Australia's Extended Continental Shelf: What Implications for Antarctica? (Working Paper) more

AUSTRALIA’S EXTENDED CONTINENTAL SHELF: WHAT IMPLICATIONS FOR ANTARCTICA? Dr Alan D Hemmings and Dr Tim Stephens* INTRODUCTION In April 2008 the Federal Minister for Resources and Energy announced that the United Nations Commission on the Limits of the Continental Shelf (CLCS) had recognised the vast bulk of Australia’s claim to an Extended Continental Shelf (ECS)1 (see Figure 1, below). Minister Ferguson noted that this represented “a major boost to Australia’s offshore potential and also to [Australia’s] ability to preserve the marine environment on the seabed.”2 The Commonwealth is expected to endorse the CLCS recommendations by proclaiming new outer limits of Australia’s continental shelf in the near future.3 Remarkably, around half of the Australian ECS as approved by the CLCS is in the Southern Ocean in the Antarctic (i.e. south of 60°S). This Antarctic ECS does not include the ECS offshore the Australian Antarctic Territory (AAT), which Australia requested the CLCS not to consider for the time being. Rather it is made up of two large ECS areas projected southwards into the Antarctic Treaty Area (ATA)4 from Australia’s small sub-Antarctic islands, Heard and McDonald Islands (HIMI) and Macquarie Island. This comment considers how Australia should manage this sizeable new area of Antarctic seabed estate within the letter and spirit of the Antarctic Treaty System (ATS),5 particularly in relation to prospecting for potentially valuable biological resources on the seabed.6 























































 * Alan Hemmings is a Senior Fellow at Gateway Antarctica Centre for Antarctic Studies and Research, University of Canterbury, New Zealand. Tim Stephens is a Senior Lecturer at the Faculty of Law, University of Sydney. The authors acknowledge valuable comments on earlier versions of this article by Don Rothwell, Gillian Triggs and Andrew Serdy, but any and all errors are our own. 1 The Hon Martin Ferguson, Minister for Resources and Energy, Media Release, 21 April 2008 (http://minister.ret.gov.au/TheHonMartinFergusonMP/Pages/UNCONFIRMSAUSTRALIA%E2%80% 99SRIGHTSOVEREXTRA.aspx) (viewed 22 August 2008)). See Commission on the Limits of the Continental Shelf, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submissions Made by Australia on 15 November 1994 (http://www.un.org/Depts/los/clcs_new/submissions_files/aus04/aus_summary_of_recommendations.p df) (viewed 14 October 2008). 2 Ibid. 3 The proclamation will be made under the Seas and Submerged Lands Act 1973 (Cth), s 12. 4 The ATA is that area “south of 60° South Latitude, including all ice shelves”: 1959 Antarctic Treaty [1961] ATS 12, art VI. 5 The Antarctic Treaty System comprises the 1959 Antarctic Treaty [1961] ATS 12, subsequent instruments built upon the treaty including the 1972 Convention for the Conservation of Antarctic Seals [1987] ATS 11, 1980 Convention for the Conservation of Antarctic Marine Living Resources [1982] ATS 9, and 1991 Protocol on Environmental Protection to the Antarctic Treaty [1998] ATS 6. 6 See generally Vigni, P, “Antarctic Bioprospecting: Is it Compatible with the Value of Antarctica as a Natural Reserve” in Francioni, F and Scovazzi, T (eds), Biotechnology and International Law (Hart, 2006) 111. 
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 Figure 1. Australia’s Continental Shelf as Confirmed by the Commission on the Limits of the Continental Shelf. Reproduced with the permission of Geoscience Australia. AUSTRALIA’S EXTENDED CONTINENTAL SHELF IN THE SOUTHERN OCEAN Under the United Nations Convention on the Law of the Sea (LOS Convention)7 coastal states enjoy a 200 nm continental shelf and may be able to claim an ECS if the continental margin extends beyond 200nm.8 To claim an ECS states must file a submission with the CLCS, a technical body charged with assessing submissions making recommendations as to ECS limits. Coastal states are required to establish the limits of their shelves on the basis of these final and binding recommendations.9 























































 7 8 1982 United Nations Convention on the Law of the Sea [1994] ATS 31. 1982 United Nations Convention on the Law of the Sea [1994] ATS 31, art 76(1). 9 1982 United Nations Convention on the Law of the Sea [1994] ATS 31, art 76(8). 
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 In November 2004 Australia lodged its submission with the CLCS,10 one day within the ten-year time limit,11 and 41 months later the CLCS handed down its recommendations in which it accepted around 90 per cent of the Australian ECS claim, recommending that Australia is entitled to an additional 2.5 million km2 of continental shelf (an area the size of Western Australia)12. Of the 11 states to make CLCS submissions, Australia has earned particular notoriety for including data for waters south of 60°S, that is within the ATA. In this respect it is important to separate the two distinct components of Australia’s Antarctic ECS claims: (1) a potential ECS appurtenant to the Australian Antarctic Territory (AAT), and (2) an ECS from HIMI, which lie around 4,000 km south-west of Perth, and Macquarie Island, about 1,500 km south-south-east of Hobart. The Australian Antarctic Territory Australia is one of seven claimants to territory in Antarctica (the others being Argentina, Chile, France, New Zealand, Norway and the United Kingdom). Since the AAT was established in 1933,13 Australia has declared progressively wider maritime zones in line with developments in the law of the sea and these include a 12nm territorial sea and a 200 nm exclusive economic zone (EEZ) and continental shelf. Although in its submission to the CLCS Australia included data for the AAT ECS, the CLCS did not consider this information because Australia requested the CLCS “not to take any action for the time being with regard to the information…that relates to the continental shelf appurtenant to Antarctica”.14 This entreaty was made in recognition that the CLCS is prevented by its rules from making recommendations in situations where a land or maritime dispute exists, except with the consent of all parties involved.15 There is a live dispute over Australia’s entitlement to the AAT ECS as only four states (France, New Zealand, Norway and the United Kingdom), all of whom are also claimants, recognise the AAT. Most states instead point to Article IV of the Antarctic Treaty16 and maintain that the Antarctic is 























































 10 Commonwealth of Australia, Submission to the Commission on the Limits of the Continental Shelf on the Outer Limits of Australia’s Continental Shelf Extending Beyond 200 Nautical Miles from the Territorial Sea Baseline: Executive Summary (Australian Government, 2004) (http://www.un.org/depts/los/clcs_new/submissions_files/aus04/Documents/aus_doc_es_web_delivery. pdf) (viewed 26 August 2008). 11 1982 United Nations Convention on the Law of the Sea [1994] ATS 31, Annex II, art 4. 12 Ferguson, n 1; Commission on the Limits of the Continental Shelf, n 1. See also Coorey, Phillip, “Australia Gets Bigger and Richer”, The Sydney Morning Herald, 22 April 2008. 13 Australian Antarctic Territory Acceptance Act 1933 (Cth). 14 Commonwealth of Australia, Note to the United Nations Secretary-General, 15 November 2004 (http://www.un.org/depts/los/clcs_new/submissions_files/aus04/Documents/aus_doc_es_attachment.pd f) (viewed 26 August 2008). 15 Rules of Procedure of the Commission on the Limits of the Continental Shelf, UN Doc CLCS/40/Rev.1 (2008), Annex I, Rule 5(a). 16 1959 Antarctic Treaty [1961] ATS 12, art IV which provides that “1. Nothing contained in the present Treaty shall be interpreted as: (a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; (b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise; (c) prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State's right of or claim or basis of claim to territorial sovereignty in Antarctica. 2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new 
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 a commons area over which no territorial sovereignty may be asserted and no maritime zones claimed. Indeed the mere inclusion of AAT ECS data provoked a strong diplomatic response from six fellow Antarctic Treaty Consultative Parties (Germany, India, Japan, Netherlands, the Russian Federation and the United States) along these lines. The United States response was typical in stating that it “does not recognize any State’s claim to territory in Antarctica”, or to “the seabed and subsoil of the submarine areas beyond and adjacent to the continent of Antarctica.”17 No Antarctic claimant has, as yet, recognised Australia’s entitlement to an ECS from the AAT. France was the only claimant to respond to the Australian submission, and made no reference to the AAT ECS even though the French claim in Antarctica is sandwiched between the two sectors of the AAT.18 Both New Zealand and the United Kingdom, while not commenting on the AAT ECS, have nonetheless affirmed the legitimacy of the procedural strategy adopted by Australia in their own submissions to the CLCS, as they have sought to keep open the option of submitting Antarctic ECS data.19 Unlike Australia, however, they have not taken the provocative step of including Antarctic ECS data in their submissions to the CLCS. Australia’s claim to an AAT continental shelf dates from 1953, before the Antarctic Treaty. For this reason it can be argued that an AAT ECS would not be a new claim or enlargement of an existing claim, but simply an additional area of shelf accruing by virtue of developments in the law of the sea.20 However, the procedure set down by Article 76 of the LOS Convention appears to prevent any definitive resolution of the AAT ECS for the time being. Unless and until the CLCS addresses the matter Australia cannot establish limits by reference to recommendations of the CLCS and any limits set unilaterally are unlikely to be recognised, and could even be challenged under the compulsory dispute settlement provisions of the LOS Convention.21 The Australian ECS submission has tested the waters in the potentially fraught interaction between the ATS and LOS Convention regimes. Other Antarctic claimant states also need to consider these issues, given that they are parties to the LOS Convention and in most places the Antarctic shelf extends beyond 200nm. However 






























































































































































 claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.” 17 United States, Diplomatic Note to the United Nations Secretary-General, 3 December 2004 (http://www.un.org/depts/los/clcs_new/submissions_files/aus04/clcs_03_2004_los_usatext.pdf (viewed 26 August 2008). 18 Republic of France, Diplomatic Note to the United Nations Secretariat, 28 March 2005 (http://www.un.org/depts/los/clcs_new/submissions_files/aus04/clcs_03_2004_los_fra_en.pdf (viewed 26 August 2008). 19 New Zealand, Note to the United Nations Secretary General Accompanying the Lodgement of New Zealand's Submission, 19 April 2006 (http://www.un.org/depts/los/clcs_new/submissions_files/nzl06/nzl_doc_es_attachment.pdf) (viewed 26 August 2008); United Kingdom, Note to the United Nations Secretary-General Accompanying the United Kingdom’s Lodgement of the Partial Submission, 9 May 2008 (http://www.un.org/depts/los/clcs_new/submissions_files/gbr08/gbr_nv_9may2008.pdf) (viewed 26 August 2008). 20 Australian Government, “Australia, Antarctica and the Law of the Sea: Defining the limits of the Continental Shelf”, Fact Sheet prepared by the Antarctic Treaty and Government Section, Australian Antarctic Division, December 1999 (on file with authors). See also the Hon Alexander Downer and Hon Robert Hill, Joint Media Release, 2 December 1999 (http://www.foreignminister.gov.au/releases/1999/fa132b_99.html) (accessed 1 September 2008). 21 Kaye, S B and Rothwell, D R, “Southern Ocean Boundaries and Maritime Claims: Another Antarctic Challenge for the Law of the Sea?” (2002) 33 Ocean Development and International Law 359, 369. 
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 any move actively to claim an ECS would be highly problematic for the ATS, notwithstanding legal arguments that can be marshalled to defend such an action. In the worst-case scenario such open assertions of sovereignty, in the context of rising global demand for natural resources, could catalyse a breakdown of the ATS consensus to put questions of territorial entitlement on hold so as to maintain the Antarctic as a non-appropriable domain of peaceful coexistence, scientific exploration and environmental protection. Australia’s Sub-Antarctic Islands The other component of the Australian submission to the CLCS to raise Antarctic sensitivities stems from the claims to an ECS from Australia’s sub-Antarctic island possessions, HIMI and Macquarie Island, located at approximately 53°S and 55°S respectively. Neither Australian sovereignty over these islands, nor claims to adjacent EEZ and continental shelf areas of 200 nm, has been seriously contested.22 It is also generally thought that the zones are consistent with the ATS and Australia actively polices fisheries regulations in the EEZs of these islands even though one (HIMI) is within the area of operation of the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).23 CCAMLR Article IV(2)(b) appears to permit this assertion and enforcement of jurisdiction in providing that CCAMLR is not “a renunciation or diminution by any Contracting Party of, or as prejudicing, any right or claim or basis of claim to exercise coastal state jurisdiction under international law within the area to which this Convention applies.” The situation as regards the HIMI continental shelf is more complicated because the ECS extends not just into the CCAMLR area but also into the ATA. While the Macquarie Island ECS is relatively small (at 81,719 km2) and barely enters the ATA, HIMI ECS is expansive. At 1,185,038 km2 it is the single largest area of the Australian ECS, and protrudes south to the 200 nm AAT continental shelf on an expansive underwater feature known as the Central Kerguelen Plateau. The Australian Government has acted on the assumption that as with the 200 nm continental shelf and EEZ claims made from HIMI and Macquarie Island, the HIMI ECS claim is a valid maritime claim for which allowance is made within the ATS. Several provisions in Antarctic instruments can be marshalled in support of this position, the most significant being CCAMLR, Article IV, described above, which affirms Article IV of the Antarctic Treaty, which suspends discussion over sovereignty in the ATA, while at the same time recognising the rights of coastal states such as Australia to exercise coastal state jurisdiction. Also salient here is the Convention of the Regulation of Antarctic Mineral Resource Activities (CRAMRA) which would have established an internationalised regime for mining in Antarctica. The conclusion of the 1991 Protocol on Environmental Protection to the Antarctic 























































 22 But see Volga Case (Russian Federation v Australia) (2003) 42 International Legal Materials 159 per Vukas J at 178-182 who referred to 1982 United Nations Convention on the Law of the Sea [1994] ATS 31, art 121(3) which provides that “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”. 23 1980 Convention on the Conservation of Antarctic Marine Living Resources [1982] ATS 9, Art 1. CCAMLR which applies not only south of 60°S but also further north to the Antarctic Convergence where cold Antarctic water and warmer subantarctic water meet. Macquarie Island lies just north of the CCAMLR Area. 
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 Treaty (Madrid Protocol)24 which prohibits mining in Antarctica meant that CRAMRA would not enter into force. None the less the negotiation of CRAMRA provided an opportunity for states to consider the position of maritime zones from sub-Antarctic islands. In this respect the Final Act made clear that the continental shelves from such islands would not be embraced by the regime: “the area of regulation of Antarctic mineral resource activities [encompassed by the convention] does not extend to any continental shelf appurtenant in accordance with international law to islands situated north of 60°S”. In making the recommendations it did the CLCS was clearly comfortable that questions concerning sovereignty over HIMI and Macquarie and adjacent maritime zones are settled. There were certainly no state protests in response to this aspect of the Australian submission to suggest otherwise. This outcome confirms that while the meaning of “dispute” is defined broadly in international law,25 CLCS as a technical committee is likely only to recognise a dispute if it is specifically raised by a submitting or other state, or is impossible to ignore, as in the case of the ECS from the Antarctic itself.26 RECONCILING AUSTRALIA’S ANTARCTIC ECS WITH THE ANTARCTIC TREATY SYSTEM Despite the imprimatur given by the CLCS, Australia’s ECS claims from its subAntarctic islands raise two significant issues. Delimitation of Overlapping Antarctic ECS Areas The first is that the HIMI ECS will need to be delimited where it overlaps with the AAT continental shelf. Kaye has noted that given the oil and other resources on the Kerguelen Plateau it would be attractive to apportion the greatest possible shelf to HIMI,27 although this would have the “disadvantage of weakening Australia’s Antarctic claim.”28 In an apparent attempt to reinforce Australia’s AAT claim the Australian submission resolved the question so that the overlap was included in the AAT ECS rather than the HIMI ECS.29 Significantly, however, the CLCS steered clear of the issue altogether, and refrained from making any recommendations regarding the eastern and western points of the HIMI ECS which intersected with the 200 m line from the AAT territorial sea baseline.30 It therefore remains to be seen whether the Australian Government will, in the absence of a recommendation from the CLCS, proclaim the limits of the HIMI ECS all the way down to the 200nm line from the AAT. Resource Issues 























































 24 25 1991 Protocol on Environmental Protection to the Antarctic Treaty [1998] ATS 6. See the East Timor Case [1995] ICJ Rep 90, 99. 26 Rothwell, D R, “Issues and Strategies for Outer Continental Shelf Claims” (2008) 23 International Journal of Marine and Coastal Law 185, 190. 27 Kaye, S, Australia’s Maritime Boundaries (Centre for Maritime Policy, University of Wollongong, 1995) 209. 28 Ibid. 29 Commonwealth of Australia, n 10, 20. 30 Commission on the Limits of the Continental Shelf, n 1, [53]. 
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 The second issue raised by Australia’s ECS claims from sub-Antarctic islands is how it is to be managed in a way that is consistent with the ATS. Under Article 77 of the LOS Convention Australia is conferred exclusive sovereign rights for the purposes of exploring and exploiting the living and non-living resources of the continental shelf, including the ECS. Through the CLCS process Australia has asserted these rights to their full extent, leaving open the possibility of resource extraction some time in the future.31 On the other hand Australia is an original signatory to the Antarctic Treaty, has been a major player in subsequent ATS development, and remains a vocal supporter of the ATS. The delicate balance between coastal state rights and membership of the ATS is threatened by lingering uncertainty as to where Australia stands on the AAT ECS. And it is directly challenged by the HIMI ECS because it effectively subtracts ocean space and resources within the ATA from the Antarctic collective governance system. In this respect Australia is seeking to ‘square a circle’ in its paradoxical position of supporting a regime that contains nationalism in Antarctica, whilst benefiting from another regime that reinforces nationalism. This paradox will only become more visible as pressure builds for the mineral and biological resources of the HIMI ECS and AAT ECS to be explored and exploited. At least as regards mining for mineral resources such as metals and hydrocarbons the policy of the government is clearly consistent with the ATS. Despite rash calls from some quarters to reconsider Australia’s anti-mining stance in relation to Antarctic,32 the Rudd Government has ruled out mining in the ECS within the ATA, and this would therefore include most of the HIMI ECS.33 Any shift from this policy would require the amendment or repeal of the Antarctic Treaty (Environment Protection) Act 1980 (Cth) (AT(EP) Act)34 that implements the blanket prohibition on mining in Antarctica imposed by Article 7 of the Madrid Protocol.35 The AT(EP) Act is clearly expressed to apply to the ATA,36 and would therefore apply to continental shelf areas south of 60° South Latitude.37 None the less, the very assertion of ECS in Antarctica raises concerns about the longterm commitment of Australia to the Madrid Protocol as claiming rights to a continental shelf is in essence a claim to resource rights, even if foresworn in the near-term. There is here a clear contrast between Australia’s current assertiveness in relation to Antarctic resource rights with its instrumental position two decades ago in pushing for the abandonment of CRAMRA and its substitution by the Madrid Protocol as the cornerstone of Antarctic environmental protection. 























































 31 32 1982 United Nations Convention on the Law of the Sea [1994] ATS 31, art 77(2). Such as that by National Party Senator Barnaby Joyce who in May 2006 called for Antarctica to be opened to sustainable mining: Darby, A, “All Eyes on the Last Wilderness” The Sydney Morning Herald, 17 July 2006. 33 See the remarks by Minister Ferguson reported in Coorey, n 12. 34 Antarctic Treaty (Environment Protection) Act 1980 (Cth), ss 19A and 19B. See also s 19AA which prohibits the taking of rocks without a permit. 35 Art 7 provides that “[a]ny activity relating to mineral resources, other than scientific research, shall be prohibited.” 36 AT(EP) Act, s 3(1). 37 See generally Blay, S and Green, J, “The Practicalities of Domestic Legislation to Prohibit Mining Activity in Antarctica: A Comment on the Australian Perspective” (1994) 30 Polar Record 23. 
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 While mining is presently only a theoretic possibility, a resource issue with near-term relevance is bioprospecting. As defined in regulations made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) bioprospecting “involves the taking of biological resources of native species for research and development on any genetic resources, or biochemical compounds, comprising or contained in the biological resources”.38 Given the remoteness of the Macquarie Island and HIMI ECS bioprospecting in these areas will not commence immediately. However it is certainly possible within the decade and, in contradistinction to mining, bioprospecting in Antarctica, including on continental shelf areas, is allowable subject to the grant of a permit by the Minister for the Environment.39 If Australia moves to allow bioprospecting this would be a further impediment to achieving a general ATS mediated agreement on bioprospecting across the ATA, whether that agreement meant a moratorium or, more likely, agreed standards for regulating authorised activity.40 If Australia believes that it alone may regulate bioprospecting in the Macquarie and HIMI ECS within the ATA, various scenarios present themselves. Where the entities seeking to conduct the activity are Australian, and in the absence of specific ATS regulation, the situation would be no more than an extension of the ATS status quo with parties entitled to exercise jurisdiction on a nationality basis.41 Where a nonAustralian entity approaches Australia for authorisation to bioprospect in the area we have a real operational conflict between the regional ATS and the global system of LOS Convention. To the extent that better regulation of bioprospecting is desirable it could be argued that here was a tangible benefit of state control. If, on the other hand, Australia effectively declines to authorise foreign entities (particularly if it is at the same time authorising Australian entities), new edge is given to the incipient problem of preferential access to parts of the ATA and this may not be geopolitically acceptable. More problematic still would be a scenario where a foreign entity decides not to seek Australian authorisation, or following denial proceeds anyway. This would raise the real possibility of interdiction at sea, seizure of vessels and crews, escort back to Australian ports and domestic legal action of the sort familiar in relation to illegal unreported and unregulated (IUU) fishing.42 However unlike IUU fishing where enforcement action has been taken outside the ATA, policing activities on the ECS within the ATA pose questions of compatibility with the demilitarisation obligations under the Antarctic Treaty, as well as substantial technical feasibility, maritime capacity and cost factors. 























































 38 39 Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), reg 8A.03(1). Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), pt 8A. 40 Hemmings, A D and Rogan-Finnemore, M “Access, obligations and benefits: Regulating Bioprospecting in the Antarctic” in Jeffery, M I; Firestone, J and Bubna-Litic, K (eds) Biodiversity Conservation, Law + Livelihoods: Bridging the North-South Divide (Cambridge University Press, 2008) 529, 547-9. 41 See generally Stephens, Tim and Boer, Ben, “Enforcement and Compliance in the Australian Antarctic Territory: Legal and Policy Dilemmas” in Julia Jabour and Lorne Kriwoken, Julia Jabour and Alan D Hemmings (eds), Looking South: Australia’s Antarctic Agenda (Federation Press, 2007) 54. 42 See Baird, R “Coastal State Fisheries Management: A Review of Australian Action in the Heard and McDonald Islands Australian Fishing Zones” (2004) 9 Deakin Law Review 91. 
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 CONCLUSION In acquiring new ocean space for resource exploitation Australia also assumes a responsibility to manage these areas consistent with principles of sustainable development to which it has been a longstanding adherent on the international plane. In the Antarctic context there is a further dimension to Australia’s international responsibilities as Australia is not simply a coastal state entitled to exercise the full range of coastal state rights under the LOS Convention. The ATS imposes upon Australia, and the other claimants with potential ECS in the ATA, legal and political constraints which cannot be ignored. Opening an area such as the HIMI ECS, which falls mostly within the ATA, to resource exploitation such as bioprospecting could undercut collective ATS responsibility for resource management, and would be a stimulant to new resource interest in the greater Antarctic area. It would reinforce the growing prominence of nationalist (including claimant) activity in the Antarctic, and in the worst-case scenario could destabilise the ATS regime. Given this, now that Australia has once again sought to confirm its sovereign rights within the ATA, it may be in Australia’s long-term interests to seek consensus on a moratorium on realising any resource rights on the ECS anywhere within the ATA for the lifetime of the ATS. 
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