LOS PRESUPUESTOS PA RTICIPATI VOS
4.5. Bienestar y calidad de vida
The Convention recognises the 200 mile zone as legally sui generis. As we have already seen because of the fear of creeping jurisdiction the maritime powers argued that the EEZ should have a residual high seas character, i.e. that any activity not falling within the clearly defined rights of the coastal state would be subject to the regime of the high seas. The Convention (articles 55 and 86) makes it clear that the EEZ does not have a residual high seas character. Nor does it have a residual territorial sea character i.e. it does not create a presumption that any activity not falling within the clearly defined rights of non coastal states would come under the jurisdiction of the coastal state. The EEZ is a separate functional zone of a sui generis character.18 Australia supported the sui generis compromise that was incorporated in the ICNT at the conclusion of the sixth session. The Convention recognises the sovereignty of an archipelagic state over the waters enclosed by archipelagic baselines drawn in accordance with the Convention and to the air space over them (Art 49). This was an important goal of A ustralia’s Asia/Pacific neighbours that Australia supported.19 At the same time the Convention provides the balance that Australia sought between the rights of archipelagic states and rights o f other states to sea passage and overflight of archipelagic waters by providing for archipelagic sea lanes passage which cannot be suspended.20 If the archipelagic state does not designate sea lanes or air routes that right may be exercised through the routes normally used for international navigation.
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As far as passage through straits is concerned Australia’s navigational interests have been strengthened with the introduction of the concept of transit passage which is the same in effect as archipelagic sealanes passage.21 There may be a temporary suspension of innocent passage in the territorial sea, but no suspension of transit passage in straits used for international navigation. Transit passage includes overflight which is not a right in the territorial sea. As was noted earlier the right o f satisfactory transit rights through straits was considered critical by the maritime powers and Australia tied its acceptance of the twelve mile territorial sea limit to a satisfactory regime of straits passage, as a twelve mile territorial sea would close off as territorial sea 116 straits used for navigation which previously had high seas passage. Sixty three o f these straits affected by the Convention’s 12 mile territorial sea limit lie in the South Pacific, Western Pacific, South East and East Asia.22 In the words of one senior Australian naval officer, the regime of transit passage ‘can only be regarded as an important new contribution to freedom of navigation’,23 although how navigational freedom will be protected will depend in part on the operational practices of the world’s navies.24 The straits regime applies in Torres Strait and may potentially apply in Bass Strait if Australia moved to a 12 mile territorial sea.25
The regime of innocent passage adds more detail to the regime than existed under the 1958 Convention. The Convention provides for an objective rather than subjective test for innocence, since the test for innocence is linked to activities while in the territorial sea, rather than passage itself (Art. 19). Australia supported the elaboration in greater detail of the meaning of innocent passage, although it objected to the listing of two activities ‘any act of wilful and serious pollution, contrary to this Convention’ and a catch-all provision ‘any other activity not having a direct bearing on passage’ that appear in Art. 19 of the C onvention.26 To the extent that the Convention reduces the ambiguity o f the earlier 1958 Convention by providing an objective rather than a subjective test of innocence it meets A ustralia’s goal of not compromising navigational freedoms without derogating from previously held sovereign rights. Much will depend on the practice of states here. This will be the case particularly with regard to the question of whether warships need to notify the coastal state or obtain authorisation before exercising the right of innocent passage, a question that the Convention leaves unanswered.27 Australia’s position is that prior consent or notification is not necessary for the passage of warships through the territorial sea.28
Other Issues
The new regime for MSR29 gives the coastal state the power to regulate MSR in the EEZ, although in ‘normal circumstances’ it should grant its consent to states and competent
international organisations. The regime thus favours A ustralia’s position that those intending to engage in research within 200 miles must obtain the consent of the coastal state, yet these should not unreasonably withhold consent. States may withhold their consent where the research is of direct significance to the exploration or exploitation of the natural resources, involves drilling or the use o f explosives, or construction of artificial islands, though this discretion does not exist in relation to the margin beyond 200 miles except in specially designated areas. To guard against undue bureaucratic delay there is a provision for implied consent. Researchers may proceed within six months of supplying the required information, as long as the coastal state has not within four months questioned the objectives or asked for more information (or decided to withhold consent under one of the categories mentioned above). The right of coastal states to participate in MSR projects is provided (Art. 249), an important objective for Australia as a country with limited MSR capabilities that wanted maximum data on its offshore areas. Generally the new MSR regime supports Australia’s objective of seeking a consent regime while at the same time not placing unreasonable restrictions on MSR.30 As far as the provisions on marine pollution are concerned they are quite in harmony with A ustralia’s desire for increased coastal state control while ensuring that coastal state abuses of such control that may pose a threat to navigation were minimized.31 The text reflects in a number of areas opportunities for coastal states to extend their jurisdiction to control pollution but also includes an obligation ‘to protect and preserve the marine environment’ (Art. 192). In other words not to do so will be a breach of international law. That goal was one Australia had supported since the SBC. States that are parties to the Convention are required to work in the international community to establish rules and standards through com petent international organisations or general diplom atic conferences. A state may proceed against an offending vessel in one of its ports, notwithstanding that a discharge has occurred outside the states jurisdiction (Art. 220). Australia had been a strong supporter of port state enforcement at the conference. O f particular concern to Australia was the protection of the Great Barrier Reef, so Australia argued for greater coastal state flexibility in taking m easures that m ight not be incorporated in international instruments. A provision (substantially drafted by Australia) appears in the Convention and despite the fact that it was something of a compromise, met Australia’s requirements.32
The Convention’s environmental provisions represent a careful balancing of coastal state interests in the protection and preservation of the marine environment on the one hand, and the rights and interests o f others in preserving navigational freedoms and various shared uses of the world’s oceans on the other.33 Australia welcomed the Convention’s