TITLE: THE SOVEREIGNTY OF ISLANDS: A CONTEMPORARY METHODOLOGY FOR THE DETERMINATION OF RIGHTS OVER NATURAL MARITIME RESOURCES NAME: Lieutenant Dominic Henley KATTER, RANR BA(Qld), LLB(Qld), LLM(Qld), MPhil(Cantab) MCIArb, MIAMA, ANZIIF(Mem), AIMM, FTIA Barrister at Law (Qld and the High Court of Australia) Barrister and Solicitor (Vic and NZ) Legal Practitioner (NSW, ACT and NT) Former Wakefield Scholar, Law Faculty, University of Cambridge Fellow of the Cambridge Commonwealth Trust SCHOOL/FACULTY: Law A dissertation submitted in partial fulfilment for the degree of Doctor of Juridical Science at the Queensland University of Technology SUPERVISOR: ASSOCIATE PROFESSOR PHILIP TAHMINDJIS ASSOCIATE SUPERVISOR: MS FRANCES HANNAH DATE SUBMITTED FOR EXTERNAL EXAMINATION: 19 May 2003 (further submission 24 November) STUDENT NUMBER: 02279754 COURSE: DOCTOR OF JURIDICAL SCIENCE – LW 50 Please do not copy this document without permission. KEYWORDS Sovereignty – Islands – maritime resources – Falkland Islands – customary international law – maritime zones – delimitation – law of the sea – UNCLOS – boundaries – resources ABSTRACT Once it was said that the law followed the flag. Now, international law is everywhere. Its influence increases.1 Sovereignty is no longer an intra-national concept within International Law. It now involves a greater consideration of issues concerning the global community. This thesis develops a practical methodology for the determination of sovereignty over maritime natural resources. Customary international law regarding the use of resources within the maritime zones of islands on the high seas is rapidly developing. Traditional tests, such as the discovery and occupation of islands, are no longer the primary focus of the determination of sovereignty. The methodology expressed in this thesis is an application and adaptation of the current state of the international laws regarding islands within the high seas. This argument has its foundation in the new international treaties, recent decisions of the International Court of Justice, the Permanent Court of Arbitration and the International Tribunal for the Law of the Sea. It unifies the latest determinations and theoretical legal perspectives of these bodies to produce a single methodology. This work provides an original and substantial contribution to the knowledge and understanding of sovereignty issues within International Law. The Chapters of this thesis and their sub-headings progressively illuminate the individual elements of a distinctive formula for determining the sovereignty of islands within the high seas. The Chapters form a template for this methodology, which is applied to the Falkland Islands. Thus, each chapter is a step towards the determination of sovereignty. This modus operandi can be applied to new disputes in this realm, such as those filed with the International Court of Justice. Since 1982, the definitive ownership of the Falkland Islands proper has been determined, if not by International Law, then by warfare. However, conflict over the use of natural resources in the maritime zones continues. 1 Kirby, Visions of the Legal Order in the 21st century: essays to honour His Excellency Judge C J Weeramantry Ed. Sturgess and Anghie) The Growing Rapprochment Between International Law and National Law. Parts of this contribution appeared in an earlier form in the paper by the author "The Impact of International Human Rights Norms: 'A Law Undergoing Evolution'" (1995) 25 Western Australian Law Review 1. TABLE OF CONTENTS i. Front Page of Thesis ii. Certificate recommending acceptance iii. Keywords iv. Abstract v. Table of Contents vi. List of Illustrations vii. Statement of Original Authorship viii. Acknowledgements 1. INTRODUCTION 2. GEOGRAPHY AND DESCRIPTION OF THE FALKLAND ISLANDS 3. CONCISE HISTORY OF THE FALKLAND ISLANDS 4. HISTORICAL LEGAL PRECEDENTS WITHIN INTERNATIONAL LAW 5. EVALUATION OF RESPECTIVE CLAIMS 6. THE GENERAL LEGAL FRAMEWORK FOR MARITIME ZONE DELIMITATION 7. THE MARITIME ZONES OF THE FALKLAND ISLANDS 8. THE USE OF MARITIME NATURAL RESOURCES 9. NATURAL RESOURCES AROUND THE ISLANDS 10. CONCLUSION BIBLIOGRAPHY LIST OF ILLUSTRATIONS Chapter 2 Map of the South-West Atlantic Ocean page 2-16 Map of the Falkland Islands page 2-17 Chapter 6 Legal Regimes of Oceans and Airspace Area page 6-87 Archipelagic Maritime Delimitation page 6-96 Chapter 7 The Patagonian Shelf page 7-108 The Special Co-Operation Area page 7-120 Chapter 9 Tranch licences page 9-169 The work contained in this thesis has not been previously submitted for a degree or diploma at any other higher education institution. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made. Signed: Date: ACKNOWLEDGEMENTS There are a number of people to whom I owe sincere thanks. I have been honoured by the interest shown in this work from three of the world’s leading public international lawyers: Firstly, the Emeritus Whewell Professor of International Law of the University of Cambridge, Sir Derek Bowett CBE, QC, LLD, FBA who gave his valuable time in reading and commenting on the draft chapters of this thesis. I am honoured by the fact that Sir Derek has agreed to write a forward on publication of this thesis. I owe special thanks to Dr Richard Plender QC, LLD, Barrister at Law and Bencher of the Inner Temple, who took time away from his busy practice to provide a meticulous commentary on the draft chapters. Finally, I would like to thank the former President of the International Court of Justice, Emeritus Whewell Professor of International Law of the University of Cambridge, Sir Robert Jennings QC. Despite wishing to protect his neutrality (having at one time been a counsel for Argentina in their disputes with Chile) he provided useful written comments after reading a draft of the thesis. I am greatly indebted to my father and mother, Dr Norman and Mary Josephine Katter, for their wisdom and direction in the preparation of this thesis. For the generosity of their time and effort in reviewing this document, I owe a debt of gratitude to: Professor Stephen Corones, Professor John Devereux, Dr Michael White QC, Mr Joseph Crowley, Mr Miles Dickson, Ms Susan Anderson, Mr Brendan Cronin, Ms Anna Dunbar, Mr Cory Kao and Christopher Taufatofua. Special mention should also be made of the assistance of my Supervisor, Associate Professor Philip Tahmindjis and Associate Supervisor, Ms Frances Hannah. The further assistance provided by Ms Frances Hannah, Dr Barbara Hocking and Dr Edgar Gold CM, QC at the final review on 8 April 2003 was invaluable. This research was supported by an Australian Postgraduate Award from the Commonwealth Government and a Queensland University of Technology Faculty Based Award. Further, the Royal Australian Navy provided me with financial assistance for this research. Dominic Katter 24 November 2003 1-1 INTRODUCTION INTRODUCTION CONTENTS BACKGROUND – HISTORICAL .............................................................. 2 BACKGROUND – LEGAL ...................................................................... 3 AIM................................................................................................... 4 METHODOLOGY ................................................................................. 6 STRUCTURE ...................................................................................... 7 BACKGROUND – CONTEXT ................................................................. 8 LITERATURE REVIEW ......................................................................... 9 1-2 INTRODUCTION Background – Historical During the 20th century, the growth in the world’s population and improvements in technology have resulted in a greater demand for natural resources. One of the by-products of this increase in consumption has been the potential for the over-utilisation and subsequent degradation of the natural environment. The oceans play a significant and critical part in our global eco-system comprising over 70 per cent of the surface of the earth.1 Oceans are the primary method of trade between nations2 as well as being a major supplier of natural resources.3 In the not too distant future, the floor and the substratum of the seabed are likely to provide a more significant proportion of the world’s mineral resources. It is the responsibility of all nations, especially coastal states, to ensure that the resources of the oceans are utilised in an environmentally acceptable manner. National responsibilities extend to the atmosphere above the oceans, to the seabed below and to the coastal zones. Article 192 of the 1982 United Nations Convention on the Law of the Sea (“UNCLOS III”) clearly states these responsibilities: “States have the obligation to protect and preserve the marine environment”.4 That convention defines national responsibilities over maritime areas. This allocation of responsibilities raises questions of sovereignty and delimitation of territory and zones of national jurisdiction. Traditionally, nations claimed a limited jurisdiction over the maritime environment adjacent to their coastlines. During the last two centuries there has been a shift from maritime boundaries being determined for political reasons to being delimited for economic reasons. The increased use of oceanic resources has resulted in jurisdictional claims over greater maritime areas. The result has been that some nations have claimed areas that they may be unable or perhaps