seas and Submerged Lands Act 1973, the statute in which offshore jurisdic- tion is sourced. Those Parts of LOSC relating to the EEZ , territorial sea and continental shelf have been scheduled in full to the Seas and Submerged Lands Act, replacing references to the Conventions dealing with offshore jurisdiction signed at UNCLOS I in 1958. 2 The practical effect of these amendments has been to greatly expand Australia's control over marine resources. Jurisdictional claims over offshore areas also bring attendant stewardship responsibilities; indeed, twenty per- cent of the treaty text is devoted to environmental matters. 3 Environ- mental outcomes are expressed weakly in the Convention itself, though, and effective controls depend mainly upon coastal State priorities. In Australia's case, considerable attention has been given to the develop- ment of offshore resources regimes, especially as these address Federal/

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State jurisdictional issues. Little thought has gone into either the scientific research needed to sustain these resources regimes, or the environmental impacts of resource exploitation. The Commonwealth has neglected these broader obligations, while being quick to pursue a policy of maximizing the resource exploitation opportunities available under extended offshore regimes. A number of factors lead to this conclusion.

4Article 76 of the LOS Convention expli- cates distance and depth criteria upon which coastal States may make delinea- tions of continental shelf areas. Maximally, these are 350 miles distant from the base- line or 100 miles from the 2500 metre isobath. SR.D. Lumb, 'Australian Coastal Jurisdic- tion', in K.W. Ryan, ed, International Law in Australia, 2nd edn, Sydney, The Law Book Co., 1984, pp 370-389. SLaw of the Sea Convention (1982) Article 82. 7R. Hildreth, 'Managing Ocean Resources: New Zealand and Australia', International Journal of Estuarine and Coastal Law, Vol 6, 1991, pp 89-126. 8A. Bergin, 'Australia Adopts New Maritime Zones', International Journal of Estuarine and Coastal Law, Vol 7, 1992, pp 123- 128. 9R.J. Wilder, 'Cooperative Governance, Environmental Policy, and Management of Offshore Oil and Gas in the United States', Ocean Development and International Law, Vol 24, 1993, pp 41-62.

Marine resources policy

At the time that Australia's EEZ came into effect the continental shelf off north-western Australia was extended seaward a considerable distance beyond 200 miles pursuant to Article 76 of LOSC. 4 This development, achieved through an amendment to the Petroleum (Sub- merged Lands) Act 1967, went unnoticed amongst the attention that accompanied the proclamation of the EEZ. Under the rubric of the earlier Convention on the Continental Shelf, minerals regimes were defined according to a depth and an exploitability criterion. The choice of criteria was intended to compensate coastal States with narrow continental shelves, rather than being designed to be ambulatory over time. These criteria have been abused by some coastal States, however, as the development of technologies to exploit deep seabed resources has enabled legal shelf areas to be pushed further seaward based upon the exploitability criterion. 5 Australia has acceded to the tighter legal definitions of the LOS Convention and thereby put itself above re- proach in this regard. The Convention does make provision for coastal States to exploit resources on shelf areas beyond their 200 mile EEZs. 6 A royalty is payable to the International Seabed Authority in respect of such exploitation, however--a requirement opposed by Australia at UNCLOS---explaining in part Australia's delay in adopting the LOSC definitions until the treaty entered into force. 7 Although the petroleum potential of the wide continental shelf and deep seabed is unknown, expected earnings from activity in this area will absorb the additional royalty cost. 8

The approach to offshore petroleum development has been applied to offshore mining as part of the Commonwealth's package response to LOSC. The recently enacted Offshore Minerals Act 1994 establishes a mining regime parallel and similar to that which exists under the Petroleum (Submerged Lands) Act. The Offshore Minerals Act defines the continental shelf by reference to the petroleum legislation, a tactic designed to ensure consistency between regimes in terms of legal definitions and geophysical areas. The Offshore Minerals Act therefore applies to the same expanded continental shelf area claimed by Austra- lia for the purposes of petroleum development. The Joint Authority structure of the Petroleum (Submerged Lands) Act is also adopted by the minerals statute, an arrangement which enables states to exercise decision-making powers jointly with the Commonwealth in federal waters beyond the 3-mile state limit. The adoption by the Offshore Minerals Act of this same approach confirms the success of joint decision making at avoiding Federal/State resource disputes, the like of which cripple offshore oil development in the west coast US. 9

Changes to the fisheries sector have also been instituted as a result of LOSC entering into force. The implementation of LOSC provisions relevant to fisheries has been selective, though, as is true of Australian

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I°R.A. Herr and B.W.Davis, 'The impact of UNCLOS 3 on Australian Federalism', In- ternational Journal, Vol 41, 1986, pp 674- 693. l~Fisheries Management Act 1991 (Cth) s 4(1). ~aD.R. Rothwell, 'Australia and the United Nations Convention on the Law of the Sea', International Law News, 1994, pp 24, 30-35. ~aB.R. Opeskin and D.R. Rothwell, 'Aus- tralia's Territorial Sea: International and Federal Implications of its Extension to 12 Miles', Ocean Development and Interna- tional Law, Vol 22, 1991, pp 395-343. ~4Australian Law in Antarctica (1992) House of Representatives Standing Com- mittee on Legal and Constitutional Affairs. Australian Government Publishing Ser- vice. 15D. Attard, The Exclusive Economic Zone in International Law, London, Oxford, 1987. 16Rothwell, op cit, Ref 12, p 33.

LOSC and Australian marine policy: N Evans

marine policy generally. During the period leading up to LOSC being opened for signature in 1982, a number of countries were claiming 200-mile EEZs. The Commonwealth at that time proclaimed the Australian Fishing Zone (AFZ), an offshore regime limited in both substance and area compared with the EEZ regime. Even then, the AFZ proclamation was done at the behest of Australia's Pacific neighbours, who were concerned that a unified approach to LOSC policy was needed to progress regional maritime concerns.l° It is only now that the Convention is in force that the Commonwealth has moved to the full EEZ regime. The existing AFZ regime has been retained, however, being redefined under the Fisheries Management Act 1991 as "the waters adjacent to Australia within the outer limits of the exclusive economic zone". 11 Rather than simply replace the AFZ with the EEZ, the reason for the Commonwealth to take this approach is presumably to allow for separate legislation to govern fishing and mining activities in the EEZ, an approach that is certain to confuse.12

Australian fisheries are managed under an elaborate regime of definitions, proclamations and exceptions pertaining to the AFZ. The regime created under the earlier Fisheries Act 1952 proved so compli- cated to administer, in fact, that Australian waters were accidentally removed from Australian jurisdiction during the declaration and pro- clamation of AFZ waters. 13 The Fisheries Management Act 1991 has simplified the AFZ regime to an extent by removing the need for waters to first be proclaimed before coming within the purview of the Act. Retained, though, is the power to variously apply the provisions of the Act, particularly as these relate to foreign fishing and Australia's external territories, aspects of fisheries policy where the Common- wealth is reluctant to act assertively. For example, although the Fisheries Management Act applies to Australian territories the EEZ adjacent to the Australian Antarctic Territory has been excepted from the application of Act, thereby exempting foreign fishing in these waters from Australian regulation. 14 Similarly, although adopting the EEZ definition the Fisheries Management Act has not been amended to implement in Australia the Convention's EEZ fishing provisions, which are acknowledged as a well-combined package reflecting the significant proposals presented at UNCLOS. 15 In its haste to ratify the Convention Australia's implementation of the necessary Articles is incomplete. "This is particularly the case for the EEZ where the emphasis has been to deal only with fishery management and is reflected in the somewhat simplistic approach taken in amendments to the Fisheries Management Act." 16

Scientific research and the environment

The Commonwealth's efforts to update its offshore resources regimes are complemented by attention being given to marine scientific re- search. Following LOSC's entry into force the Commonwealth estab- lished the Australian Marine Industries and Sciences Council (AMISC) to provide advice on the development of Australia's EEZ resources. LOSC provides coastal States with broad powers for exerting control over the conduct of marine scientific research within adjacent EEZs. Two provisions of particular importance require the consent of coastal States to be obtained before research is undertaken in the territorial sea and EEZ, and for the findings of such research to be available to the

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17Law of the Sea Convention (1982) Arti- cles 245, 246 and 249, respectively. 18Review of Marine Research Organiza- tion (1993) Commonwealth Government Printer. 19op cit, Ref 18, p 16. 2°Oceans of Wealth? (1989) Australian Government Publishing Service. 21Protection of the Sea (Prevention of Pollution from Ships) Act 1983. 22Articles 207-212 deal with, respectively, pollution caused from land-based sources, sea-bed activities, deep sea-bed mining, dumping, vessels, and the atmosphere. 23Transport and Communications Legisla- tion Amendment Act 1994.

coastal State. 17 The Commonwealth has neglected to incorporate these provisions of LOSC into domestic law, however, despite being keen to adopt other provisions of the EEZ.

Two limitations arising from this oversight come to mind. One is that the Commonwealth is able to place few constraints upon the conduct of research activities by foreigners, particularly research being carried out beyond the territorial sea. At the present level of activity there is little concern with research-related impacts, but as efforts turn increasingly to the exploitation of marine resources, the scope for degradation and even the foreclosure of future options arises. The second concern is that in the absence of any encompassing legal regime, researchers are under no obligation to share with Australia the findings of their research. Australia's research infrastructure is poorly organized to redress the deficiencies in marine scientific knowledge. The recent Review of Marine Research Organisation ~s recognized that relatively little was known about the Australian EEZ, especially in light of the imperative to exploit resources in a sustainable manner. The Review concluded that, "There is some agency-specific priority setting and sector-specific coordination, but at the national level there is a disturbing lack of these mechanisms and a complete absence of a national policy for marine science and technology. ''19

The establishment of AMISC shows clearly the Commonwealth 's desire to ensure that development options offshore are identified and pursued. As a body concerned primarily with coordination and advice rather than undertaking scientific research, its contribution towards filling the knowledge gap is minimal. Moreover, the Commonwealth 's marine research and industries policy, spawned by the Oceans of Wealth? report, 2° is to foster the sectoral development of industries rather than to contemplate the more difficult task of devising a comprehensive oceans policy. The Commonwealth shows no sign of departing from this policy approach despite LOSC now being in force. Australian marine science will likely continue to be an accumulation of sectoral decisions made in the absence of legislative support or without dedicated policy direction.

The Commonwealth 's approach to LOSC is evident also in the policy area of the environment. Prior to the Convention entering into force Commonwealth jurisdiction over foreign vessels was limited to the enforcement of M A R P O L pollution provisions within the territorial sea. The Commonwealth has since legislated to expand its enforcement powers with respect to vessel-source pollution throughout the EE Z , consistent with Article 220 of the Convention. el

Part XII of the Convent ion--Protect ion and Preservation of the Marine Environment- - imposes upon coastal States the obligation to take action with respect to six areas of marine pollution. 22 These more complex aspects of pollution policy--such as atmospheric deposition and land-based sources--have so far not received legislative attention in Australia. The legislation giving effect to Article 220 eschewed refer- ences to the Law of the Sea Convention, and was also enacted quite separately to E E Z legislation. 23 In contrast, the Maritime Legislation Amendment Act reproduced verbatim lengthy parts of the treaty text and was clearly framed to implement the Convention. Notwithstanding the Commonwealth 's desires to secure adequate powers over vessel- source pollution, Australia appears to be very cautious about incurring the wide environmental obligations of LOSC.

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24Senate Environment, Recreation, Com- munications and the Arts References Committee 'Marine Pollution Inquiry', Han- sard, Senate 26 June 1995.

LOSC and Australian marine policy: N Evans

Marine pollution inquiry A high-level Parliamentary committee was recently established in response to the Commonwealth 's partial implementation of LOSC. 24 The Senate References Committee is conducting an inquiry into marine pollution according to four Terms of Reference:

• the adequacy of existing Commonwealth, State and Territory legisla- tion to give effect to Australia's obligations under the United Nations Convention on the Law of the Sea, and other international treaties, to address land-based and ship-sourced marine pollution and its effects;

• administrative arrangements required to better conserve the marine and coastal environment, including consideration of an oceans man- agement policy and its implementation and the scientific research needed to achieve this;

• impact of pollution on water and sediment quality, marine biodiver- sity, and commercial and recreational users; and

• ways of maximizing local community involvement in all aspects of the assessment and management of marine and coastal pollution.

Whilst concerned primarily with marine environmental protection with- in the LOSC framework, the Inquiry's Terms of Reference extend explicitly to the consideration of a national oceans policy. Setting aside the challenging analytic task of detailing such a policy, doubts persist as to the Commonwealth 's commitment to a cross-sectoral approach to ocean planning and management. Australia's legislative record in the area of marine policy is not impressive, and the Commonwealth's initial response to the Convention entering into force has been to take advantage of the resource exploitation benefits accruing to coastal States. Considerable scope remains for further action to be taken--both executive and legislative--to implement the letter and the spirit of the Convention. Over the course of its one-year life it is hoped that the Senate Inquiry will generate the political will needed to support a comprehensive oceans policy.

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