The Hon. Alexander Downer, MP
The Hon. Alexander Downer, MP
 FORMER MINISTER FOR FOREIGN AFFAIRS, AUSTRALIA

Speech

Canberra, 16 November 2004

The United Nations Convention on the Law of the Sea: Ten Years of benefits for Australia

A Speech to a Symposium 'Strategic Directions for Australia and the Law of the Sea'

Ladies and Gentlemen

Welcome to today's symposium 'Strategic Directions for Australia and the Law of the Sea', which my Department is pleased to co-sponsor with the Sydney Centre for International and Global Law, in the University of Sydney.

Ten years ago to the day, the United Nations Convention on the Law of the Sea (the Convention) entered into force.

This was a unique achievement of international diplomacy and international law at the time.

Today, with the hindsight of ten years, we can see just how important that achievement was.

The aim of today's Symposium is to understand just what it is that this Convention has offered us, both domestically and internationally

Today's Symposium will also examine how the law of the sea has evolved since the Convention's entry into force, and the directions this evolution may take in the future.

The process that gave birth to the Convention goes back to 1967 to the 22nd session of the United Nations General Assembly when Ambassador Arvid Pardo of Malta first articulated a concept that later won universal acceptance

This concept created the need to define what the deep ocean floor was, how it should be measured

The formal negotiation process lasted from 1973 to 1982.

It is no hyperbole to say that this was the longest, the largest and clearly one of the most important negotiating efforts ever undertaken successfully by the global community.

Australia deposited its instrument of ratification of the Convention on 5 October 1994, thereby becoming an original Party.

The Benefits

Australia's overriding objective during the law of the sea negotiations was the adoption of a widely accepted and comprehensive Convention which met Australia's substantive interests.

The results exceeded this objective.

The Convention provides a comprehensive set of legal principles governing human activities at sea.

It covers such diverse issues as maritime zones, fisheries conservation and management, piracy, transit through international straits, protection and conservation of the marine environment and mining of the deep seabed.

Moreover, it is almost universally accepted as reflecting in many parts customary international law.

Just yesterday Australia lodged with the Commission on the Limits of the Continental Shelf in New York a submission on the outer limit of Australia's continental shelf, where it extends beyond 200 miles from the territorial sea baseline.

Following Russia and Brazil, Australia's submission is the third on the Commission's books.

It represents the culmination of 10 years of research, marine survey, scientific and legal interpretation and diplomacy, costing around 80 million dollars.

The submission, which is the largest made so far, will affirm Australia's rights over a seabed area of 3.4 million square kilometres - or almost half the area of Australia's landmass.

I might add that it was despatched to New York on two separate flights and weighed a total of around 900 kilograms.

This is not the only recent development of major significance.

On 25 July 2004, in Adelaide, I was pleased to sign for Australia a bilateral maritime boundary delimitation treaty with New Zealand.

The Treaty settled what was up until then Australia's longest undelimited maritime boundary, and is one of the first in the world to deal with the question of the extended continental shelf.

As a boundary settled by negotiation, it is by definition one that both sides regard as an equitable outcome within the meaning of the Convention.

The legal certainty it engenders is an essential step towards making possible the exploitation, effective management and conservation of the resources of the maritime areas in question.

During the past year Australia has also been negotiating, in good faith and under difficult circumstances, to delimit maritime boundaries with East Timor.

This, along with small areas of extended continental shelf between Norfolk Island and New Caledonia and between Heard and Kerguelen Islands, as well as those marine areas adjacent to the Australian Antarctic Territory, are the final frontiers for Australian maritime delimitation.

Australia will continue to work hard, in the spirit of the Convention, to achieve fair and equitable results in these areas as well.

As this audience is no doubt aware, Australia's fisheries resources represent an extraordinary source of sustenance and livelihood for countless people in Australia and overseas.

We are determined to protect and sustainably manage these resources.

In this context, Australia has also been at the forefront of international efforts to combat illegal, unreported and unregulated fishing - also known by the acronym IUU - and has been active in protecting its sovereign rights within its Exclusive Economic Zone.

I was delighted to learn that this year's annual meeting of the Commission for the Conservation of Antarctic Marine Living Resources - or CCAMLR - held earlier this month in Hobart, adopted a resolution establishing a centralised vessel monitoring system (cVMS) - an Australian proposal.

The system - or cVMS as it is termed - will provide tamper-proof, near real-time monitoring of vessels fishing in the CCAMLR area.

No single measure will do more to combat IUU fishing, in particular of over-harvested Patagonian Toothfish stocks in the Southern Ocean.

Australia also recently concluded a fisheries surveillance and cooperation agreement with France to further cooperation in combating IUU fishing, particularly in our adjacent maritime zones in the Southern Ocean.

It is a little known fact that Australia's maritime boundaries with France constitute, we believe, the longest French boundaries with any country.

The first joint patrols have already taken place under this treaty.

In the meantime, we are negotiating with France and South Africa on bilateral fisheries enforcement treaties, which will extend cooperation even further.

We are also looking at working with countries which share our interests to utilise modern remote sensing technology to catch pirate fishers at a place and time of our choosing.

And are working towards a 21st century definition of 'hot pursuit'.

Recent high profile apprehensions of the Uruguayan-flagged Viarsa I in October 2003 and the Maya V early this year illustrated Australia's commitment to prosecute to the fullest extent its entitlements under the Convention, including the right of hot pursuit.

Those of you who followed the case of the Viarsa I will be aware that the apprehension followed the longest hot pursuit in naval history and drew on the assistance of a number of other States.

Ladies and gentlemen

While the Convention provides a wide-ranging regime on the uses of the oceans, it is not intended to be the final word on these issues.

Rather, it acts as an umbrella or framework agreement encouraging States to develop more detailed rules on specific issues in international bodies

The Convention's innovative and comprehensive dispute settlement regime has also meant that, when differences arise, we have a common language and discourse in seeking to resolve them peacefully.

And, notwithstanding the specific amendment procedure inscribed in the Convention, the truth is that development of the international law of the sea has always been a work in progress.

One thing is certain - the international law of the sea, like all other branches of international law, cannot stand still

The furthering of legal concepts and principles through the development of international custom, and the conclusion of bilateral, regional and other international agreements, all provide impetus for the clarification and expansion of legal concepts which may one day form part of the Convention itself.

For example, provisions of the Convention concerning enforcement on the high seas, including hot pursuit - which I mentioned earlier - should be applied in their modern context, allowing satellite-based and other remote sensing technologies to enable both identification and pursuit of illegal vessels.

Unless this is done, illegal fishing interests will continue to evade capture - proper conservation and management, the rule of law and the principle of national sovereignty all risk being undermined.

The Volga Case in which Australia was defendant before the International Tribunal for the Law of the Sea represented a small but positive shift in attitude on the part of the Tribunal in dealing with illegal fishing.

In that case, an attempt was made to use the judicial processes under the Convention on behalf of the owners of a vessel illegally plundering Patagonian Toothfish to avoid the consequences of their illegal acts.

In contrast to some previous cases, the Tribunal, consistent with the submissions of Australia, set the bond at the full value of the vessel as well as its catch - the first case in which this has ever happened.

This shift in jurisprudence was a useful step in deterring IUU fishing, although much remains to be done.

Another question is whether provisions concerning boarding should extend beyond ships falling within the classical definition of 'piracy', to those that are carrying drugs or weapons of mass destruction.

These types of questions are in no way abstract, arcane musings.

They concern very real situations which are already upon us and which we must be able to deal with today.

The boarding of vessels suspected of carrying weapons of mass destruction is a key concern for those countries - Australia included - that participate in the Proliferation and Security Initiative (PSI).

Conclusion

This is a particularly exciting period for Australia in the field of the international law of the sea.

There are many more questions and issues which come to mind than I have been able to cover fully in my remarks today - but I shall leave them for you to debate further.

The impressive line-up of learned speakers gathered here today will ensure a spirited and fruitful exchange of ideas.

Ladies and gentlemen

Australia is a strong supporter of a rules-based international system.

But international law works best, and enjoys the support necessary for its effective observance, when it is reflective of and responsive to legitimate state interests

The Convention on the Law of the Sea has been an archetype of international law in this regard.

Each era poses new questions of the Convention.

And as a fundamental, pioneering, organic legal instrument, the Convention must be developed to answer them in a way that furthers the interests of Australia and the international community.

Thank you.