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The division of narrow seas
POLITICAL GEOGRAPHY QUARTERLY, Vol. 5, No. 1, January 1986, 39-42
The division of narrow seas ALEXANDERMELAMID
Department of Economics, New York University, New York NY 10012, USA
ABSTRACT. Delimitation of maritime boundaries is especially difficult in narrow seas, especially if one party or another insists on using the median line as a boundary. This problem is illustrated by the delimitations made or pending in the Persian Gulf, the North Sea, the Timor Sea and the Torres Strait. In the Persian Gulf median lines were used almost exclusively, but there have been difficulties caused by islands off the southern shore and Iraq has been left with a very small maritime zone. These problems have been partially resolved by establishing neutral zones in which resource rights are shared. Median lines also had to be adjusted in the Timor Sea, now shared by Western Australia, the Australian federal government and Indonesia. Similarly, in the North Sea, following a landmark World Court decision, median lines were adjusted to give West Germany a larger maritime zone at the expense of The Netherlands and Denmark. Special attention is given to the Torres Strait boundary between Australia and Papua New Guinea. Here, special provisions were made to protect the traditional rights of the Torres Strait Islanders, a distinct group of people living very close to Papua New Guinea but having Australian citizenship. These provisions could provide models for boundary delimitations in other narrow seas.
Use of median lines in the division of narrow seas can cause serious inequities of offshore rights if limited shoreline access of local states and wide geographical dispersal of islands are involved. A study of the Persian or Arab Gulf indicates some of these inequities. Solutions of these problems can be seen in the redefinition of German offshore rights in the North Sea, the division of the Timor Sea, and in some novel suggestions for the division of Torres Strait. In the Persian or Arab Gulf median lines were used almost exclusively to establish offshore rights. As this relatively shallow gulf is full of low islands claimed by states located on its southern shore, median lines lie closer to the northern shore than to the southern. This situation partly explains Iran’s seizure of islands (Tunbs, etc.) at the entrance of the Gulf after British withdrawal of protection from the United Arab Emirates in 197 1. Most of the islands claimed by states on the southern shoreline have no drinking water and are only occasionally occupied by fishermen and pearlers, who are organized in tribes whose political attachment to mainland territories is frequently not clear. (Some pay tributes or zakat to several mainland rulers.) This has resulted in disputes over island sovereignties and thus median lines, not only with north-shore states but also among south-shore states. For this same reason land boundary terminals are frequently disputed, which aggravates conflicts
0260-9827/86/01 0039-04 503.00 0 1986 Butterworth 8z Co (Publishers) Ltd
40
The division of nmrow seas
over both islands and median lines. This statement particularly applies to Iraq, which is now involved in a war with Iran over its land boundary which, by extension into the Gulf, results in only a very small area of offshore rights for Iraq. As the whole area of the Gulf is regarded as a potentially significant oil-producing region, these disputes have effectively restricted exploration and drilling to undisputed offshore sectors which are usually far from median lines. One example is the Cyrus and Esfandir oilfields in the Iranian sector of the northern Persian Gulf. These oilfields probably extend into the Kuwaiti and Saudi Arabian sectors and possibly into the Iraqi sector as defined by present median lines, but are not being explored for fear of political disputes.’ In these days of restrictions on oil production by the members of the Organization of Petroleum Exporting Countries (OPEC), this absence of exploration may not matter, but it may be important, probably in about a decade when some developed oilfields in the region approach exhaustion. To overcome this problem of offshore boundary disputes, neutral offshore sectors have been established where two or possibly more states share rights. One of these is shared by Saudi Arabia and Bahrein, the other is shared between Qatar and Abu Dhabi. Only one concessionaire operates in the latter neutral sector and revenues are shared equally between the two states. However, Saudi Arabia has claimed part of the adjoining Abu Dhabi shore since the 1930s. If this claim succeeds, different median lines will have to be drawn which may affect the status of this now neutral sector. Except for Bahrein, which is an independent state, inhabitants of Gulf islands have no rights of their own to offshore resources. An example is Kharg Island (Iran), which before development as an Iranian oil terminal had under 500 inhabitants. They spoke an Iranian dialect and had land ownership relations to an Iranian mainland tribe, but unlike most Iranians they are Sunni Muslim and have long-established religious and economic ties to Basrah in Iraq. Despite these complicated and disputed divisions of offshore rights, international transit rights are unrestricted, having been established, under British aegis, long before the offshore resource divisions. The distribution of fishing and pearling rights is confused, as these are partly related to claims to islands and tribal loyalties. As fishing and pearling are now no longer important in the economy of the region, several of these disputes have lapsed. Nearly halfway around the world we find a very different case of division of narrow seas. Use of median lines and islands would have allotted most of the Timor Sea to the Australian state of Western Australia. As this state is rich in minerals, both on land and offshore, the Australian federal government decided to assume sovereignty over the uninhabited Ashmore and Cartier Islands. New median lines between these islands and Western Australia established a large sector of Australian federal rights which is administered as part of its Northern Territory. Here Jabiru 1A well, under almost 400 feet of water, became the biggest producing well in Australia. * However, further north in the Timor Sea, offshore boundaries came to be disputed after the Indonesian annexation of Portuguese Timor. Since median lines limited the German sector in the North Sea to a relatively small area, the World Court in The Hague decided that other claimants would have to adjust their maritime boundaries to accommodate Germany. This was achieved without guidance from the Court in administrative procedures which made the German sector northwest of Helgoland wider than median lines would permit. Another quite novel solution has been worked out for Torres Strait, between Australia and Papua New Guinea, which has important fishing and oil potential, in eight years of negotiation. Here in 1879 the then British colony of Queensland, now a state of Australia, had effectively claimed islands as close as 500 meters from the shore of New Guinea, which at that time was terra nullius. A median line between these islands and the mainland
41
ALEXANDERMELAMID PAPUA NEW GUINEA
CIZagaiI. TORRES STRAIT
/
Prince of Wales I.
the seabed resource rights of Australia and Papua New Guinea, while protecting the traditional activities of Torres Strait Islanders. -, Seabed Resources Delimitation Line; - - -, line delineating the Protected Zone; * * * * - *, limits of Australian territorial seas FIGURE 1. The Torres Strait solution accommodating
north of the seabed line, and basic extent of Papua New Guinea territorial sea.
territory of the modern state of Papua New Guinea would have severely restricted the offshore rights of the new state. While devising a method to accommodate Papua New Guinea, Australian researchers discovered that some of the uninhabited islands located very close to the Papua New Guinea shore had been misidentified and did not belong to the Talbot Island group which had been claimed by Queensland in 1879.3 Even this redefinition, however, would not substantially enlarge Papua New Guinea’s offshore rights if a median line boundary were used, so a seabed resources delimitation line was drawn-which gives a significant part of Torres Strait resource rights to Papua New Guinea but leaves many Australian islands beyond that line. These islands, together with their three-mile territorial seas, are therefore enclaves within the Papua New Guinea seabed resource rights area. As these Australian islands tend to change their shape with mangrove forest advances, decay of sand dunes, etc., their present limits were ascertained and mapped, and it was agreed that the shape of the territorial seas of these islands would not change with accretions or decretions of the islands concerned. Further, a large part of Torres Strait thus divided was placed within a ‘Protected Zone’. In this zone traditional fishing and other activities of Torres Strait Islanders have preference over other forms of offshore resource exploitation, including modern commercial fishing. The preference rights for Torres Strait Islanders were arranged as these islanders differ from Papua New Guineans in that their culture was significantly changed by Polynesian rule and immigration.4 Topres Strait Islanders also differ from Australian aborigines. They are, however, Australian citizens with full rights and many Torres Strait Islanders work on the Australian mainland, mainly in highly paid construction jobs. Their women tend to stay in the islands. As a result, the nearly 10000 Torres Strait Islanders have a high standard of living whilst preserving their traditional culture.5
42
The division
of nawow
seas
To inhibit outside influence, oil drilling and other mining activities are prohibited in the Protected Zone, at least until 1991. Commercial fishing outside the Protected Zone is divided by a series of complex formulae and by a northward division of the seabed resources delimitation line into a fisheries jurisdiction line. b This assures a specific percentage of fish catches to Papua New Guinea and Australia. Third countries, such as Korea or Taiwan, may fish in the zone only after both Australian and Papua New Guinean rights have been satisfied. In this allocation of fishing rights Papua New Guinea obtained the valuable Baramundi, although consumption of this fish is now mainly limited to Australia. Marine and air transit rights are unrestricted as before and Australia is obliged to provide the necessary markers, beacons, etc. Lastly, a joint commission of Australia and Papua New Guinea is to provide for execution of this treaty, amendments of details and particularly for protecting the interests of Torres Strait Islanders and Papua New Guineans exercising the various rights established in the straits. Overall, this treaty, which still required ratification in early 1984, provides a number of novel solutions of the problems involved in dividing offshore rights in narrow seas. The detailed consideration of the rights of island inhabitants is another significant feature which can be adopted in other treaties, for the Strait of Malacca for example, which has only been divided in its westernmost, wider part. However, Papua New Guinea’s desire for revenues from mineral production in its part of the Protected Zone may prevent ratification of this important treaty.
Notes The Oiland Gas Journal, 26 September 1969, p. 68. Petroleum Gazette (Melbourne), December 1983, p. 175. A. Melamid (1981), The Torrest Strait Treaty, Wirtscbaftsgeographicbe Stud& (Vienna), August, 83-88. Conquest by Polynesians is supposed to have taken place shortly before the arrival of Europeans in the region. From: Australian Census 197 1; for detailed figures see Melamid, op. cit. Note 3, p. 84. Only a handful of persons of European origin reside in the Torres Strait Islands; these are mainly missionaries or administrators living there on short-term contracts. 6. A map of the fisheries jurisdiction boundary is found in H. Burmeister (1982), The Torres Strait Treaty: ocean boundary delimitation by agreement, The American Journal of InternationalLaw 76, 321-349 (map on p. 335).
1. 2. 3. 4. 5.
The division of narrow seas ALEXANDERMELAMID
Department of Economics, New York University, New York NY 10012, USA
ABSTRACT. Delimitation of maritime boundaries is especially difficult in narrow seas, especially if one party or another insists on using the median line as a boundary. This problem is illustrated by the delimitations made or pending in the Persian Gulf, the North Sea, the Timor Sea and the Torres Strait. In the Persian Gulf median lines were used almost exclusively, but there have been difficulties caused by islands off the southern shore and Iraq has been left with a very small maritime zone. These problems have been partially resolved by establishing neutral zones in which resource rights are shared. Median lines also had to be adjusted in the Timor Sea, now shared by Western Australia, the Australian federal government and Indonesia. Similarly, in the North Sea, following a landmark World Court decision, median lines were adjusted to give West Germany a larger maritime zone at the expense of The Netherlands and Denmark. Special attention is given to the Torres Strait boundary between Australia and Papua New Guinea. Here, special provisions were made to protect the traditional rights of the Torres Strait Islanders, a distinct group of people living very close to Papua New Guinea but having Australian citizenship. These provisions could provide models for boundary delimitations in other narrow seas.
Use of median lines in the division of narrow seas can cause serious inequities of offshore rights if limited shoreline access of local states and wide geographical dispersal of islands are involved. A study of the Persian or Arab Gulf indicates some of these inequities. Solutions of these problems can be seen in the redefinition of German offshore rights in the North Sea, the division of the Timor Sea, and in some novel suggestions for the division of Torres Strait. In the Persian or Arab Gulf median lines were used almost exclusively to establish offshore rights. As this relatively shallow gulf is full of low islands claimed by states located on its southern shore, median lines lie closer to the northern shore than to the southern. This situation partly explains Iran’s seizure of islands (Tunbs, etc.) at the entrance of the Gulf after British withdrawal of protection from the United Arab Emirates in 197 1. Most of the islands claimed by states on the southern shoreline have no drinking water and are only occasionally occupied by fishermen and pearlers, who are organized in tribes whose political attachment to mainland territories is frequently not clear. (Some pay tributes or zakat to several mainland rulers.) This has resulted in disputes over island sovereignties and thus median lines, not only with north-shore states but also among south-shore states. For this same reason land boundary terminals are frequently disputed, which aggravates conflicts
0260-9827/86/01 0039-04 503.00 0 1986 Butterworth 8z Co (Publishers) Ltd
40
The division of nmrow seas
over both islands and median lines. This statement particularly applies to Iraq, which is now involved in a war with Iran over its land boundary which, by extension into the Gulf, results in only a very small area of offshore rights for Iraq. As the whole area of the Gulf is regarded as a potentially significant oil-producing region, these disputes have effectively restricted exploration and drilling to undisputed offshore sectors which are usually far from median lines. One example is the Cyrus and Esfandir oilfields in the Iranian sector of the northern Persian Gulf. These oilfields probably extend into the Kuwaiti and Saudi Arabian sectors and possibly into the Iraqi sector as defined by present median lines, but are not being explored for fear of political disputes.’ In these days of restrictions on oil production by the members of the Organization of Petroleum Exporting Countries (OPEC), this absence of exploration may not matter, but it may be important, probably in about a decade when some developed oilfields in the region approach exhaustion. To overcome this problem of offshore boundary disputes, neutral offshore sectors have been established where two or possibly more states share rights. One of these is shared by Saudi Arabia and Bahrein, the other is shared between Qatar and Abu Dhabi. Only one concessionaire operates in the latter neutral sector and revenues are shared equally between the two states. However, Saudi Arabia has claimed part of the adjoining Abu Dhabi shore since the 1930s. If this claim succeeds, different median lines will have to be drawn which may affect the status of this now neutral sector. Except for Bahrein, which is an independent state, inhabitants of Gulf islands have no rights of their own to offshore resources. An example is Kharg Island (Iran), which before development as an Iranian oil terminal had under 500 inhabitants. They spoke an Iranian dialect and had land ownership relations to an Iranian mainland tribe, but unlike most Iranians they are Sunni Muslim and have long-established religious and economic ties to Basrah in Iraq. Despite these complicated and disputed divisions of offshore rights, international transit rights are unrestricted, having been established, under British aegis, long before the offshore resource divisions. The distribution of fishing and pearling rights is confused, as these are partly related to claims to islands and tribal loyalties. As fishing and pearling are now no longer important in the economy of the region, several of these disputes have lapsed. Nearly halfway around the world we find a very different case of division of narrow seas. Use of median lines and islands would have allotted most of the Timor Sea to the Australian state of Western Australia. As this state is rich in minerals, both on land and offshore, the Australian federal government decided to assume sovereignty over the uninhabited Ashmore and Cartier Islands. New median lines between these islands and Western Australia established a large sector of Australian federal rights which is administered as part of its Northern Territory. Here Jabiru 1A well, under almost 400 feet of water, became the biggest producing well in Australia. * However, further north in the Timor Sea, offshore boundaries came to be disputed after the Indonesian annexation of Portuguese Timor. Since median lines limited the German sector in the North Sea to a relatively small area, the World Court in The Hague decided that other claimants would have to adjust their maritime boundaries to accommodate Germany. This was achieved without guidance from the Court in administrative procedures which made the German sector northwest of Helgoland wider than median lines would permit. Another quite novel solution has been worked out for Torres Strait, between Australia and Papua New Guinea, which has important fishing and oil potential, in eight years of negotiation. Here in 1879 the then British colony of Queensland, now a state of Australia, had effectively claimed islands as close as 500 meters from the shore of New Guinea, which at that time was terra nullius. A median line between these islands and the mainland
41
ALEXANDERMELAMID PAPUA NEW GUINEA
CIZagaiI. TORRES STRAIT
/
Prince of Wales I.
the seabed resource rights of Australia and Papua New Guinea, while protecting the traditional activities of Torres Strait Islanders. -, Seabed Resources Delimitation Line; - - -, line delineating the Protected Zone; * * * * - *, limits of Australian territorial seas FIGURE 1. The Torres Strait solution accommodating
north of the seabed line, and basic extent of Papua New Guinea territorial sea.
territory of the modern state of Papua New Guinea would have severely restricted the offshore rights of the new state. While devising a method to accommodate Papua New Guinea, Australian researchers discovered that some of the uninhabited islands located very close to the Papua New Guinea shore had been misidentified and did not belong to the Talbot Island group which had been claimed by Queensland in 1879.3 Even this redefinition, however, would not substantially enlarge Papua New Guinea’s offshore rights if a median line boundary were used, so a seabed resources delimitation line was drawn-which gives a significant part of Torres Strait resource rights to Papua New Guinea but leaves many Australian islands beyond that line. These islands, together with their three-mile territorial seas, are therefore enclaves within the Papua New Guinea seabed resource rights area. As these Australian islands tend to change their shape with mangrove forest advances, decay of sand dunes, etc., their present limits were ascertained and mapped, and it was agreed that the shape of the territorial seas of these islands would not change with accretions or decretions of the islands concerned. Further, a large part of Torres Strait thus divided was placed within a ‘Protected Zone’. In this zone traditional fishing and other activities of Torres Strait Islanders have preference over other forms of offshore resource exploitation, including modern commercial fishing. The preference rights for Torres Strait Islanders were arranged as these islanders differ from Papua New Guineans in that their culture was significantly changed by Polynesian rule and immigration.4 Topres Strait Islanders also differ from Australian aborigines. They are, however, Australian citizens with full rights and many Torres Strait Islanders work on the Australian mainland, mainly in highly paid construction jobs. Their women tend to stay in the islands. As a result, the nearly 10000 Torres Strait Islanders have a high standard of living whilst preserving their traditional culture.5
42
The division
of nawow
seas
To inhibit outside influence, oil drilling and other mining activities are prohibited in the Protected Zone, at least until 1991. Commercial fishing outside the Protected Zone is divided by a series of complex formulae and by a northward division of the seabed resources delimitation line into a fisheries jurisdiction line. b This assures a specific percentage of fish catches to Papua New Guinea and Australia. Third countries, such as Korea or Taiwan, may fish in the zone only after both Australian and Papua New Guinean rights have been satisfied. In this allocation of fishing rights Papua New Guinea obtained the valuable Baramundi, although consumption of this fish is now mainly limited to Australia. Marine and air transit rights are unrestricted as before and Australia is obliged to provide the necessary markers, beacons, etc. Lastly, a joint commission of Australia and Papua New Guinea is to provide for execution of this treaty, amendments of details and particularly for protecting the interests of Torres Strait Islanders and Papua New Guineans exercising the various rights established in the straits. Overall, this treaty, which still required ratification in early 1984, provides a number of novel solutions of the problems involved in dividing offshore rights in narrow seas. The detailed consideration of the rights of island inhabitants is another significant feature which can be adopted in other treaties, for the Strait of Malacca for example, which has only been divided in its westernmost, wider part. However, Papua New Guinea’s desire for revenues from mineral production in its part of the Protected Zone may prevent ratification of this important treaty.
Notes The Oiland Gas Journal, 26 September 1969, p. 68. Petroleum Gazette (Melbourne), December 1983, p. 175. A. Melamid (1981), The Torrest Strait Treaty, Wirtscbaftsgeographicbe Stud& (Vienna), August, 83-88. Conquest by Polynesians is supposed to have taken place shortly before the arrival of Europeans in the region. From: Australian Census 197 1; for detailed figures see Melamid, op. cit. Note 3, p. 84. Only a handful of persons of European origin reside in the Torres Strait Islands; these are mainly missionaries or administrators living there on short-term contracts. 6. A map of the fisheries jurisdiction boundary is found in H. Burmeister (1982), The Torres Strait Treaty: ocean boundary delimitation by agreement, The American Journal of InternationalLaw 76, 321-349 (map on p. 335).
1. 2. 3. 4. 5.