- For the text of the Treaty, see Halsbury's Statutes of England (4th ed, 1985) Vol. 2, p. 318 et seq. The Treaty forms the First Schedule to the Antarctic Treaty Act (1967). See id at 309.
- The 1959 Treaty, preamble and Articles I and II.
- Article III.
- Czechoslovakia (1962), Denmark (1965), the Netherlands (1967), GDR (1974), Brazil (1975), Poland (1971), Romania (1971), Bulgaria (1978), FRG (1979), Uruguay (1980), Peru (1981), Papua New Guinea (1981), Italy (1981), Spain (1982), PRC (1983), India (1983), Sweden (1984), Finland (1984), Hungary (1984), Cuba (1984), South Korea (1986), Greece (1987), North Korea (1987), Ecuador (1987), Austria (1987), Colombia (1989), Canada (1989).
- Article IX (2).
- Poland, FRG, Brazil, Uruguay, PRC, India, Italy and GDR, Spain, Sweden.
- As to these claims and their basis generally see Gillian Triggs, International Law and Australian Sovereignty in the Antarctic (Legal Books Pty. Ltd., Sydney 1986), Chapters 1 and 2.
- As to the “bi-focal approach” see Gillian Triggs, “Antarctica and the Antarctic Treaty System: A Balance of Prudence”, Energy Law ′86. (Matthew Bender 1986), p. 444 et seq.
- See Triggs n. 7 supra at p. 331.
- Id at 335.
- Id at 343.
- See n. 7 supra.
- See n. 8 supra at p. 458–462.
- See n. 8 supra at p. 441.
- Recommendation XI-1 (1981).
- Beeby, p. 6.
- For the text of the 1988 Convention see CM 634 (1989). Article 60 concerns entitlement to become a party.
- Beeby, p. 10.
- Articles 1 to 17.
- Articles 18 to 36.
- Articles 37 to 54.
- Articles 55 to 59.
- Article 2.
- Article 3.
- Article 4.
- Article 8.
- Articles 11 and 12.
- Article 6.
- Article 14.
- Article 5(2).
- Article 5(3).
- See p. 6 supra.
- Beeby, op cit p. 12.
- Article 18(2).
- Article 21(l)(d).
- Article 22(1).
- Article 22(2) and (5).
- Article 41(2).
- Article 28.
- Article 40(3).
- Articles 23 to 27.
- Articles 29 to 32.
- Articles 37(1) and (2).
- Article 1(8).
- Articles 1, 37 and 38.
- Articles 22 and 41.
- Article 44.
- Articles 46, 47 and 48.
- Article 51.
- Articles 53 and 54.
- Articles 56 and 57.
- Article 58.
- Article 62.
- See Hansard, April 28, 1989, col. 926–945 (H.L.).
- As to whether the 1959 Treaty, the “Antarctic Treaty System” which has grown under it and steps taken under it represent a regime not merely as between the parties but also erga omnes, see, D. P. O'Connell, International Law (2nd ed. 1980) pp. 449–453; D. W. Greig, International Law (1970) p. 140 and J. Starke, An Introduction to International Law (10th ed. 1989) pp. 162–166, who argues that the Antarctic Treaty may well be within the category of those treaties which create “an internationally recognized status on regime, operative to some extent erga omnes” (Id at p. 44).
- Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, signed December 11, 1989 (hereinafter referred to as “the Treaty”).
- See (1989) 7 J.E.R.L., 78.
- In recent times, there have been several incidents involving these two countries or their nationals which have led to a measure of strain in inter-governmental relations: for example, the Indonesian annoyance at the media reporting of events in Indonesia by Australian journalists, the killing of a yachtsman who was an Australian resident by an Indonesian police officer, the persistence of Indonesian fishermen fishing illegally in Australian waters and Indonesia's actions at the Irian Jayan-PNG border.
- Australia has, however, not yet ratified this Convention while it has been ratified by Indonesia since 1986.
- See Art. 83(3).
- Ibid.
- See Recitals to the Treaty.
- Art. 2(3).
- Art. 1(1)(h).
- See s. 5(1). That definition includes an additional element; in its para, (c), petroleum is said to include any naturally occurring mixture of one or more hydrocarbons in whatever natural form and either hydrogen sulphide, nitrogen, helium or carbon dioxide. It is unclear why the Treaty definition is narrower than that in the Australian legislation.
- Australian Financial Review (Sydney) November 10, 1989.
- Art. 2(2)(a). Where, however, a petroleum reservoir extends across any boundary of Area A into either of the other Areas or into the territory of either Contracting State, and the deposit is exploitable from either side of the boundary line, then the Contracting States must seek to reach an agreement on the most effective manner of exploitation and an equitable sharing of any consequential benefits: see Art. 20.
- These companies included Shell, BP, BHP, Western Mining Corporation and Woodside Petroleum.
- Petroleum (Submerged Lands) Acts 1967 (Cth & W.A.) superseded by the Petroleum (Submerged Lands) Acts 1982 (Cth & W.A.).
- Those areas are currently designated NT/P4, NT/P8, NT/P11, NT/P12, WA/36P, WA/33P and WA/74P.
- This is permit no. NT/P12.
- See Australian Financial Review (Sydney), November 10, 1989.
- Ibid.
- The tax imposed by the Petroleum Resource Rent Tax Act 1987 (Cth).
- Art. 4(1)(b). The Treaty specifies that 10 per cent, gross of the tax amounts to 16 per cent, net, calculated on the basis of a maximum rate of general company tax being payable by corporations making payments under the Petroleum Resource Rent Tax Act 1987.
- Art. 4(1)(a).
- Art. 4(2)(b). The Indonesian tax is that imposed by Indonesian Laws No. 7 of 1983 and No. 6 of 1983 on General Tax Provisions and Procedures: see Art. 1(1)(d).
- Art. 4(2)(a). The Contracting States have also agreed to put in place the necessary administrative arrangements to effect the stipulated revenue-sharing and related arrangements for Areas B and C: see Art. 4(5).
- Art. 4(3) and (4).
- See The Australian (Sydney), December 29, 1989. This claim has been rejected out of hand by Australian government officials: see The Australian (Sydney), December 30, 1989.
- Arts. 3(1), 5(1) and 7(1).
- Art. 6(1).
- Art. 8.
- See generally, K. Brennan, “Australia and the Law of the Sea—The International Sea-Bed” in K.W. Ryan, ed., International Law in Australia (2nd edn.) (Law Book Co., 1984), Ch. 17.
- Art. 1(1)(j).
- See Annex C and infra 137–8.
- Art. 3(1) and (2).
- Art. 5(2), (3) and (4).
- Art. 5(5).
- Art. 6(1).
- Art. 6(2).
- The Age (Melbourne), December 12, 1989 and Australian Financial Review (Sydney), November 10, 1989.
- Art. 7(1).
- It is envisaged that the operations of the Joint Authority will be financed primarily from fees collected under Part VI of the Petroleum Mining Code together with any advances from the Contracting States, which are thought necessary: see generally, Art. 11.
- Art. 9(1).
- Art. 7(2).
- Art. 8(j)
- Art. 18(1)(b).
- Art. 19 and also s. 5.2 of the Model Petroleum Sharing Contract.
- No. 41 of 1983 (as amended).
- No. 101 of 1981 (ad amended). There is also other Commonwealth legislation which is restricted to pollution affecting the Australian coastline and its territorial waters: see for example, the Protection of the Sea (Civil Liability) Act 1981 (Cth) (No. 32 of 1981) and generally R.D. Lumb, “Australian Coastal Jurisdiction” in Ryan, op. cit., 388–389. Note also the Protection of the Sea (Powers of Intervention) Act 1981 (Cth) (No. 33 of 1981). The States also have legislation enacted pursuant to the 1983 Commonwealth legislation: see for instance, the Pollution of Waters by Oil and Noxious Substances Act 1987 (W.A.) (No. 14 of 1987) which covers pollution in “State waters” which extend to the limit of the Australian territorial sea adjacent to the State but no further.
- Art. 22.
- See s. 15.6 of the Model Petroleum Sharing Contract.
- Art. 23(5)(c).
- Art. 24. “Good oilfield practice” has been agreed to mean “all those things that are generally accepted as good and safe in the carrying on of petroleum operations”: see Art. 1(1)(f). This definition is so delightfully vague as to be entirely unhelpful: for instance, generally accepted by whom—the Contracting States? the Contractors? or the Industry? “Good” in what sense?
- Art.” 24(1), (2) and (3).
- The Age (Melbourne), December 12, 1989.
- Art. 24(4).
- It is interesting that the clause is expressed in terms of nationality not race, which would seem to focus attention upon employment differences between Australian and Indonesian workers but not cover discrimination among different races within each national class.
- A structure for these purposes means “any installation or structure used to carry out petroleum operations”: see Art. 1(1)(1).
- Art. 27(1). If a person happens to be a national of one Contracting State but a permanent resident of the other Contracting State, it will be the criminal law of the country of nationality which will apply.
- Art. 27(2)(a). In such cases, there will be consultation between the Contracting States to decide which country's laws should be applied having regard to the victim's nationality and which Country's interests are most affected by the alleged office: see Art. 27(2)(b).
- As the Zone of Cooperation is adjacent to both Western Australia and the Northern Territory, see in particular the Crimes (Offences at Sea) Act 1979 (W.A.) and Criminal Law (Offences at Sea) Act 1978 (N.T.).
- No. 17 of 1979. For a detailed discussion of this legislation, see Lumb, op. cit., 373, and 386–387 and C. Saunders, “Maritime Crime” (1979) 12 Melbourne University Law Review 158.
- Art. 28.
- Art. 29(1).
- Art. 29(2).
- Art. 29(3). See further, infra 140–1.
- Art. 30(1).
- Art. 30(2). Each Contracting State has also agreed to facilitate the enforcement in its courts of any arbitral award made in consequence of such an arbitration.
- See S. 12 of the Model Production Sharing Contract.
- Art. 33. The Treaty, however, does not expressly provide for termination or suspension in the event of a material breach by one Contracting State: cp. the Vienna Convention on the Law of Treaties, Art. 60. Indonesia has not ratified this Convention so it cannot govern the operation of the Treaty.
- Art. 34.
- N.D. Campbell, “Australian Treaty Practice and Procedure” in K.W. Ryan, op. cit., Ch. 3.
- It is noteworthy that Portugal, which still asserts a territorial claim to East Timor, has already made a strong protest to Australia against the signing of the Treaty, which the Portuguese Foreign Minister has described as a “flagrant violation of international law and the UN Charter”: see The Age (Melbourne), December 14, 1989. It has been reported that Portugal may attempt to take the issue to the International Court of Justice: see The Sunday Age (Melbourne), December 24, 1989. In support of the Portuguese position that the Treaty violates international law, it has recently been argued that because the original annexation of East Timor by Indonesia was illegal, the Treaty, which undoubtedly proceeds upon the premise that Indonesia has sovereignty over the territory of East Timor and its offshore regions, is equally unlawful under international law. It is pointed out that the United Nations still recognises Portugal as the “administering power” for East Timor and that there are existing declarations by the UN General Assembly and the Security Council to the effect that the annexation was illegal. So it is argued that as the Vienna Convention on the Law of Treaties, which both Australia and Indonesia have signed, declares void Treaties executed in contravention of international law, this Treaty is a nullity: see further The Sunday Age (Melbourne), December 31,1989. The reliance in this argument on the Vienna Convention ignores the fact that it does not apply as Indonesia has not ratified the Convention. This may not be fatal to the argument if customary international law is to the same effect on this question. This aspect aside, the question of whether the International Court would have jurisdiction to determine the matter at the suit of Portugal remains.
- The Code is Annex B to the Treaty. Hereafter it will be referred to in footnotes as “PMC”.
- The form and content of the contracts must be generally consistent with the Model Production Sharing Contract in Annex C to the Treaty and see also PMC, Arts. 5 and 6.
- PMC, Art. 4(1).
- See Model Production Sharing Contract, ss. 6, 7, and 8 for details of the manner of calculation of the parties’ respective production shares. Except when the Joint Authority undertakes the marketing, the contract also requires the contractor to pay the Joint Authority in advance for the estimated value of the Authority's share with provisions for annual adjustments and cash settlements based upon the actual quantities to which each of the parties was entitled.
- PMC, Art. 4(3). Ownership of the Joint Authority's production share remains with it, but it may authorise a contractor to market it on the Authority's behalf.
- PMC, Art. 32.
- Ibid.
- Ibid., Art. 33.
- Ibid.
- Ibid., Art. 2.
- Those invitations must be published in both the Australian and Indonesian Government gazettes and “in such other ways as the Joint Authority decides”: see PMC, Art. 8.
- PMC, Art. 10(1). A fee of US$3,000 must also accompany the application: Art. 10(3) and Art. 44.
- Ibid., Art. 10(2).
- Ibid, Art. 9. The Joint Authority must make available to applicants details of the bidding system. Moreover, it will be required to make and publish formal guidelines which clearly state the relevant criteria upon which contracts will be offered for that bidding round: Art. 11.
- Ibid., Art. 11.
- Ibid.
- Ibid., Art. 14.
- Ibid., Art. 15.
- Ibid., Art. 16.
- Ibid., Art. 20.
- Ibid., Art. 21.
- Ibid.
- Save where the contract is terminated in accordance with Art. 48 of the PMC, or ss. 2.2 or 13 of the Model Contract.
- Surrendered blocks are to be taken into account in calculating the relinquishment obligations of a contractor: see PMC, Art. 23.
- PMC, Art. 48.
- Ibid.
- Ibid., Art. 43.
- Taxation Code, Art. 3.
- A “person” is defined to include an individual, a company and any other body of persons: see Taxation Code, Art. 1(f).
- For the definition of “resident” see Art. 1(2), (3), and (4) of the Treaty.
- Taxation Code, Art. 4.
- Ibid., Art. 5.
- Ibid., Art. 6. But the interest will be taken into account in determining any foreign tax credit to which the recipient is entitled.
- Ibid., Art. 7.
- Ibid., Arts. 8, 9, 10 and 11.
- Ibid., Art. 12.
- Ibid., Art. 13.
Journal of Energy & Natural Resources Law
Volume 8, 1990 - Issue 1-4