Cbo9780511997341 011

10
Law of the sea
10.1 Introduction
The international law of the sea has developed over many hundreds of years. Modern
principles can be traced back to the 17th-century debate between Grotius and Selden
over whether or not nations had the right to control areas of the sea.1 The main
concern at that time was over access to fishing grounds and trading routes; today’s
maritime interests have expanded to include the laying of submarine cables, mining
of deep seabed resources, control of people smuggling and other transnational crimes,
maintenance of national security, and conservation of high seas biodiversity, to name
a few. Although many of the principles of customary international law in this area are
well established, the law of the sea is today dominated by the 1982 United Nations
Convention on the Law of the Sea (LOSC),2 a monumental agreement that provides the
framework for international cooperation in maritime areas.
10.1.1 Freedom of the seas

The current framework of maritime zones, which define the relative rights and obliga-
tions of coastal and other States, has evolved against the background of a longstanding
tension between States wishing to exercise control over parts of the high seas and those
seeking to maintain free access. As O’Connell states:
The history of the law of the sea has been dominated by a central and persistent theme: the
competition between the exercise of governmental authority over the sea and the idea of
1 Hugo Grotius, Mare Liberum (1609); John Selden, Mare Clausum (1635).
2 [1994] ATS 31.
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502 INTERNATIONAL LAW
freedom of the seas. The tension between these has waxed and waned through the centuries,
and has reflected the political, strategic and economic circumstances of each particular age.3
The 17th-century debate between Grotius and Selden, and its later evolution, are dealt
with by Shearer in the following extract.
I. A. Shearer, Starke’s International Law, 11th edn, Butterworths,

London, 1994
[218] Initially, navigation on the high seas was open to everybody as were also fisheries,
but in the fifteenth and sixteenth [219] centuries – the periods of great maritime
discovery by European navigators – claims were laid by the powerful maritime states
to the exercise of sovereignty, indistinguishable from ownership, over specific portions
of the open sea. For example, Portugal claimed maritime sovereignty over the whole
of the Indian Ocean and a very great proportion of the Atlantic, Spain arrogated rights
to herself over the Pacific and the Gulf of Mexico, and even Great Britain laid claim to
the Narrow Seas and the North Sea.
Grotius was one of the first strenuously to attack these extensive claims to sovereignty.
His objections were based predominantly upon two grounds:
1. No ocean can be the property of a nation because it is impossible for any nation effectively
to take it into possession by occupation.
2. Nature does not give a right to anybody to appropriate things that may be used by everybody
and are exhaustible – in other words, the open sea is a res gentium or res extra commercium.
In opposition to the principle of maritime sovereignty, the principle of the ‘freedom of

the high seas’ (or ‘freedom of the open sea’) began to develop, in accordance with the
mutual and obvious interests of the maritime nations. It was appreciated that too often,
and to the great inconvenience of all states, conflicting claims were laid to the same
parts of the open sea. Furthermore, it came to be realised that any claims to maritime
sovereignty were of little practical value except in time of war when it was useless to
assert them without the backing of a powerful navy. The freedom of the open sea was
thus seen to correspond to the general interests of all states, particularly as regards
freedom of intercourse between nations . . .
As a measure of necessary control, it was early established that all vessels, public or
private, on the high seas were subject to the jurisdiction (in general, exclusive), and
entitled to the protection, of the state under the maritime flag of [220] which they
might sail. From this, there logically followed a number of corollary rules, namely, that
in general no state might exercise jurisdiction over ships at sea not bearing its flag,
that no ship might sail under a particular flag without proper authority from the flag
state, nor under a flag other than the one which it was duly authorised to raise. Vessels
sailing under an unauthorised flag were liable to capture and confiscation by the state
whose flag had been wrongfully raised and the warships of any state might call on
suspicious vessels to show their flag. If there was reasonable suspicion for suspecting
3 D. P. O’Connell, The International Law of the Sea, vol. I., Clarendon Press, Oxford, 1982, p 1.
LAW OF THE SEA 503
that a vessel was engaged in piracy or the slave trade, it might be boarded, and, if
necessary, searched.
Notes
1. Grotius’ Mare Liberum (1609) was initially part of a legal advice written for the Dutch
East India Company, which was fighting against Portuguese attempts to block its access
to certain trading routes. Later, the English prohibited fishing in sea areas over which they
claimed sovereignty, and Grotius was called in to defend the Dutch rights to fish.
2. John Selden (Mare Clausum, 1635) was one of a number of scholars who set out to refute
Grotius’ arguments. Selden and others argued against freedom of the seas on theological
grounds. He argued that regarding the sea as common property was contrary to the Bible.
God had instructed man to ‘subdue the earth and rule over the fish’, which he interpreted
as requiring the sea to be divided up as property.
3. Another idea to develop early was the need for coastal States to have special rights in the
waters immediately adjacent to their coastline. This was so that they could protect them-
selves. By the 18th century it was an established rule that coastal States had sovereignty
over a ‘territorial sea’, but subject to a right of innocent passage by other nations’ vessels.
Although the idea of the territorial sea was well established, the width of this maritime
belt has been the subject of debate at various times. Early texts talk of the ‘cannon-shot
rule’, associated with that period in history during which a State could have sovereignty
over sea areas so long as it could effectively preclude others (i.e. the placement of cannons
along the coast would allow the State to control territory seawards to that distance). At
some stage this was translated into a three-nautical-mile rule, which remained generally
in favour until mid last century, although never completely accepted.4
10.1.2 Codification
Various attempts were made to codify the law of the sea prior to the negotiation of
the 1982 LOSC. In 1930, the League of Nations called a conference at The Hague to
determine, inter alia, the rules relating to the territorial sea. However, the confer-
ence failed to reach agreement on a three-nautical-mile territorial sea and fisheries
limit.
The topic was revisited by the UN in the 1950s when it asked the International Law
Commission (ILC) to prepare a law of the sea convention. In 1958, the UN General
Assembly convened a special conference to consider the ILC’s draft convention. The
conference divided its work among four committees, which ultimately led to four
conventions: the Convention on the High Seas, the Convention on the Territorial Sea and
the Contiguous Zone, the Convention on the Continental Shelf and the Convention on
Fishing and Conservation of the Living Resources of the High Seas.5
The 1958 Conventions varied in terms of the level of support each attracted. They
also failed to determine important issues such as the width of the territorial sea. A
4 See Wyndham L Walker, ‘Territorial Waters: The Cannon Shot Rule’ (1945) 22 British Yearbook of International
Law 210.
5 1958 Convention on the High Seas [1963] ATS 12; 1958 Convention on the Territorial Sea and the Contiguous Zone
[1963] ATS 12; 1958 Convention on the Continental Shelf [1963] ATS 12; 1958 Convention on Fishing and Conservation
of the Living Resources of the High Seas [1963] ATS 12.
second United Nations Conference of the Law of the Sea in 1960 made little progress.
To some extent, the 1958 Conventions had already been overtaken by external factors,
including decolonisation, increasing concern over resource security and the environ-
ment, and debates over the ownership of deep seabed resources. The wheels were set
in motion for a third United Nations Conference on the Law of the Sea.
That Conference, known as ‘UNCLOS III’, held 11 negotiating sessions between 1973
and 1982. The resulting Convention, the LOSC, was signed by 119 States at Montego
Bay, Jamaica, in December 1982. One of the reasons for the lengthy negotiations was
the ‘consensus approach’ adopted by the Conference. Trying to avoid some of the
difficulties faced in 1958, the delegates agreed that every effort should be made to
achieve consensus on each provision and a vote would only be taken as a matter of
last resort. The LOSC was also negotiated as a ‘package deal’. States either accept all of
the obligations or none of them; reservations or exceptions are only permitted so far
as the Convention expressly allows.6
The LOSC is a remarkable achievement. According to the President of UNCLOS
III, the Convention’s major accomplishments include: its comprehensive treatment of
the many uses and resources of the oceans; the balancing of competing interests of all
nations; the interrelatedness of the provisions and the ‘package deal’; the incorporation
of new and important concepts such as transit passage and an expanded notion of the
continental shelf; and the designation of the resources of the deep seabed as common
heritage.7
10.2 Maritime zones
10.2.1 Introduction
Maritime zones are the basis for defining coastal and maritime jurisdiction, thereby
balancing the various interests of coastal and other States in maritime areas. For each
zone, rights and responsibilities are defined for coastal States and other States. In
general, as shown in Figure 2, the rights of coastal States diminish and the rights of
other States increase as one moves from zone to zone away from the coastline.
Maritime zones are generated by all land territory (any naturally formed features
that are above water at high tide). The only exception under the LOSC is for rocks that
cannot sustain human habitation or an economic life of their own.8 Although giving rise
to a territorial sea, such rocks will not support the broader continental shelf/exclusive
economic zones (EEZ). As well as the maritime zones extending from the Australian
mainland and Tasmania, Australia asserts control over marine resources in the zones
surrounding all of its offshore territories: Christmas Island, Cocos (Keeling) Island,
Ashmore and Cartier Islands, Coral Sea Islands, Norfolk Island, Heard and McDonald
Islands, and the Australian Antarctic Territory.9
The exercise of control over maritime zones in Australia is complicated by the
federal system of government, with regulatory power and responsibility for maritime
6 LOSC [1994] ATS 31, art 309; see for example art 298.
7 Closing Statement by the President, Mr T. T. B. Koh, at the 193rd meeting of the Third United Nations Conference
on the Law of the Sea, 10 December 1982, UN Doc. A/CONF.62/SR193, para 44–55.
8 LOSC [1994] ATS 31, art 121.
9 A map of Australia’s maritime zones can be downloaded from the Geoscience Australia website at
<www.ga.gov.au>.
LAW OF THE SEA 505
territorial sea contiguous zone high seas

12 nm 12 nm
land
exclusive economic zone
B
A
S
E continental shelf
L
I 200 nm
N extended deep
E continental
shelf * sea
* Maximum 350 nautical miles (nm) from baseline or 100 nm from the 2500 m isobath
Figure 2: Maritime zones
areas divided between the Commonwealth Government and those of the states. For
more than 50 years after Federation, it was widely assumed that the states controlled
an adjacent three-nautical-mile territorial sea, although it was also generally thought
that the states had no power to legislate beyond three nautical miles.10 There was no
pressing need to reconsider the issue of control of maritime areas until the late 1960s
and the discovery of offshore petroleum deposits.
The issue came to a head in 1973 with the passing of the Seas and Submerged
Lands Act 1973 (Cth). In this legislation, the Commonwealth asserted that it owned
and controlled all of the territorial sea and continental shelf adjacent to the Australian
coastline. The legislation was challenged by the states in the Seas and Submerged Lands
Act Case,11 with the High Court ultimately upholding its validity.
Seas and Submerged Lands Act 1973 (Cth)

s 6 Sovereignty in respect of territorial sea
It is by this Act declared and enacted that the sovereignty in respect of the territorial
sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested
in and exercisable by the Crown in right of the Commonwealth . . .
s 10 Sovereignty in respect of internal waters
It is by this Act declared and enacted that the sovereignty in respect of the inter-
nal waters of Australia (that is to say, any waters of the sea on the landward side
of the baseline of the territorial sea) so far as they extend from time to time, and
in respect of the airspace over those waters and in respect of the sea-bed and sub-
soil beneath those waters, is vested in and exercisable by the Crown in right of the
Commonwealth.
10 The power of the states to legislate extraterritorially was not confirmed until the High Court case of Robinson v
The Western Australian Museum [1977] HCA 46.
11 NSW v Commonwealth [1975] HCA 58.
s 11 Sovereign rights in respect of continental shelf
It is by this Act declared and enacted that the sovereign rights of Australia as a coastal
State in respect of the continental shelf of Australia, for the purpose of exploring it and
exploiting its natural resources, are vested in and exercisable by the Crown in right of
the Commonwealth . . .
s 14 Part II does not affect waters etc within State limits
Nothing in this Part affects sovereignty or sovereign rights in respect of any waters of
the sea that are waters of or within any bay, gulf, estuary, river, creek, inlet, port or
harbour and:
(a) were, on 1st January, 1901, within the limits of a State; and
(b) remain within the limits of the State;
or in respect of the airspace over, or in respect of the sea-bed or subsoil beneath, any
such waters.
New South Wales v Commonwealth [1975] HCA 58

BARWICK CJ
[10] The issues which arose from these pleadings and in the argument before the Court
were, first, is the Act a valid exercise of the legislative power given to the Parliament by
s 51, particularly by para (xxix) and by s 122 of the Constitution; secondly, did the States,
by reason of settlement as a colony of the Imperial Crown or by reason of the grant
of self-government, have in 1900 sovereign or proprietary rights in or legislative power
over (a) the territorial sea or (b) the continental shelf; thirdly, did either the enactment
of the Australian Constitution or the emergence of Australia as a nation state, vest in
Australia either or both the territorial sea and the continental shelf?
[11] The relationship of these issues each to other may not readily appear. But the
States sought to invalidate the Act by, amongst other things, their claim to ownership or
legislative power over the marginal seas adjacent to their coasts to the extent seaward of
three miles, with the soil subjacent thereto and the airspace superincumbent thereupon
and over the continental shelf and incline. Hence the second issue. The defendant
Commonwealth, by way of reply to such a claim of the States, asserted that if prior to
the enactment of the Constitution the States had such ownership or legislative power,
it passed to the Commonwealth at the inception of the Constitution or at latest on
Australia becoming an independent nation . . .
[13] . . . The [external affairs] power extends, in my opinion, to any affair which in its
nature is external to the continent of Australia and the island of Tasmania subject
always to the Constitution as a whole. For this purpose, the continent of Australia and
the island of Tasmania are, in my opinion, bounded by the low-water mark on the
coasts . . .
[46] For reasons which I expressed in Bonser v La Macchia [1969] HCA 31; (1969) 122
CLR 177 and in Reg v Bull (1974) 131 CLR, at p 219, and in what I have so far written
in these cases, I am of opinion that low water on the coasts of the colonies formed
LAW OF THE SEA 507
the relevant part of the boundary of each – islands specifically made part of a colony
excepted – and that no colony in 1900 had obtained any proprietary or legislative
or other rights over the territorial seas or the subjacent soil. These and their control
as such remained with the Imperial Government. Such territorial seas as washed the
shores of islands forming part of the colony are, in my opinion, in the same position as
the territorial waters washing the shores of the mainland of the colony.
[47] The third issue might properly be said not to arise if what I have already written is
acceptable. But I propose to express myself about it, as, in my opinion, it does provide
an opportunity of disposing of these cases upon grounds essentially involved in the
creation of a federation such as that for which the Australian Constitution provides . . .
[53] A consequence of creation of the Commonwealth under the Constitution and the
grant of the power with respect to external affairs was, in my opinion, to vest in the
Commonwealth any proprietary rights and legislative power which the colonies might
have had in or in relation to the territorial sea, seabed and airspace and continental shelf
and incline. Proprietary rights and legislative powers in these matters of international
concern would then coalesce and unite in the nation. That, in my opinion, was the
intendment of the Constitution. It is far easier to conclude that the Act of the Imperial
Parliament setting up the federal Constitution intended to vest such matters of inter-
national consequence in the new Commonwealth, withdrawing them from the former
colonies, than it was to decide that when an American State, already an independent
nation in possession of international rights, entered the Union, these rights became
vested in the United States. Yet that is received doctrine in the United States expressed
in decisions which have recently been affirmed: see United States v California [1947]
USSC 118; (1947) 332 US 19 (91 Law Ed 1889); United States v Texas (1950) 339
US 707 (94 Law Ed 1221); United States v Louisiana (1950) 339 US 699 (94 Law Ed
1216) and United States v Maine [1975] USSC 49; (1975) 420 US 515 (43 Law Ed 2d
363) . . .
[54] This result conforms, in my opinion, to an essential feature of a federation, namely,

that it is the nation and not the integers of the federation which must have the power
to protect and control as a national function the area of the marginal seas, the seabed
and airspace and the continental shelf and incline . . .
Notes
1. On the question of whether it was the Commonwealth or the states that had sovereignty
over the territorial sea, a majority of the High Court determined that it was the Com-
monwealth. Gibbs and Stephen JJ dissented, arguing that under common law the various
colonies had acquired a territorial sea and that Federation had not altered this position.
All judges agreed that control over the continental shelf fell to the Commonwealth.
2. Despite the legal victory, the Commonwealth found that, both politically and practically, it
was preferable for the territorial sea and internal waters to be controlled by the respective
states. In 1979, the Commonwealth Government and state and territory governments
therefore came to an agreement as to how responsibility and resources in the offshore
area should be shared. This agreement is known as the Offshore Constitutional Settlement
(OCS). Two pieces of legislation are central to the operation of the OCS: the Coastal Waters
(State Title) Act 1980 (Cth) and the Coastal Waters (State Powers) Act 1980 (Cth). The first
Act gives the states title to an area termed ‘coastal waters’: effectively all water landward of
the line that is three nautical miles from baselines. The limit of coastal waters is to remain at
three nautical miles even if the limits of the territorial sea are revised outwards, as occurred
in 1990. The second Act ensures that the states have concurrent legislative powers over
coastal waters, and the capacity to enact laws extending beyond the outer limits of coastal
waters in relation to certain matters including fisheries that the Commonwealth and state
have agreed are to be under state management. The practical effect of the OCS legislation
is to give the states primary responsibility within the three-nautical-mile limit, and the
Commonwealth primary responsibility in the area beyond. However, in relation to marine
resources that cross the jurisdictional divide, such as fisheries and petroleum, the situation
is complicated by various cooperative regimes.
3. Surprisingly, the question of whether certain waters are state or Commonwealth does
still occur from time to time. See, for example, the case of Connolly and Great Barrier
Reef Marine Park Authority and Far North Queensland Airwork Pty Ltd (Party Joined),12 in
which the Administrative Appeals Tribunal determined that Horseshoe Bay (on Magnetic
Island) was within the limits of Queensland and therefore not part of the Great Barrier Reef
Marine Park. This decision has generated considerable uncertainty over the application of
environmental controls to activities in this World Heritage Area.13
10.2.2 Baselines
Maritime zones are measured from baselines. The usual reference point for baselines
is the low-water line along the coast. For many coastlines, this will not cause problems,
however the particular geographical features of some coastlines require special rules.
These include deeply indented coastlines, islands with fringing reefs, river mouths
and bays.
1982 United Nations Convention on the Law of the Sea [1994] ATS 31
Article 5: Normal baseline
Except where otherwise provided in this Convention, the normal baseline for measuring
the breadth of the territorial sea is the low-water line along the coast as marked on
large-scale charts officially recognized by the coastal State.
Article 6: Reefs
In the case of islands situated on atolls or of islands having fringing reefs, the baseline
for measuring the breadth of the territorial sea is the seaward low-water line of the reef,
as shown by the appropriate symbol on charts officially recognized by the coastal State.
Article 7: Straight baselines
1. In localities where the coastline is deeply indented and cut into, or if there is a fringe
of islands along the coast in its immediate vicinity, the method of straight baselines
12 [2007] AATA 2098.

13 See Donald R. Rothwell and Brad Jessup, ‘The Limits of the Great Barrier Reef Marine Park: Defining Bays and
Redefining Regulatory Control’ (2009) 37 Federal Law Review 71.
LAW OF THE SEA 509
joining appropriate points may be employed in drawing the baseline from which the
breadth of the territorial sea is measured . . .
3. The drawing of straight baselines must not depart to any appreciable extent from
the general direction of the coast, and the sea areas lying within the lines must be
sufficiently closely linked to the land domain to be subject to the regime of internal
waters . . .
Notes
1. In addition to allowing the drawing of straight baselines across the mouths of rivers and
bays, art 7 permits straight baselines to be used where the coastline is highly indented
or fringed by islands. This rule was previously included in the 1958 Convention on the
Territorial Sea and Contiguous Zone,14 and reflects customary international law.
2. The customary rule was confirmed in the Anglo-Norwegian Fisheries Case.15 In that case,
Norway, whose coast is deeply indented and fringed with islands, had proclaimed a
fisheries zone. It had used straight baselines drawn from the seaward side of the fringing
islands. The resulting zone included areas where British fishing vessels had traditionally
operated and so Britain contested Norway’s proclamation in the International Court of
Justice (ICJ). The Court upheld the use of straight baselines in the circumstances. There
were two conditions, though: the baselines had to follow the general line of the coast, and
the sea areas on the landward side of the baselines had to be appropriate for treatment
as internal waters. These conditions are reflected in the details of art 7 of the LOSC.
3. Australia’s baselines, which were originally proclaimed in 1983, were revised in 2006 to
reflect the knowledge gained from improvements in mapping technology.16
4. Art 10 of the LOSC permits the drawing of straight baselines across the mouths of ‘historic
bays’ that would otherwise not qualify for such treatment. Australia proclaimed four historic
bays in South Australia in 1987: Anxious Bay, Encounter Bay, Lacepede Bay and Rivoli
Bay.17
10.2.3 Internal waters

Waters landward of the baseline are referred to as internal waters. They are effectively
part of the land territory of the coastal State and completely within its control.
Article 8: Internal waters
1. Except as provided in Part IV, waters on the landward side of the baseline of the
territorial sea form part of the internal waters of the State.
14 [1963] ATS 12.

15 Anglo-Norwegian Fisheries Case (United Kingdom v Norway) [1951] ICJ Reports 116.
16 Seas and Submerged Lands (Territorial Sea Baseline) Proclamation 2006 (15 February 2006).
17 19 March 1987, published in Commonwealth Gazette No. S57 (31 March 1987). These claims were also revised and
updated in 2006 by the Seas and Submerged Lands (Historic Bays) Proclamation 2006 (15 February 2006). Australia’s
proclamation of historic bays has been contested by the United States: see J. Ashley Roach and Robert W. Smith, US
Responses to Excessive Maritime Claims, 2nd edn, Martinus Nijhoff, Dordrecht, 1996.
2. Where the establishment of a straight baseline in accordance with the method set
forth in article 7 has the effect of enclosing as internal waters areas which had not
previously been considered as such, a right of innocent passage as provided in this
Convention shall exist in those waters.
Notes
1. Foreign vessels have no general right of access to the ports, waterways and rivers of a
coastal State. In practice such access is granted through bilateral agreements known as
treaties of ‘Friendship, Commerce and Navigation’.18
2. The historical exception to the above rule, allowing ships in distress access to a place
of refuge without first having to seek the express permission of the coastal State, has
been overtaken by State practice. Many coastal States are now unwilling to allow stricken
ships into port because of the potential environmental and economic hazards involved.
Resolutions of the International Maritime Organization (IMO) now recognise that granting
refuge to a ship in distress is a ‘political decision’ that involves balancing the advantages
of bringing the ship into port against the environmental risk of bringing the ship closer to
the coast.19
3. A coastal State has the right to apply local laws to foreign ships in its ports. In practice,
unless the matter is a very serious one and has implications for the coastal State, shipboard
incidents are generally left to be dealt with by the flag State.20
10.3 Territorial sea
10.3.1 Nature of the territorial sea

The maritime zone adjacent to a coastline is called the territorial sea. The notion of a
territorial sea is a longstanding one – since around the 16th century the right of States
to control activities in the waters off their coasts has been recognised. The exact nature
of those rights, and how far out to sea they extend, has evolved over centuries and is
now reflected in the LOSC.
Article 2: Legal status of the territorial sea, of the air space over the territorial sea and
of its bed and subsoil
1. The sovereignty of a coastal State extends, beyond its land territory and internal
waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent
belt of sea, described as the territorial sea.
18 For example see Basic Treaty of Friendship and Co-operation between Australia and Japan, and Protocol [1977]
ATS 19, art X.
19 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Resolution A, 949 (23) (2003).
20 See R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd edn, Manchester University Press, Manchester, 1999,
pp 65–9.
LAW OF THE SEA 511
2. This sovereignty extends to the air space over the territorial sea as well as to its bed
and subsoil.
3. The sovereignty over the territorial sea is exercised subject to this Convention and
to other rules of international law.
Article 3: Breadth of the territorial sea
Every State has the right to establish the breadth of its territorial sea up to a limit not
exceeding 12 nautical miles, measured from baselines determined in accordance with
this Convention.
Notes
1. In 1958 States managed to agree on the nature of the territorial sea, and so the provisions
of the 1958 Convention on the Territorial Sea and the Contiguous Zone21 are virtually
identical to those found in the LOSC. However, there was no commitment to the width of
the territorial sea. The 1958 conference failed marginally to achieve consensus on a three-
nautical-mile zone. At that time, the large maritime powers opposed a wide territorial sea,
instead preferring to retain as much of the oceans as high seas as possible. By 1982,
however, circumstances had changed and maritime States were keen to have greater
control over their adjacent waters.
2. Australia claims a 12-nautical-mile territorial sea (increased from three nautical miles
in 1990),22 although by agreement the territorial sea declared around some islands in
the Torres Strait remains at three nautical miles because of the proximity of Papua New
Guinea.23
10.3.2 Innocent passage

Navigation is one of the oldest uses of the ocean. It is of central importance to all
nations, but particularly so to Australia, geographically isolated and reliant on sea
passage for international trade. The rights of a coastal State to regulate navigation,
and the limits of those rights, depend upon the maritime zone through which passage
is sought.
In the territorial sea, navigational rights and obligations are determined by reference
to the concept of innocent passage. Pursuant to arts 17, 18 and 19 of the LOSC, foreign
ships have the right of innocent passage through a territorial sea so long as they proceed
continuously and expeditiously, and do not act in a way that is ‘prejudicial to the peace,
good order or security of the coastal State.’ The LOSC permits coastal States to regulate
various aspects of passage, and in some circumstances allows coastal States to suspend
the right of innocent passage altogether.
21 [1963] ATS 12.

22 Commonwealth Gazette No. S297 (13 November 1990).
23 Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime
Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters [1985]
ATS 4, arts 3–4.
Article 17: Right of innocent passage
Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the
right of innocent passage through the territorial sea.
Article 18: Meaning of passage
1. Passage means navigation through the territorial sea for the purpose of:
(a) traversing that sea without entering internal waters or calling at a roadstead or port facility
outside internal waters; or
(b) proceeding to or from internal waters or a call at such roadstead or port facility.
2. Passage shall be continuous and expeditious. However, passage includes stopping

and anchoring, but only in so far as the same are incidental to ordinary navigation or
are rendered necessary by force majeure or distress or for the purpose of rendering
assistance to persons, ships or aircraft in danger or distress.
Article 19: Meaning of innocent passage
1. Passage is innocent so long as it is not prejudicial to the peace, good order or security
of the coastal State. Such passage shall take place in conformity with this Convention
and with other rules of international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good

order or security of the coastal State if in the territorial sea it engages in any of the
following activities:
(a) any threat or use of force against the sovereignty, territorial integrity or political indepen-
dence of the coastal State, or in any other manner in violation of the principles of international
law embodied in the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or security of the
coastal State;
(d) any act of propaganda aimed at affecting the defence or security of the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary to the customs,
fiscal, immigration or sanitary laws and regulations of the coastal State;
(h) any act of wilful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other facilities or
installations of the coastal State;
(l) any other activity not having a direct bearing on passage.
LAW OF THE SEA 513
Article 20: Submarines and other underwater vehicles

In the territorial sea, submarines and other underwater vehicles are required to navigate
on the surface and to show their flag.
Article 21: Laws and regulations of the coastal State relating to innocent passage
1. The coastal State may adopt laws and regulations, in conformity with the provisions
of this Convention and other rules of international law, relating to innocent passage
through the territorial sea, in respect of all or any of the following:
(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities or installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and regulations of the coastal State;
(f) the preservation of the environment of the coastal State and the prevention, reduction and
control of pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State.
2. Such laws and regulations shall not apply to the design, construction, manning or
equipment of foreign ships unless they are giving effect to generally accepted interna-
tional rules or standards.
3. The coastal State shall give due publicity to all such laws and regulations.
4. Foreign ships exercising the right of innocent passage through the territorial sea
shall comply with all such laws and regulations and all generally accepted international
regulations relating to the prevention of collisions at sea.
Article 22: Sea lanes and traffic separation schemes in the territorial sea
1. The coastal State may, where necessary having regard to the safety of navigation,
require foreign ships exercising the right of innocent passage through its territorial sea
to use such sea lanes and traffic separation schemes as it may designate or prescribe
for the regulation of the passage of ships.
2. In particular, tankers, nuclear-powered ships and ships carrying nuclear or other

inherently dangerous or noxious substances or materials may be required to confine
their passage to such sea lanes.
3. In the designation of sea lanes and the prescription of traffic separation schemes
under this article, the coastal State shall take into account:
(a) the recommendations of the competent international organization;
(b) any channels customarily used for international navigation;
(c) the special characteristics of particular ships and channels; and
(d) the density of traffic.
4. The coastal State shall clearly indicate such sea lanes and traffic separation schemes
on charts to which due publicity shall be given.
Article 23: Foreign nuclear-powered ships and ships carrying nuclear or other inherently
dangerous or noxious substances
Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous
or noxious substances shall, when exercising the right of innocent passage through the
territorial sea, carry documents and observe special precautionary measures established
for such ships by international agreements.
Article 24: Duties of the coastal State

1. The coastal State shall not hamper the innocent passage of foreign ships through
the territorial sea except in accordance with this Convention. In particular, in the appli-
cation of this Convention or of any laws or regulations adopted in conformity with this
Convention, the coastal State shall not:
(a) impose requirements on foreign ships which have the practical effect of denying or impair-
ing the right of innocent passage; or
(b) discriminate in form or in fact against the ships of any State or against ships carrying cargoes
to, from or on behalf of any State.
2. The coastal State shall give appropriate publicity to any danger to navigation, of
which it has knowledge, within its territorial sea.
Article 25: Rights of protection of the coastal State

1. The coastal State may take the necessary steps in its territorial sea to prevent passage
which is not innocent.
2. In the case of ships proceeding to internal waters or a call at a port facility outside
internal waters, the coastal State also has the right to take the necessary steps to prevent
any breach of the conditions to which admission of those ships to internal waters or
such a call is subject.
3. The coastal State may, without discrimination in form or in fact among foreign ships,
suspend temporarily in specified areas of its territorial sea the innocent passage of
foreign ships if such suspension is essential for the protection of its security, includ-
ing weapons exercises. Such suspension shall take effect only after having been duly
published.
Notes
1. Article 24 clarifies that the duties of the coastal State in relation to the territorial sea are,
first, not to interfere with the innocent passage of foreign vessels, and second, to warn of
‘any danger to navigation, of which it has knowledge, within its territorial sea’. This latter
duty is a direct application of the Corfu Channel Case, discussed below.
2. In early 1992 Indonesia declared that its territorial sea was closed to the Lusitania Expresso,
a Portuguese-registered car ferry that had sailed from Lisbon, via Darwin, to engage in
protest activity in East Timor (which at that time was a province of Indonesia). When the
vessel entered Indonesian waters on 11 March, it was accompanied by two Indonesian
LAW OF THE SEA 515
naval vessels and asked to leave. It did so without incident. Do you think the intention to
engage in protest activity would render the Lusitania Expresso’s passage ‘non-innocent’?
Could the voyage of the Lusitania Expresso have been considered an act of propaganda?
What type of circumstances do you think would justify a State in suspending innocent
passage under art 25(3) of the LOSC?
3. On 26 August 2001 a Norwegian container ship, the MV Tampa, rescued over 400 people
from a sinking Indonesian-flagged vessel in the Eastern Indian Ocean. The following day,
as the Tampa headed to the nearby Australian territory of Christmas Island, Australia
announced that its territorial sea was closed to the ship. On 29 August the Tampa entered
the Christmas Island territorial sea, having declared itself to be in distress. It was then
boarded by Australian Defence Force Special Armed Services troops, who took control
of the vessel. The people who had been rescued were eventually transferred to Nauru
and New Zealand for refugee processing. Was the closure of Australia’s territorial sea a
legitimate exercise of its rights under the LOSC?
10.3.3 International straits

Special rules apply where the territorial sea is also classified as an international strait.
The ICJ in the Corfu Channel Case stated that the right of innocent passage cannot be
suspended in relation to an international strait.
Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Reports 4

[On 22 October 1946 a squadron of British warships proceeded northwards from Corfu
through the North Corfu Channel. Off the coast of Albania, and while in Albanian
territorial waters, two of the ships struck mines and were heavily damaged. It was not
alleged that Albania had laid the mines, but rather that Albania knew of the recently
laid minefield and nevertheless failed to warn shipping of the danger. Albania, in
return, argued that the United Kingdom had violated Albanian sovereignty because
the warships had not complied with the requirements of innocent passage. The ICJ
did not agree. The warships had not breached the rules of innocent passage (although
subsequent minesweeping operations were in violation of Albanian sovereignty).]
[28] It is, in the opinion of the Court, generally recognized and in accordance with
international custom, that States in time of peace have a right to send their warships
through straits used for international navigation between two parts of the high seas
without the previous authorization of a coastal State, provided that the passage is
innocent. Unless otherwise prescribed in an international convention, there is no right
for a coastal State to prohibit such passage through straits in time of peace.
The Albanian Government does not dispute that the North Corfu Channel is a strait
in the geographical sense; but it denies that this Channel belongs to the class of
international highways through which a right of passage exists, on the grounds that it
is only of secondary importance and not even a necessary route between two parts of
the high seas, and that it is used almost exclusively for local traffic to and from the ports
of Corfu and Saranda.
It may be asked whether the test is to be found in the volume of traffic passing
through the Strait or in its greater or lesser importance for international navigation. But
in the opinion of the Court the decisive criterion is rather its geographical situation as
connecting two parts of the high seas and the fact of its being used for international
navigation. Nor can it be decisive that this Strait is not a necessary route between two
parts of the high seas, but only an alternative passage between the Aegean and the
Adriatic Seas. It has nevertheless been a useful route for international maritime traffic. In
this respect, the agent of the United Kingdom Government gave the Court the following
information relating to the [29] period from April 1st 1936, to December 31st, 1937:
‘The following is the total number of ships putting in at the Port of Corfu after passing
through or just before passing through the Channel. During the period of one year
nine months, the total number of ships was 2884. The flags of the ships are Greek,
Italian, Roumanian, Yugoslav, French, Albanian and British. Clearly, very small vessels
are included, as the entries for Albanian vessels are high, and of course one vessel may
make several journeys, but 2884 ships for a period of one year nine months is quite a
large figure. These figures relate to vessels visited by the Customs at Corfu and so do
not include the large number of vessels which went through the Strait without calling
at Corfu at all.’ There were also regular sailings through the Strait by Greek vessels three
times weekly, by a British ship fortnightly, and by two Yugoslav vessels weekly and by
two others fortnightly. The Court is further informed that the British Navy has regularly
used this Channel for eighty years or more, and that it has also been used by the navies
of other States.
One fact of particular importance is that the North Corfu Channel constitutes a frontier
between Albania and Greece, that a part of it is wholly within the territorial waters of
these States, and that the Strait is of special importance to Greece by reason of the
traffic to and from the port of Corfu.
Having regard to these various considerations, the Court has arrived at the conclu-
sion that the North Corfu Channel should be considered as belonging to the class of
international highways through which passage cannot be prohibited by a coastal State
in time of peace.
This rule has been expanded upon in Part III of the LOSC – ‘Straits Used for International
Navigation’.
1982 United Nations Convention on the Law of the Sea

[1994] ATS 31
Article 34: Legal status of waters forming straits used for international navigation
1. The regime of passage through straits used for international navigation established
in this Part shall not in other respects affect the legal status of the waters forming
such straits or the exercise by the States bordering the straits of their sovereignty or
jurisdiction over such waters and their air space, bed and subsoil.
2. The sovereignty or jurisdiction of the States bordering the straits is exercised subject
to this Part and to other rules of international law.
LAW OF THE SEA 517
Article 37: Scope of this section
This section applies to straits which are used for international navigation between one
part of the high seas or an exclusive economic zone and another part of the high seas
or an exclusive economic zone.
Article 38: Right of transit passage
1. In straits referred to in article 37, all ships and aircraft enjoy the right of transit
passage, which shall not be impeded; except that, if the strait is formed by an island
of a State bordering the strait and its mainland, transit passage shall not apply if there
exists seaward of the island a route through the high seas or through an exclusive
economic zone of similar convenience with respect to navigational and hydrographical
characteristics.
2. Transit passage means the exercise in accordance with this Part of the freedom of
navigation and overflight solely for the purpose of continuous and expeditious transit
of the strait between one part of the high seas or an exclusive economic zone and
another part of the high seas or an exclusive economic zone. However, the requirement
of continuous and expeditious transit does not preclude passage through the strait for
the purpose of entering, leaving or returning from a State bordering the strait, subject
to the conditions of entry to that State.
3. Any activity which is not an exercise of the right of transit passage through a strait
remains subject to the other applicable provisions of this Convention.
Article 39: Duties of ships and aircraft during transit passage
1. Ships and aircraft, while exercising the right of transit passage, shall:
(a) proceed without delay through or over the strait;
(b) refrain from any threat or use of force against the sovereignty, territorial integrity or political
independence of States bordering the strait, or in any other manner in violation of the principles
of international law embodied in the Charter of the United Nations;
(c) refrain from any activities other than those incident to their normal modes of continuous
and expeditious transit unless rendered necessary by force majeure or by distress;
(d) comply with other relevant provisions of this Part.
2. Ships in transit passage shall:

(a) comply with generally accepted international regulations, procedures and practices for
safety at sea, including the International Regulations for Preventing Collisions at Sea;
(b) comply with generally accepted international regulations, procedures and practices for the
prevention, reduction and control of pollution from ships.
3. Aircraft in transit passage shall:

(a) observe the Rules of the Air established by the International Civil Aviation Organization as
they apply to civil aircraft; state aircraft will normally comply with such safety measures and will
at all times operate with due regard for the safety of navigation;
(b) at all times monitor the radio frequency assigned by the competent internationally desig-
nated air traffic control authority or the appropriate international distress radio frequency . . .
Article 42: Laws and regulations of States bordering straits relating to transit passage
1. Subject to the provisions of this section, States bordering straits may adopt laws
and regulations relating to transit passage through straits, in respect of all or any of the
following:
(a) the safety of navigation and the regulation of maritime traffic, as provided in article 41;
(b) the prevention, reduction and control of pollution, by giving effect to applicable interna-
tional regulations regarding the discharge of oil, oily wastes and other noxious substances in
the strait;
(c) with respect to fishing vessels, the prevention of fishing, including the stowage of fishing
gear;
(d) the loading or unloading of any commodity, currency or person in contravention of the
customs, fiscal, immigration or sanitary laws and regulations of States bordering straits.
2. Such laws and regulations shall not discriminate in form or in fact among foreign
ships or in their application have the practical effect of denying, hampering or impairing
the right of transit passage as defined in this section.
3. States bordering straits shall give due publicity to all such laws and regulations.
4. Foreign ships exercising the right of transit passage shall comply with such laws and
regulations.
5. The flag State of a ship or the State of registry of an aircraft entitled to sovereign
immunity which acts in a manner contrary to such laws and regulations or other pro-
visions of this Part shall bear international responsibility for any loss or damage which
results to States bordering straits . . .
Article 44: Duties of States bordering straits
States bordering straits shall not hamper transit passage and shall give appropriate
publicity to any danger to navigation or overflight within or over the strait of which they
have knowledge. There shall be no suspension of transit passage.
Notes
1. The introduction of a transit passage regime under the LOSC was due to the extension of
the territorial sea to 12 nautical miles, thereby eliminating high seas zones from interna-
tional straits that were less than 24 nautical miles wide (such as the Torres Strait).
2. The scope of permissible coastal State regulation is much narrower in relation to transit
passage (art 42) than in relation to innocent passage (art 21), and subject to important
limitations. Unlike innocent passage, which may be suspended on security grounds, the
right of transit passage cannot be suspended.24 In addition, vessels can undertake transit
passage in ‘normal’ mode. This allows for the use of normal equipment and procedures,
and would generally allow submarines to remain submerged rather than requiring them
to surface.25
24 LOSC [1994] ATS 31, art. 44.

25 Sam Bateman, ‘The Regime of Straits Transit Passage in the Asia Pacific: Political and Strategic Issues’, in Donald
R. Rothwell and Sam Bateman (eds), Navigational Rights and Freedoms and the New Law of the Sea, Martinus Nijhoff,
The Hague, 2000, p 94.
LAW OF THE SEA 519
3. Australia implemented a compulsory pilotage system in the Torres Strait and Great North
East Channel in 2006 in order to protect the sensitive marine environment from the threat
of maritime accidents and oil pollution. Although regarded as successful, the measure has
attracted some criticism internationally, with suggestions that it was not consistent with
the transit passage regime.26
10.3.4 Archipelagic waters

Another innovative and important regime introduced by the LOSC is that found in
Part IV which recognises ‘archipelagic States’. The definitions of archipelago and
archipelagic State are important.
Article 46: Use of terms
For the purposes of this Convention:
(a) ‘archipelagic State’ means a State constituted wholly by one or more archipelagos and may
include other islands;
(b) ‘archipelago’ means a group of islands, including parts of islands, interconnecting waters
and other natural features which are so closely interrelated that such islands, waters and
other natural features form an intrinsic geographical, economic and political entity, or which
historically have been regarded as such.
Subject to certain limitations, an archipelagic State is entitled to draw straight base-

lines joining ‘the outermost points of the outermost islands’,27 creating ‘archipelagic
waters’ within those baselines over which the State has sovereignty.28 Maritime zones
are drawn from the straight baselines,29 and closing lines for internal waters may be
designated in accordance with the usual rules.30 Within archipelagic waters, foreign
vessels are granted the right of innocent passage or the (broader) right of archipelagic
sea lanes passage.31
Article 52: Right of innocent passage
1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy
the right of innocent passage through archipelagic waters, in accordance with Part II,
section 3.
2. The archipelagic State may, without discrimination in form or in fact among foreign
ships, suspend temporarily in specified areas of its archipelagic waters the innocent
26 See Sam Bateman and Michael White, ‘Compulsory Pilotage in the Torres Strait: Overcoming Unacceptable Risks
to a Sensitive Marine Environment’ (2009) 40 Ocean Development and International Law 184, 184.
27 LOSC [1994] ATS 31, art 47.
28 LOSC [1994] ATS 31, art 49(1).
29 LOSC [1994] ATS 31, art 48.
30 LOSC [1994] ATS 31, art 50.
31 LOSC [1994] ATS 31, arts 52–53.
passage of foreign ships if such suspension is essential for the protection of its security.
Such suspension shall take effect only after having been duly published.
Article 53: Right of archipelagic sea lanes passage
1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for
the continuous and expeditious passage of foreign ships and aircraft through or over
its archipelagic waters and the adjacent territorial sea.
2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea
lanes and air routes.
3. Archipelagic sea lanes passage means the exercise in accordance with this Con-
vention of the rights of navigation and overflight in the normal mode solely for the
purpose of continuous, expeditious and unobstructed transit between one part of the
high seas or an exclusive economic zone and another part of the high seas or an
exclusive economic zone.
4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent
territorial sea and shall include all normal passage routes used as routes for international
navigation or overflight through or over archipelagic waters and, within such routes, so
far as ships are concerned, all normal navigational channels, provided that duplication
of routes of similar convenience between the same entry and exit points shall not be
necessary.
5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from
the entry points of passage routes to the exit points. Ships and aircraft in archipelagic
sea lanes passage shall not deviate more than 25 nautical miles to either side of such
axis lines during passage, provided that such ships and aircraft shall not navigate closer
to the coasts than 10 per cent of the distance between the nearest points on islands
bordering the sea lane.
6. An archipelagic State which designates sea lanes under this article may also prescribe
traffic separation schemes for the safe passage of ships through narrow channels in
such sea lanes.
7. An archipelagic State may, when circumstances require, after giving due publicity
thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or
traffic separation schemes previously designated or prescribed by it.
8. Such sea lanes and traffic separation schemes shall conform to generally accepted
international regulations.
9. In designating or substituting sea lanes or prescribing or substituting traffic separa-

tion schemes, an archipelagic State shall refer proposals to the competent international
organization with a view to their adoption. The organization may adopt only such sea
lanes and traffic separation schemes as may be agreed with the archipelagic State, after
which the archipelagic State may designate, prescribe or substitute them.
10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic
separation schemes designated or prescribed by it on charts to which due publicity
shall be given.
LAW OF THE SEA 521
11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic
separation schemes established in accordance with this article.
12. If an archipelagic State does not designate sea lanes or air routes, the right of
archipelagic sea lanes passage may be exercised through the routes normally used for
international navigation.
Notes
1. The LOSC generally limits the length of straight baselines that archipelagic States can use
to a maximum of 100 nautical miles (although up to three per cent may extend up to 125
nautical miles). It places a limit on the land-to-water ratio of an archipelagic State to the
range of 1:1 to 1:9. Further, the system of straight baselines cannot be applied so as to
isolate the territorial sea of another State from the high seas or EEZ.32
2. A number of States satisfy the requirements for archipelagic States, including Indonesia,
the Philippines, Fiji, Papua New Guinea, the Solomon Islands and Vanuatu.
3. Archipelagic sea lanes passage is equivalent to transit passage in terms of the navigational
rights afforded to transiting vessels. It is confined to archipelagic sea lanes, not simply
archipelagic waters. Sea lanes may be designated by the archipelagic State (in consultation
with the IMO)33 or, if none are designated, the right of passage applies along routes
normally used for international navigation.34
10.4 Contiguous zone
The contiguous zone is a maritime zone that abuts the territorial sea and provides a
‘buffer zone’ in which certain types of laws may be enforced by the coastal State. The
zone can extend a maximum of 24 nautical miles from baselines, and the types of laws
that it can be used to enforce are customs, fiscal, immigration and sanitary laws.
Article 33: Contiguous zone
1. In a zone contiguous to its territorial sea, described as the contiguous zone, the
coastal State may exercise the control necessary to:
(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations
within its territory or territorial sea;
(b) punish infringement of the above laws and regulations committed within its territory or
territorial sea.
2. The contiguous zone may not extend beyond 24 nautical miles from the baselines
from which the breadth of the territorial sea is measured.
32 LOSC [1994] ATS 31, art 47(1), (2) and (5).

33 LOSC [1994] ATS 31, art 53(9).
34 LOSC [1994] ATS 31, art 53(12).
Notes
1. Article 33 does not entitle the coastal State to actually apply the specified laws to the
contiguous zone; what it does is extend the area in which the coastal State can apprehend
and punish offenders for infringements of such laws that took place within its land territory
or territorial sea.
2. Australia declared a contiguous zone in 1994 through the insertion of Division 2A in the
Seas and Submerged Lands Act 1973 (Cth). The outer limits of the contiguous zone
(24 nautical miles from baselines) were declared by proclamation in 1999.35
10.5 Continental shelf
In geological terms, the continental shelf is the underwater extension of the continental
land mass. It typically consists of a gently sloping zone, extending seawards from the
coastline to a depth of approximately 150 metres below sea level. Beyond this, the
continental slope descends more steeply to the deep seabed. However, the creation of
a juridical continental shelf, for the purpose of governing resource extraction and other
uses, has proven to be problematic. The natural width of the shelf varies greatly from
State to State, in some cases extending hundreds of miles from the coastline (which is
the case for part of Australia’s continental shelf), while in other instances some coastal
States have very narrow continental shelves (often the case for small island States
created by volcanic eruptions). Likewise, the technical capacity to exploit continental
shelf resources has increased greatly over the last 60 or so years. The current definition
in art 76 attempts to balance the interests of States with varying natural endowments
of continental shelf, States with no coastline at all, and other users of the oceans.
Article 76: Definition of the continental shelf
1. The continental shelf of a coastal State comprises the seabed and subsoil of the
submarine areas that extend beyond its territorial sea throughout the natural prolon-
gation of its land territory to the outer edge of the continental margin, or to a distance
of 200 nautical miles from the baselines from which the breadth of the territorial sea is
measured where the outer edge of the continental margin does not extend up to that
distance.
2. The continental shelf of a coastal State shall not extend beyond the limits provided
for in paragraphs 4 to 6.
3. The continental margin comprises the submerged prolongation of the land mass of
the coastal State, and consists of the seabed and subsoil of the shelf, the slope and
the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil
thereof.
35 Seas and Submerged Lands (Limits of Contiguous Zone) Proclamation 1999 (31 March 1999).
LAW OF THE SEA 523
4. (a) For the purposes of this Convention, the coastal State shall establish the outer
edge of the continental margin wherever the margin extends beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured . . .
8. Information on the limits of the continental shelf beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured shall be submitted
by the coastal State to the Commission on the Limits of the Continental Shelf set up
under Annex II on the basis of equitable geographical representation. The Commission
shall make recommendations to coastal States on matters related to the establishment
of the outer limits of their continental shelf. The limits of the shelf established by a
coastal State on the basis of these recommendations shall be final and binding . . .
10. The provisions of this article are without prejudice to the question of delimitation
of the continental shelf between States with opposite or adjacent coasts.
Article 77: Rights of the coastal State over the continental shelf
1. The coastal State exercises over the continental shelf sovereign rights for the purpose
of exploring it and exploiting its natural resources.
2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal
State does not explore the continental shelf or exploit its natural resources, no one may
undertake these activities without the express consent of the coastal State.
3. The rights of the coastal State over the continental shelf do not depend on occupa-
tion, effective or notional, or on any express proclamation.
4. The natural resources referred to in this Part consist of the mineral and other non-
living resources of the seabed and subsoil together with living organisms belonging to
sedentary species, that is to say, organisms which, at the harvestable stage, either are
immobile on or under the seabed or are unable to move except in constant physical
contact with the seabed or the subsoil.
Article 78: Legal status of the superjacent waters and air space and the rights and
freedoms of other States
1. The rights of the coastal State over the continental shelf do not affect the legal status
of the superjacent waters or of the air space above those waters.
2. The exercise of the rights of the coastal State over the continental shelf must not
infringe or result in any unjustifiable interference with navigation and other rights and
freedoms of other States as provided for in this Convention.
Andrew Serdy, ‘Towards Certainty of Seabed Jurisdiction beyond 200

Nautical Miles from the Territorial Sea Baseline: Australia’s Submission
to the Commission on the Limits of the Continental Shelf’ (2005) 36
Ocean Development and International Law 201
[204] Australia’s Submission is only the third to have been placed before the Commis-
sion, following those of the Russian Federation and Brazil in December 2001 and May
2004, respectively.
The Eleventh Meeting of the States Parties to UNCLOS (SPLOS) decided in May 2001
to alter the starting date for the ten-year rule for submissions to the Commission, thus
substituting 13 May 2009 for any state for which the ten years would expire earlier.
This would have captured Australia, since the tenth anniversary of the entry into force
of UNCLOS fell for Australia on 16 November 2004. Despite the changed date, Australia
notified the other states parties to UNCLOS of its intention to adhere to the ten-year
rule . . .
There were a number of compelling reasons for Australia not to delay its submis-
sion even though the SPLOS decision opened this option for it. Many of these reasons
might equally make delay unattractive to any state in a position to make its submission
within ten years for the entry into force for it of UNCLOS. One is that the advance
of technology means that by 2009 older data that were still adequate for inclusion
in a 2004 submission may no longer be widely accepted, creating for the submit-
ting state the dilemma of having either to invest in costly new data acquisition and
recomputation of its boundaries or to submit to the Commission data that both it
and the Commission knows are suboptimal. Second, compilation of the submission is
no simple exercise, at least for states with large areas of extended continental shelf;
it requires long-term planning, including the maintenance of a critical mass of sci-
entific and legal expertise. A hiatus might mean that much of this expertise is lost
as critical staff are redeployed to other projects or leave the Government’s employ
altogether. Third, leaving aside the silence of UNCLOS about the consequences of
failure to submit within the ten-year timeframe, it should not be assumed that the
SPLOS decision is the functional equivalent of an amendment of the pertinent provi-
sion of UNCLOS. While the decision may be effective as a mutual waiver among the
states parties at the time of their rights with regard to submissions made outside ten
years but before 13 May 2009, it cannot bind any subsequently acceding or ratifying
state. At the time of the Eleventh Meeting there were 135 parties to UNCLOS, which
leaves a late submission potentially vulnerable to challenge by, or outer limits derived
from it non-opposable to, any of 60 or more states that has not expressly waived its
rights . . .
[205] The data submitted by Australia in support of its submission establish that the
outer edge of Australia’s continental margin extends beyond 200 miles from the ter-
ritorial sea baseline in ten discrete marine regions. Listed in alphabetical order, these
are:
r Argo
r
Australian Antarctic Territory
r Great Australian Bight
r Kerguelen Plateau
r
Lord Howe Rise
r Macquarie Ridge
r
Naturaliste Plateau
r
South Tasman Rise
r Three Kings Ridge
r
Wallaby and Exmouth Plateaux
LAW OF THE SEA 525
A separate section of the Executive Summary is devoted to each of those regions,

including a depiction of the outer limit of Australia’s continental shelf in each. A con-
solidated map of the outer limit derived by application of the rules of article 76 is
on page 7 of the Executive Summary, as required by the Commission’s Scientific and
Technical Guidelines. The existence, structure and content of the Executive Summary
are to some extent dictated by these Guidelines, which call for the submitting state
to supply an executive summary of its submission and list in it the provisions of arti-
cle 76 invoked in support of its submission, disclose any assistance rendered to it
by a member of the Commission in preparing the submission, identify disputes with
other states affecting the submission, and authenticate the maps, charts, and databases
presented.
Australia’s Executive Summary discloses assistance in preparation of the submission

from the Australian member of the Commission, Mr Phil Symonds, Manager of the
Law of the Sea Project in Geoscience Australia, an arm of the Australian Government
Department of Industry, Tourism and Resources.
In each of the ten regions where Australia has a continental shelf extending beyond
200 miles from the territorial sea baseline, Australia states that it invokes paragraphs
4(b) and 7 of article 76 to establish the outer edge of the submerged prolongation
of its landmass. As noted, it is paragraph 7 that provides for straight lines not exceed-
ing 60 miles to delineate the outer limit. The particular elements of paragraphs 4(a)
and 5 relied on by Australia, which are determinative of the points joined by the
construction of the paragraph 7 straight lines, vary from region to region and are spec-
ified in the [206] relevant section of the Executive Summary. Discussion of aspects
of paragraphs 6 and 10, which are not in their nature capable of being ‘invoked’
as such, yet are highly relevant to the submission in view of the number of ridges
and actual and potential delimitations mentioned, is confined to the main body of
the submission. The main body, however, has not been made public, though under
the Archives Act 1983 it can be expected to become accessible to researchers in
2035.
The sediment thickness criterion (paragraph 4(a)(i)) is the predominant basis of

Australia’s entitlement to a continental shelf extending beyond 200 miles from the
baseline (in terms of length of outer limits defined by them, as opposed to number
of turning points) only in the region of the Australian Antarctic Territory, but makes
a small contribution to the outer limit of a number of other regions. Most of the
outer limit is defined by reference to points lying 60 miles from the foot of slope
(paragraph 4(a)(ii)). The constraints of paragraph 5 (350 miles or 100 miles from
2500-meter isobath) confine the outer limit in some regions. Much of the outer
limit in the Kerguelen Plateau region is defined by points 100 miles beyond the
2500-meter isobath, as is part of that in the Naturaliste Plateau and Wallaby and
Exmouth Plateaux regions, while lines joining points 350 miles from the territorial
sea baseline truncate the legal continental shelf in the following regions: Australian
Antarctic Territory, Lord Howe Rise, Naturaliste Plateau, and Wallaby and Exmouth
Plateaux.
Notes
1. Prior to World War II, States were regarded as having some rights over their adjacent
continental shelves if they actually used and occupied the area, for example for mining.
Then in 1945, in a significant turning point for international practice in the area, President
Truman of the United States made the declaration extracted below.
Proclamation by the President with Respect to the Natural

Resources of the Subsoil and Sea Bed of the Continental Shelf
(28 September 1945)36
[45] WHEREAS the Government of the United States of America, aware of the long range
world-wide need for new sources of petroleum and other minerals, holds the view that
efforts to discover and make available new supplies of these resources should be encour-
aged; and
WHEREAS its competent experts are of the opinion that such resources underlie many
parts of the continental shelf off the coasts of the United States of America, and that with
modern technological progress their utilization is already practicable or will become so at
an early date; and
WHEREAS recognized jurisdiction over these resources is required in the interest of

their conservation and prudent utilization when and as development is undertaken;
and
WHEREAS it is the view of the Government of the United States that the exercise of
jurisdiction over the natural resources of the subsoil and sea bed of the continental
shelf by the contiguous nation is reasonable and just, since the effectiveness of mea-
sures to utilize or conserve these resources would be contingent upon cooperation and
protection from the shore, since the continental shelf may be regarded as an exten-
sion of the land-mass of the coastal nation and thus naturally appurtenant to it, since
these resources frequently form a seaward extension of a pool or deposit lying within
the territory, and since self-protection compels the coastal nation to keep close watch
over activities [46] off its shores which are of the nature necessary for utilization of these
resources;
Now, therefore, I, HARRY S. TRUMAN, President of the United States of America, do hereby
proclaim the following policy of the United States of America with respect to the natural
resources of the subsoil and sea bed of the continental shelf.
Having concern for the urgency of conserving and prudently utilizing its natural resources,
the Government of the United States regards the natural resources of the subsoil and sea
bed of the continental shelf beneath the high seas but contiguous to the coasts of the
United States as appertaining to the United States, subject to its jurisdiction and control.
In cases where the continental shelf extends to the shores of another State, or is shared
with an adjacent State, the boundary shall be determined by the United States and the
State concerned in accordance with equitable principles. The character as high seas of the
waters above the continental shelf and the right to their free and unimpeded navigation
are in no way thus affected . . .
36 Reproduced in (1946) 40 American Journal of International Law, Supplement: Official Documents 45–4.
LAW OF THE SEA 527
2. In the 1958 Convention on the Continental Shelf,37 the continental shelf was defined in
terms of the area that could be exploited:
the seabed and subsoil of the submarine areas adjacent to the coast but outside the
area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the
depth of the superjacent waters admits of the exploitation of the natural resources of
the said area . . . 38
However, technological improvements allowed operators to work at increasingly greater

depths, and consequently to continually expand a State’s jurisdiction.
3. As a starting point, to ensure uniformity with the EEZ regime, all States are entitled to a min-
imum 200-nautical-mile continental shelf, even if the physical shelf does not extend that
far. Practically, this means that any exploitation of seabed resources within 200 nautical
miles of the coast falls within the exclusive control of the relevant State, rather than becom-
ing subject to the complex and controversial regime established for the deep seabed.
4. States with continental shelves that physically extend beyond 200 nautical miles are
required to delineate the outer limits of their continental shelf in accordance with the
detailed rules set out in art 76 of the LOSC. A maximum breadth of 350 nautical miles
from baselines, or 100 nautical miles from the 2500-metre isobath, is allowed. States are
required to submit information regarding the outer limits of their extended continental
shelf to the Commission on the Limits of the Continental Shelf (CLCS).39 As discussed by
Serdy, Australia submitted its extended continental shelf data in November 2004, receiving
confirmation from the CLCS in April 2008. Although Australia submitted data in relation
to the continental shelf offshore the Australian Antarctic Territory, it requested that the
Commission not consider that part of the submission for the time being.
5. The coastal State has sovereign rights to explore and exploit seabed resources on the
continental shelf40 and the exclusive right to regulate drilling for all purposes.41
6. The principal obligations of coastal States regarding the continental shelf are: (a) not to
unjustifiably interfere with navigational and other freedoms allowed to foreign vessels
in the superjacent waters;42 and (b) to pay a contribution to the International Seabed
Authority (the body set up to regulate deep seabed mining) in relation to exploitation of
continental shelf resources beyond 200 nautical miles.43
7. The legal status of the waters and air space above the continental shelf are not affected by
a coastal State’s rights over the continental shelf. In particular, the right of foreign States
to lay submarine cables and pipelines is preserved by art 79.
10.6 Exclusive economic zone (EEZ)
The notion of an EEZ is a relatively recent one that gained momentum in the decade or
so prior to the conclusion of the LOSC. It arose principally out of the desire by coastal
States to have greater control over fisheries. It represents a compromise between the
demands of many developing States for a greater territorial sea and the reluctance
37 [1963] ATS 12.

38 Art 1.
39 As at 30 October 2009, 51 submissions have been made to the CLCS. Information on these submissions is available
on the CLCS website at <www.un.org/Depts/los/clcs new/commission submissions.htm>.
40 LOSC [1994] ATS 31, art 77.
41 LOSC [1994] ATS 31, art 81.
42 LOSC [1994] ATS 31, art 78.
43 LOSC [1994] ATS 31, art 82
of developed nations to reduce high seas freedoms, as the following extract from the
Fisheries Jurisdiction Case shows.
Fisheries Jurisdiction (United Kingdom v Iceland) (Merits)

[1974] ICJ Reports 3
[51] The breadth of the territorial sea was not defined by the 1958 Convention on the
Territorial Sea and the Contiguous Zone. It is true that Article 24 of this Convention
limits the contiguous zone to 12 miles ‘from the baseline from which the breadth of
the territorial sea is measured’. At the 1958 Conference, the main differences on the
breadth of the territorial sea were limited at the time to disagreements as to what
limit, not exceeding 12 miles, was the appropriate one. The question of the breadth of
the territorial sea and that of the extent of the coastal State’s fishery jurisdiction were
left unsettled at the 1958 Conference. These questions were referred to the Second
Conference on the Law of the Sea, held in 1960. Furthermore, the question of the
extent of the fisheries jurisdiction of the coastal State, which had constituted a serious
obstacle to the reaching of an agreement at the 1958 Conference, became gradually
separated from the notion of the territorial sea. This was a development which reflected
the increasing importance of fishery resources for all States.
[52] The 1960 Conference failed by one vote to adopt a text governing the two questions
of the breadth of the territorial sea and the extent of fishery rights. However, after that
Conference the law evolved through the practice of States on the basis of the debates
and near-agreements at the Conference. Two concepts have crystallized as customary
law in recent years arising out of the general consensus revealed at that Conference.
The first is the concept of the fishery zone, the area in which a State may claim exclusive
fishery jurisdiction independently of its territorial sea; the extension of that fishery zone
up to a 12-mile limit from the baselines appears now to be generally accepted. The
second is the concept of preferential rights of fishing in adjacent waters in favour of
the coastal State in a situation of special dependence on its coastal fisheries, this
preference operating in regard to other States concerned in the exploitation of the
same fisheries, and to be implemented in the way indicated in paragraph 57 below.
[53] In recent years the question of extending the coastal State’s fisheries jurisdiction
has come increasingly to the forefront. The Court is aware that a number of States has
asserted an extension of fishery limits. The Court is also aware of present endeavours,
pursued under the auspices of the United Nations, to achieve in a third Conference on
the Law of the Sea the further codification and progressive development of this branch
of the law, as it is of various proposals and preparatory documents produced in this
framework, which must be regarded as manifestations of the views and opinions of
individual States and as vehicles of their aspirations, rather than as expressing principles
of existing law. The very fact of convening the third Conference on the Law of the Sea
evidences a manifest desire on the part of all States to proceed to the codification of
that law on a universal basis, including the question of fisheries and conservation of
the living resources of the sea . . .
[58] State practice on the subject of fisheries reveals an increasing and widespread
acceptance of the concept of preferential rights for coastal States, particularly in favour
LAW OF THE SEA 529
of countries or territories in a situation of special dependence on coastal fisheries. Both

the 1958 Resolution and the 1960 joint amendment concerning preferential rights were
approved by a large majority of the Conferences, thus showing overwhelming support
for the idea that in certain special situations it was fair to recognize that the coastal
State had preferential fishing rights. After these Conferences, the preferential rights
of the coastal State were recognized in various bilateral and multilateral international
agreements . . .
In this case, because of Great Britain’s longstanding opposition to Iceland’s extended

fisheries claims, Iceland’s unilateral extension of its fisheries jurisdiction (to 50 nautical
miles from baselines) was not opposable to the United Kingdom. However, the ICJ did
recognise Iceland’s ‘special dependence’ upon its fisheries, entitling it to ‘a preferential
share’ of the resource, and directed the two countries to undertake further negotiations
in order to reach an equitable solution.
As the above extract from the Fisheries Jurisdiction Case shows, the question of
preferential fishing rights for coastal States and the notion of a ‘fisheries zone’ extending
beyond the territorial sea had been the subject of debate for a number of decades and
was one of the important outstanding issues that States hoped to resolve at UNCLOS
III. Negotiations at the Conference ultimately led to the inclusion of Part V of the LOSC,
on the EEZ, officially recognising a new maritime zone focused upon management and
conservation of the living resources within 200 nautical miles of the coast.
Once the EEZ had been incorporated in the draft Convention, it was rapidly adopted
through State practice – for example, with the declaration of fisheries zones – so that in
1982 the ICJ ruled that it was now a rule of customary international law, even though
the LOSC had not yet come into force:
Tunisia’s historic rights and titles are more nearly related to the concept of the exclusive
economic zone, which may be regarded as part of modern international law . . . 44
Article 55: Specific legal regime of the exclusive economic zone
The exclusive economic zone is an area beyond and adjacent to the territorial sea,
subject to the specific legal regime established in this Part, under which the rights
and jurisdiction of the coastal State and the rights and freedoms of other States are
governed by the relevant provisions of this Convention.
Article 56: Rights, jurisdiction and duties of the coastal State in the exclusive economic
zone
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, of the waters superjacent to the seabed and of
the seabed and its subsoil, and with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the water, currents and winds;
44 Case Concerning the Continental Shelf (Tunisia v Libyan Arab Jamahiriya) [1982] ICJ Reports 18, 74.
(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the exclu-
sive economic zone, the coastal State shall have due regard to the rights and duties of
other States and shall act in a manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the seabed and subsoil shall be
exercised in accordance with Part VI.
Article 57: Breadth of the exclusive economic zone
The exclusive economic zone shall not extend beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured.
Article 58: Rights and duties of other States in the exclusive economic zone
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy,
subject to the relevant provisions of this Convention, the freedoms referred to in article
87 of navigation and overflight and of the laying of submarine cables and pipelines, and
other internationally lawful uses of the sea related to these freedoms, such as those
associated with the operation of ships, aircraft and submarine cables and pipelines,
and compatible with the other provisions of this Convention . . .
3. In exercising their rights and performing their duties under this Convention in the
exclusive economic zone, States shall have due regard to the rights and duties of the
coastal State and shall comply with the laws and regulations adopted by the coastal
State in accordance with the provisions of this Convention and other rules of interna-
tional law in so far as they are not incompatible with this Part.
The LOSC greatly expanded coastal State control over fisheries because most com-
mercial fishing takes place within the 200-nautical-mile EEZ limit. The Convention
requires coastal States to manage the living resources of the EEZ in a sustainable
manner. Consider, however, the requirements of ‘maximum sustainable yield’ and
‘optimum utilization’ as expressed in arts 61 and 62.
Article 61: Conservation of the living resources
1. The coastal State shall determine the allowable catch of the living resources in its
exclusive economic zone.
2. The coastal State, taking into account the best scientific evidence available to it,
shall ensure through proper conservation and management measures that the main-
tenance of the living resources in the exclusive economic zone is not endangered by
over-exploitation. As appropriate, the coastal State and competent international orga-
nizations, whether subregional, regional or global, shall cooperate to this end.
LAW OF THE SEA 531
3. Such measures shall also be designed to maintain or restore populations of har-

vested species at levels which can produce the maximum sustainable yield, as qual-
ified by relevant environmental and economic factors, including the economic needs
of coastal fishing communities and the special requirements of developing States, and
taking into account fishing patterns, the interdependence of stocks and any gener-
ally recommended international minimum standards, whether subregional, regional or
global.
4. In taking such measures the coastal State shall take into consideration the effects
on species associated with or dependent upon harvested species with a view to main-
taining or restoring populations of such associated or dependent species above levels
at which their reproduction may become seriously threatened.
5. Available scientific information, catch and fishing effort statistics, and other data
relevant to the conservation of fish stocks, shall be contributed and exchanged on
a regular basis through competent international organizations, whether subregional,
regional or global, where appropriate and with participation by all States concerned,
including States whose nationals are allowed to fish in the exclusive economic
zone.
Article 62: Utilization of the living resources
1. The coastal State shall promote the objective of optimum utilization of the living
resources in the exclusive economic zone without prejudice to article 61.
2. The coastal State shall determine its capacity to harvest the living resources of the
exclusive economic zone. Where the coastal State does not have the capacity to harvest
the entire allowable catch, it shall, through agreements or other arrangements and
pursuant to the terms, conditions, laws and regulations referred to in paragraph 4,
give other States access to the surplus of the allowable catch, having particular regard
to the provisions of articles 69 and 70, especially in relation to the developing States
mentioned therein.
3. In giving access to other States to its exclusive economic zone under this arti-
cle, the coastal State shall take into account all relevant factors, including, inter alia,
the significance of the living resources of the area to the economy of the coastal
State concerned and its other national interests, the provisions of articles 69 and 70,
the requirements of developing States in the subregion or region in harvesting part of
the surplus and the need to minimize economic dislocation in States whose nationals
have habitually fished in the zone or which have made substantial efforts in research
and identification of stocks.
4. Nationals of other States fishing in the exclusive economic zone shall comply with
the conservation measures and with the other terms and conditions established in the
laws and regulations of the coastal State . . .
Notes
1. Fish, of course, do not understand the jurisdictional boundaries that have been created
through international agreement. The LOSC directs coastal and fishing States to cooperate
in the management and conservation of fish stocks, through appropriate organisations,
in situations where those fish stocks straddle the EEZs of two or more States, occur both
within an EEZ and the adjacent area of high seas, or are listed in the Convention as
‘highly migratory’.45 To assist with the implementation of such obligations, The United
Nations Agreement for the Implementation of the Provisions of the United Nations Con-
vention on the Law of the Sea of 10 December 1982 relating to the Conservation and
Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995 UN Fish
Stocks Agreement) was concluded in August 1995.46 The UN Fish Stocks Agreement
recognises regional fisheries management organisations (RFMOs) as the primary mech-
anism for allowing international cooperation in fisheries conservation and management.
For example, Australia is a member of the Western and Central Pacific Fisheries Commis-
sion, which was established in 200447 to manage all of the highly migratory fishstocks in
the Western and Central Pacific Ocean, including several species of tuna.
2. One particular exception to the general rules is in relation to marine mammals. Article 65
of the LOSC allows the coastal State to regulate their taking more strictly, and particularly
in relation to cetaceans, recognises the competence of existing international organisations.
Marine mammals
Nothing in this Part restricts the right of a coastal State or the competence of an
international organization, as appropriate, to prohibit, limit or regulate the exploitation
of marine mammals more strictly than provided for in this Part. States shall cooperate
with a view to the conservation of marine mammals and in the case of cetaceans
shall in particular work through the appropriate international organizations for their
conservation, management and study.
Australia has acted upon this Article through the creation of the Australian Whale Sanctuary,
under s 225 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
s 225 Australian Whale Sanctuary

1. The Australian Whale Sanctuary is established in order to give formal recognition of
the high level of protection and management afforded to cetaceans in Commonwealth
marine areas and prescribed waters.
2. The Australian Whale Sanctuary comprises:

(a) any waters of the sea inside the seaward boundary of the exclusive economic
zone, except:
(i) waters, rights in respect of which have been vested in a State by section 4
of the Coastal Waters (State Title) Act 1980 or in the Northern Territory by
section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and
(ii) waters within the limits of a State or the Northern Territory; and
(b) any waters over the continental shelf, except:
(i) waters, rights in respect of which have been vested in a State by section 4
of the Coastal Waters (State Title) Act 1980 or in the Northern Territory by
section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and
(ii) waters within the limits of a State or the Northern Territory; and
(c) so much of the coastal waters of a State or the Northern Territory as are pre-
scribed waters.
45 LOSC [1994] ATS 31, arts 63–64.

46 [2001] ATS 8.
47 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific
Ocean [2004] ATS 15.
LAW OF THE SEA 533
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) makes it an
offence to kill, injure or interfere with a whale in the Australian Whale Sanctuary.48
3. In relation to non-living resources of the EEZ, the provisions applicable to the continental
shelf are incorporated: Article 56(3).
4. Australia declared a 200-nautical-mile Australian Fishing Zone (AFZ) in 1979.49 In 1994,
following the entry into force of the LOSC, it took the further step of proclaiming the
200-nautical-mile EEZ.50 Although largely the same, in limited circumstances they operate
differently. For example, although an AFZ was declared off the coast of the Australian
Antarctic Territory in 1979, the waters were soon after declared ‘excepted waters’51 so
as not to jeopardise negotiations for the Convention on the Conservation of Antarctic
Marine Living Resources (CCAMLR).52 Although the EEZ was declared in 1994, the fishing
regime remains governed on the basis of the AFZ, so Australia does not assert control
over foreign fishing offshore the Australian Antarctic Territory. This may be contrasted with
control over the taking of whales in that area, which Australia asserts through the Aus-
tralian Whale Sanctuary under the Environment Protection and Biodiversity Conservation
Act 1999 (Cth).
10.7 The high seas
The high seas are defined as ‘all parts of the sea that are not included in the exclu-
sive economic zone, in the territorial waters or the internal waters of a State, or the
archipelagic waters of an archipelagic state.’53 The concept of the ‘freedom of the high
seas’ dates back at least to the time of Selden and Grotius and their debate about open
seas and closed seas. The debate was finally resolved by State practice in favour of ‘open
seas’, becoming an accepted part of customary international law and incorporated in
the 1958 Convention on the High Seas54 and later the LOSC.

[1994] ATS 31
Article 86: Application of the provisions of this Part
The provisions of this Part apply to all parts of the sea that are not included in the
exclusive economic zone, in the territorial sea or in the internal waters of a State,
or in the archipelagic waters of an archipelagic State. This article does not entail any
abridgement of the freedoms enjoyed by all States in the exclusive economic zone in
accordance with article 58.
48 Pursuant to ss 229–229C.
49 Proclamation Constituting Waters of 200 Nautical Miles around Australia and its External Territories Proclaimed
Waters for the Purposes of the Fisheries Act (20 September 1979), reproduced in W. M. Bush, Antarctica and
International Law, Oceana, Dobbs Ferry, NY, 1994, p 202.
50 Proclamation of 26 July 1994, Commonwealth Gazette No. S 290 (29 July 1994), entered into force 1 August 1994.
51 Proclamation Declaring Waters around the Australian Antarctic Territory to be Excepted Waters under the Fisheries
Act 1952 (31 October 1979), reproduced in W. M. Bush, Antarctica and International Law, Oceana, Dobbs Ferry, NY,
1994, p 208; continued by Proclamation of Excepted Waters under Section 11 of the Fisheries Management Act 1991,
Commonwealth Gazette No. S52 (14 February 1992).
52 [1982] ATS 9.
53 LOSC [1994] ATS 31, art 86.
54 Convention on the High Seas [1963] ATS 12.
Article 87: Freedom of the high seas
1. The high seas are open to all States, whether coastal or land-locked. Freedom of
the high seas is exercised under the conditions laid down by this Convention and by
other rules of international law. It comprises, inter alia, both for coastal and land-locked
States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international
law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the interests of
other States in their exercise of the freedom of the high seas, and also with due regard
for the rights under this Convention with respect to activities in the Area.
Article 88: Reservation of the high seas for peaceful purposes
The high seas shall be reserved for peaceful purposes.
Article 89: Invalidity of claims of sovereignty over the high seas
No State may validly purport to subject any part of the high seas to its sovereignty.
Notes
1. Freedom of the high seas incorporates a set of specific rights that are subject to conditions
laid down in the Convention and other rules of international law. The specific freedoms
recognised under the LOSC are the freedom of navigation, over flight, laying submarine
cables and pipelines, constructing artificial islands and other installations, fishing, and
scientific research.55
2. Jurisdiction on the high seas depends upon the notion of ‘flag states’, referring to the
flag of the State under which ships are registered. Ships may sail under only one flag
and are subject to the exclusive jurisdiction of that State while sailing on the high seas.56
Certain exceptions are recognised to this exclusive jurisdiction. In these limited situations,
interference with foreign ships on the high seas is permitted by international law: the slave
trade,57 piracy,58 drug trafficking,59 unauthorised broadcasting,60 and pollution resulting
from a collision on the high seas.61
55 Art 87(1).
56 LOSC [1994] ATS 31, art 92.
57 LOSC [1994] ATS 31, art 99.
58 LOSC [1994] ATS 31, art 100; see further discussion at 10.11 below.
59 LOSC [1994] ATS 31, art 108.
60 LOSC [1994] ATS 31, art 109.
61 LOSC [1994] ATS 31, art 221.
LAW OF THE SEA 535
3. A further exception is provided by the right of hot pursuit, which allows the governmental
ships of a coastal State to continue to pursue a vessel once it has left territorial waters.62
This right applies where the coastal State has good reason to believe that a foreign vessel
has violated its laws and regulations. Pursuit must commence in the internal waters, the
territorial sea or contiguous zone of the coastal State, and must be uninterrupted. The
right also applies to pursuits commenced in the EEZ/continental shelf zone in relation to
the violation of regulations that apply, under the LOSC, in that area. The right ceases as
soon as the foreign vessel enters the territorial waters of its own or a third State.
The extent of the right of hot pursuit is particularly important for Australia in the context
of enforcement activities against vessels suspected of illegally fishing for toothfish in the
Southern Ocean. On several occasions, Australia has called on the assistance of other
nations, particularly South Africa and France, in the apprehension of vessels that have
been fishing in the Australian EEZ surrounding Heard and McDonald Islands. This form
of ‘multilateral hot pursuit’ is critical to the success of enforcement operations against
illegal, unreported and unregulated (IUU) fishing in remote areas such as the Southern
Ocean.63 Australia and France have entered into a formal agreement aimed at enhancing
cooperative surveillance and scientific research in the vicinity of their Southern Ocean
territories, including an agreement to provide assistance to each other when engaged in
a hot pursuit.64
4. The high seas freedom of fishing is subject to LOSC provisions dealing with the conserva-
tion and management of living resources of that area. The emphasis is on cooperation in
the conservation of resources. Each State is made responsible for regulating the activities
of their nationals.65 States fishing for the same species or in the same region are obliged to
negotiate appropriate conservation measures, based upon the concept of maximum sus-
tainable yield, and are required to exchange scientific and catch information on a regular
basis.66 The 1995 UN Fish Stocks Agreement provides guidance on the implementation
of these obligations.67
10.8 The deep seabed
The final maritime zone referred to in the LOSC is ‘the Area’, defined as ‘the seabed
and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’,68 and
more commonly referred to as the deep seabed. Little consideration had been given
to ownership of the deep seabed until the 1960s, when exploitation of its mineral
resources first became a real possibility. In 1967, the Ambassador of Malta to the
UN, Arvid Pardo, proposed that the deep seabed and its resources beyond the limits
of national jurisdiction should be declared the ‘common heritage of mankind’ and
62 LOSC [1994] ATS 31, art 111.

63 See Erik Jaap Molenaar, ‘Multilateral Hot Pursuit and Illegal Fishing in the Southern Ocean: The Pursuits of Viarsa
1 and the South Tomi’ (2004) 19 The International Journal of Marine and Coastal Law 19.
64 Treaty between the Government of Australia and the Government of the French Republic on Cooperation in the Maritime
Areas Adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands [2005]
ATS 6.
65 LOSC [1994] ATS 31, art 117.
66 LOSC [1994] ATS 31, arts 118–119.
67 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of
10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish
Stocks [2001] ATS 8, in particular Part II.
68 LOSC [1994] ATS 31, art 1.
the returns distributed equitably among all nations. Industrialised nations argued that
‘freedom of the high seas’ should apply. The only problem for them was how to reconcile
this ‘freedom’ with the granting of exclusive mining rights to enable investment in deep
seabed mining to take place.
The compromise that was reached after more than a decade of negotiations is set
down in Part XI of the LOSC. The Convention confirms that the deep seabed (‘the Area’)
is the common heritage of mankind. Further, it sets up the International Seabed Author-
ity (ISA) to administer the Area and in particular the exploitation of mineral resources.
Article 136: Common heritage of mankind
The Area and its resources are the common heritage of mankind.
Article 137: Legal status of the Area and its resources
1. No State shall claim or exercise sovereignty or sovereign rights over any part of
the Area or its resources, nor shall any State or natural or juridical person appropriate
any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such
appropriation shall be recognized.
2. All rights in the resources of the Area are vested in mankind as a whole, on whose
behalf the Authority shall act. These resources are not subject to alienation. The minerals
recovered from the Area, however, may only be alienated in accordance with this Part
and the rules, regulations and procedures of the Authority.
3. No State or natural or juridical person shall claim, acquire or exercise rights with
respect to the minerals recovered from the Area except in accordance with this Part.
Otherwise, no such claim, acquisition or exercise of such rights shall be recognized.
Article 140: Benefit of mankind
1. Activities in the Area shall, as specifically provided for in this Part, be carried out for
the benefit of mankind as a whole, irrespective of the geographical location of States,
whether coastal or land-locked, and taking into particular consideration the interests
and needs of developing States and of peoples who have not attained full indepen-
dence or other self-governing status recognized by the United Nations in accordance
with General Assembly resolution 1514 (XV) and other relevant General Assembly
resolutions.
2. The Authority shall provide for the equitable sharing of financial and other economic
benefits derived from activities in the Area through any appropriate mechanism, on a
non-discriminatory basis, in accordance with article 160, paragraph 2(f)(i).
Notes
1. Prior to its incorporation in the LOSC, the common heritage concept was also referred to
in the 1967 Outer Space Treaty.69 Strong themes that underlie the concept include the
69 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon
and Other Celestial Bodies [1967] ATS 24; see further discussion in Chapter 6 at 6.9.
LAW OF THE SEA 537
idea that common heritage areas cannot be owned or appropriated by anyone, that such
areas be managed on behalf of all nations, and that benefits from resource exploitation
in common heritage areas must be distributed equitably.
2. The mining regime was to be a compromise between the desire of developed nations to
allow private exploitation, and the desire of developing nations that exploitation be carried
out by an ‘international company’ on their behalf. The result was the ‘parallel system’ –
developed countries were to provide the necessary financial and technological assistance
to a body set up under the LOSC and known as ‘the Enterprise’, in return for rights of
access to seabed resources on an equal footing with the Enterprise. Essentially, a country
or private interest wishing to commence seabed mining would have to submit a proposal
that would allow for two mining operations – one by itself, and one for the Enterprise.
3. Despite conclusion of the LOSC, many developed nations were dissatisfied with the regime
for deep seabed mining. This was a significant factor in the delay in the LOSC obtaining
the necessary number of ratifications for it to enter into force. Many countries, including
the United States, objected to various aspects of Part XI, including the ISA’s decision-
making processes, the ability for a Review Conference to be held and allow amendments
to the regime without the express approval of each State, and mandatory technology
transfer provisions. Subsequent negotiations led to a supplementary agreement, the 1994
Agreement Relating to the Implementation of Part XI of the United Nations Convention
on the Law of the Sea of 10 December 1982.70 The implementing Agreement dealt with
many of the objections of the developed nations and allowed greater ratification of the
LOSC itself.
10.9 Delimitation of maritime boundaries
Prior to the negotiation of the LOSC, delimitation of maritime boundaries, particularly

those involving opposite coastlines, was uncommon. However, with the general exten-
sion of territorial seas to 12 nautical miles, and the creation of an EEZ and rights over
continental shelf resources out to 200 nautical miles, a great number of States found
themselves in the position of having to negotiate maritime boundary delimitation
agreements. This necessitated the development of distinctive rules on the delimitation
of maritime boundaries.
Article 15: Delimitation of the territorial sea between States with opposite or adjacent
coasts
Where the coasts of two States are opposite or adjacent to each other, neither of the
two States is entitled, failing agreement between them to the contrary, to extend its
territorial sea beyond the median line every point of which is equidistant from the
nearest points on the baselines from which the breadth of the territorial seas of each
of the two States is measured. The above provision does not apply, however, where
it is necessary by reason of historic title or other special circumstances to delimit the
territorial seas of the two States in a way which is at variance therewith . . .
70 [1994] ATS 32.
Article 74: Delimitation of the exclusive economic zone between States with opposite
or adjacent coasts
1. The delimitation of the exclusive economic zone between States with opposite or
adjacent coasts shall be effected by agreement on the basis of international law, as
referred to in Article 38 of the Statute of the International Court of Justice, in order to
achieve an equitable solution . . .
Article 83 Delimitation of the continental shelf between States with opposite or adjacent
coasts
1. The delimitation of the continental shelf between States with opposite or adjacent
coasts shall be effected by agreement on the basis of international law, as referred to
in Article 38 of the Statute of the International Court of Justice, in order to achieve an
equitable solution . . .
The reference to an ‘equitable’ solution can be traced back to the 1945 Truman Procla-
mation concerning the continental shelf.71 Various factors might be considered impor-
tant when assessing the equity of a delimitation agreement: the geography of the
coastline, the natural extent of the continental shelf, the geography of the sea floor,
the unity of resource deposits, historical connections, proximity to the coast of each
State, etc. A review of international case law demonstrates that the relative importance
of these factors has changed over time.
North Sea Continental Shelf Cases (Federal Republic of Germany v

Denmark; Federal Republic of Germany v Netherlands) (Judgment)
[1969] ICJ Reports 3
[The case concerned attempts by the Federal Republic of Germany to conclude a
continental shelf delimitation agreement with each of the Netherlands and Denmark.
Denmark and the Netherlands argued that the delimitation should be determined based
upon equidistance, as set down in art 6(2) of the 1958 Convention on the Continental
Shelf. Germany argued that such an approach was inequitable and not required by
international law, because in circumstances where the coastline was concave, as here,
the equidistance principle gave the middle state a smaller continental shelf than it
would otherwise obtain.]
[47] A review of the genesis and development of the equidistance method of delimita-
tion can only serve to confirm the foregoing conclusion [ie that the equidistance method
is not an inherent requirement of international law]. Such a review may appropriately
start with the instrument, generally known as the ‘Truman Proclamation’, issued by the
Government of the United States on 28 September 1945. Although this instrument was
not the first or only one to have appeared, it has in the opinion of the Court a special
status. Previously, various theories as to the nature and extent of the rights relative
to or exercisable over the continental shelf had been advanced by jurists, publicists
and technicians. The Truman Proclamation however, soon came to be regarded as the
starting point of the positive law on the subject, and the chief doctrine it enunciated,
namely that of the coastal State as having an original, natural, and exclusive (in short a
71 See further 10.5 above.
LAW OF THE SEA 539
vested) right to the continental shelf off its shores, came to prevail over all others, being
now reflected in Article 2 of the 1958 Geneva Convention on the Continental Shelf.
With regard to the delimitation of lateral boundaries between the continental shelves of
adjacent States, a matter which had given rise to some consideration on the technical,
but very little on the juristic level, the Truman Proclamation stated that such boundaries
‘shall be determined by the United States and the State concerned in accordance with
equitable principles’. These two concepts, of delimitation by mutual agreement and
delimitation in accordance with equitable principles, have underlain all the subsequent
history of the subject. They were reflected in various other State proclamations of the
period, and after, and in the later work on the subject . . .
[85] It emerges from the history of the development of the legal regime of the con-
tinental shelf, which has been reviewed earlier, that the essential reason why the
equidistance method is not to be regarded as a rule of law is that, if it were to be
compulsorily applied in all situations, this would not be consonant with certain basic
legal notions which, as has been observed in paragraphs 48 and 55, have from the
beginning reflected the opinio juris in the matter of delimitation; those principles being
that delimitation must be the object of agreement between the States concerned, and
that such agreement must be arrived at in accordance with equitable principles . . . in
short, it is not a question of applying equity simply as a matter of abstract justice, but
of applying a rule of law which itself requires the application of equitable principles, in
accordance with the ideas which have always underlain the development of the legal
regime of the continental shelf in this field, namely:
(a) the parties are under an obligation to enter into negotiations with a view to arriving at an
agreement, and not merely to go through a formal process of negotiation as a sort of prior
condition for the automatic application of a certain method of delimitation in the absence of
agreement; they are under an obligation so to conduct themselves that the negotiations are
meaningful, which will not be the case when either of them insists upon its own position
without contemplating any modification of it;
(b) the parties are under an obligation to act in such a way that, in the particular case, and
taking all the circumstances into account, equitable principles are applied, – for this purpose
the equidistance method can be used, but other methods exist and may be employed, alone
or in combination, according to the areas involved;
(c) for the reasons given in paragraphs 43 and 44, the continental shelf of any State must be
the natural prolongation of its land territory and must not encroach upon what is the natural
prolongation of the territory of another State . . .
[89] It must next be observed that, in certain geographical circumstances which are
quite frequently met with, the equidistance method, despite its known advantages,
leads unquestionably to inequity, in the following sense:
(a) The slightest irregularity in a coastline is automatically magnified by the equidistance line
as regards the consequences for the delimitation of the continental shelf. Thus it has been
seen in the case of concave or convex coastlines that if the equidistance method is employed,
then the greater the irregularity and the further from the coastline the area to be delimited, the
more unreasonable are the results produced. So great an exaggeration of the consequences of
a natural geographical feature must be remedied or compensated for as far as possible, being
of itself creative of inequity.
(b) In the case of the North Sea in particular, where there is no outer boundary to the con-
tinental shelf, it happens that the claims of several States converge, meet and intercross in
localities where, despite their distance from the coast, the bed of the sea still unquestionably
consists of continental shelf. A study of these convergences, as revealed by the maps, shows
how inequitable would be the apparent simplification brought about by a delimitation which,
ignoring such geographical circumstances, was based solely on the equidistance method.
[90] If for the above reasons equity excludes the use of the equidistance method in the
present instance, as the sole method of delimitation, the question arises whether there
is any necessity to employ only one method for the purposes of a given delimitation.
There is no logical basis for this, and no objection need be felt to the idea of effecting
a delimitation of adjoining continental shelf areas by the concurrent use of various
methods. The Court has already stated why it considers that the international law of
continental shelf delimitation does not involve any imperative rule and permits resort
to various principles or methods, as may be appropriate, or a combination of them,
provided that, by the application of equitable principles, a reasonable result is arrived at.
[91] Equity does not necessarily imply equality. There can never be any question of
completely refashioning nature, and equity does not require that a State without access
to the sea should be allotted an area of continental shelf, any more than there could
be a question of rendering the situation of a State with an extensive coastline similar
to that of a State with a restricted coastline. Equality is to be reckoned within the
same plane, and it is not such natural inequalities as these that equity could remedy.
But in the present case there are three States whose North Sea coastlines are in fact
comparable in length and which, therefore, have been given broadly equal treatment by
nature except that the configuration of one of the coastlines would, if the equidistance
method is used, deny to one of these States treatment equal or comparable to that
given the other two. Here indeed is a case where, in a theoretical situation of equality
within the same order, an inequity is created. What is unacceptable in this instance is
that a State should enjoy continental shelf rights considerably different from those of
its neighbours merely because in the one case the coastline is roughly convex in form
and in the other it is markedly concave, although those coastlines are comparable in
length. It is therefore not a question of totally refashioning geography whatever the
facts of the situation but, given a geographical situation of quasi-equality as between a
number of States, of abating the effects of an incidental special feature from which an
unjustifiable difference of treatment could result . . .
[93] In fact, there is no legal limit to the considerations which States may take account
of for the purpose of making sure that they apply equitable procedures, and more
often than not it is the balancing-up of all such considerations that will produce this
result rather than reliance on one to the exclusion of all others. The problem of the
relative weight to be accorded to different considerations naturally varies with the
circumstances of the case.
[94] In balancing the factors in question it would appear that various aspects must
be taken into account. Some are related to the geological, others to the geographical
aspect of the situation, others again to the idea of the unity of any deposits. These
criteria, though not entirely precise, can provide adequate bases for decision adapted
to the factual situation.
LAW OF THE SEA 541
The Court went on to highlight the geology of the continental shelf, the configuration
of the coastline, the extent of natural resource deposits, and proportionality between
the length of coastline and area of associated continental shelf as all being relevant
factors. The Court concluded that the parties were not obliged to adopt an equidis-
tance method; rather they should seek an agreement ‘in accordance with equitable
principles’, taking into account the above factors ‘in such a way as to leave as much as
possible to each Party all those parts of the continental shelf that constitute a natural
prolongation of its land territory into and under the sea, without encroachment on the
natural land territory of the other.’72
With the negotiation of the LOSC, which incorporates an automatic continental shelf
entitlement of 200 nautical miles regardless of natural endowment, the relevance
of geographical features and ‘natural prolongation’ has diminished significantly. In
the 2009 decision of the International Court of Justice (ICJ) in the Case Concerning
Maritime Delimitation in the Black Sea, the Court helpfully sets out its current approach
to maritime boundary delimitation in the context of delimiting the continental shelf
and EEZ boundaries of Romania and the Ukraine in the north-western part of the Black
Sea.
Case Concerning Maritime Delimitation in the Black Sea (Romania v

Ukraine) [2009] ICJ Reports
7. Delimitation methodology
[115] When called upon to delimit the continental shelf or exclusive economic zones,
or to draw a single delimitation line, the Court proceeds in defined stages.
[116] These separate stages, broadly explained in the case concerning Continental
Shelf (Libyan Arab Jamahiriya/Malta) (Judgment, ICJ Reports 1985, p 46, para 60),
have in recent decades been specified with precision. First, the Court will establish a
provisional delimitation line, using methods that are geometrically objective and also
appropriate for the geography of the area in which the delimitation is to take place. So
far as delimitation between adjacent coasts is concerned, an equidistance line will be
drawn unless there are compelling reasons that make this unfeasible in the particular
case (see Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v Honduras), Judgment of 8 October 2007, para 281). So
far as opposite coasts are concerned, the provisional delimitation line will consist of
a median line between the two coasts. No legal consequences flow from the use of
the terms ‘median line’ and ‘equidistance line’ since the method of delimitation is the
same for both.
[117] Equidistance and median lines are to be constructed from the most appropri-
ate points on the coasts of the two States concerned, with particular attention being
paid to those protuberant coastal points situated nearest to the area to the delimited.
The Court considers elsewhere (see paragraphs 135–137 below) the extent to which
the Court may, when constructing a single-purpose delimitation line, deviate from the
base points selected by the parties for their territorial seas. When construction of a
72 North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark and the Netherlands) (Judgment)
[1969] ICJ Reports 3 [101].
provisional equidistance line between adjacent States is called for, the Court will have
in mind considerations relating to both parties’ coastlines when choosing its own base
points for this purpose. The line thus adopted is heavily dependent on the physical
geography and the most seaward points of the two coasts.
[118] In keeping with its settled jurisprudence on maritime delimitation, the first stage of
the Court’s approach is to establish the provisional equidistance line. At this initial stage
of the construction of the provisional equidistance line the Court is not yet concerned
with any relevant circumstances that may obtain and the line is plotted on strictly
geometrical criteria on the basis of objective data.
[119] In the present case the Court will thus begin by drawing a provisional equidistance
line between the adjacent coasts of Romania and Ukraine, which will then continue as
a median line between their opposite coasts.
[120] The course of the final line should result in an equitable solution (Articles 74 and
83 of UNCLOS). Therefore, the Court will at the next, second stage consider whether
there are factors calling for the adjustment or shifting of the provisional equidistance
line in order to achieve an equitable result (Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Judg-
ment, ICJ Reports 2002, p 441, para 288). The Court has also made clear that when the
line to be drawn covers several zones of coincident jurisdictions, ‘the so-called equi-
table principles/relevant circumstances method may usefully be applied, as in these
maritime zones this method is also suited to achieving an equitable result’ (Territo-
rial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v Honduras), Judgment of 8 October 2007, para 271).
[121] This is the second part of the delimitation exercise to which the Court will turn,
having first established the provisional equidistance line.
[122] Finally, and at a third stage, the Court will verify that the line (a provisional
equidistance line which may or may not have been adjusted by taking into account
the relevant circumstances) does not, as it stands, lead to an inequitable result by
reason of any marked disproportion between the ratio of the respective coastal lengths
and the ratio between the relevant maritime area of each State by reference to the
delimitation line (see paragraphs 214–215). A final check for an equitable outcome
entails a confirmation that no great disproportionality of maritime areas is evident by
comparison to the ratio of coastal lengths. This is not to suggest that these respective
areas should be proportionate to coastal lengths – as the Court has said ‘the sharing out
of the area is therefore the consequence of the delimitation, not vice versa’ (Maritime
Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway),
Judgment, ICJ Reports 1993, p 67, para 64).
Notes
1. Australia has maritime boundary agreements with Indonesia, East Timor, Papua New
Guinea, the Solomon Islands, France and New Zealand.
2. For various geographical, historical and political reasons, some of Australia’s maritime
boundary arrangements display considerable creativity. For example, under the Torres
LAW OF THE SEA 543
Strait Treaty,73 separate seabed and fisheries boundaries have been established along
part of the length of the agreed boundary.
3. For Australia, the most problematic maritime boundary remains the Timor Gap. Some of
the history of negotiations concerning the Timor Gap, and the challenges posed by that
delimitation, are reviewed by Schofield in the following extract.
Clive Schofield, ‘Minding the Gap: The Australia–East Timor

Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS)’
(2007) 22 International Journal of Marine and Coastal Law 189
(footnotes omitted)
[190] Several existing maritime boundary agreements are relevant to Australia’s and East
Timor’s dispute over boundaries and resources in the Timor Sea. In particular, in 1972
Australia and Indonesia signed an agreement delimiting their seabed boundaries in the
Timor Sea. While Indonesia had claimed that the boundary line should be delimited
on the basis of equidistance between the two countries’ opposite coastlines, Australia
instead argued that the boundary should be determined in accordance with the concept
of ‘natural prolongation’.
According to the latter approach, each coastal state should have rights over that part
of the continental shelf forming a natural prolongation of its land territory into and
under the sea. Thus, the location of the maritime boundary should be determined, or
at least influenced, by the geophysical characteristics [191] of the sea floor, notably its
geology (composition and structure) and geomorphology (shape, form and configura-
tion). At the time of the Australian and Indonesian discussions, natural prolongation
represented an especially powerful and persuasive argument. This was largely because
the International Court of Justice (ICJ) had found, in its Judgement on the North Sea
Continental Shelf cases of 1969, that natural prolongation should be a key consideration
in delimiting the continental shelf.
In essence, Australia argued that two continental shelves existed in the Timor Sea,
divided by the Timor Trough, which reaches depths in excess of 3500 m, running parallel
to the island of Timor. In accordance with the natural prolongation case, therefore, the
boundary line should accord with a line approximating the axis of the Timor Trough.
As this submarine feature lies substantially nearer to the Indonesian rather than to
the Australian coast, a seabed boundary fixed on this basis would lie well to the
north and west of the median line in the Timor Sea and thus be greatly to Australia’s
advantage. Ultimately, a compromise line was agreed upon. Nonetheless, the final
seabed delimitation line still lies well on the Indonesian side of the median line between
opposite coasts. Indeed, it has been estimated that Australia secured around 80% of
the area subject to overlapping claims as a result of the two states’ initial claims.
The continental shelf boundary agreed between Australia and Indonesia in 1972 was
not, however, continuous. The existence of what, at the time, was Portuguese Timor
73 Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime
Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters
[1985] ATS 4, art 4.
(the future East Timor) meant that the Australian–Indonesian boundary was divided
into two sections, separated by what became popularly known as the ‘Timor Gap’.
[192] Australia anticipated negotiations with the Portuguese authorities to close the
Gap, but these had not eventuated by the time that Portuguese administration came
to an end, and, shortly thereafter, Indonesia occupied and subsequently annexed East
Timor. In due course, Australia, with an eye on allowing oil and gas exploration to
proceed in what was by then acknowledged to be a highly prospective area of the
Timor Sea, came to accept Indonesia’s annexation of East Timor and the two States
entered into renewed negotiations with the aim, for Australia at least, of linking up the
existing Australian–Indonesian seabed delimitation lines and closing the Gap. However,
by the time Australia and Indonesia came to negotiate delimitation in the Timor Gap, the
international legal circumstances had evolved considerably – arguably to the detriment
of Australia’s natural prolongation-based arguments.
For instance, in its Judgement on the Libya/Malta case of 1985, the ICJ effectively
dismissed any role for geophysical factors in determining the course of boundary delim-
itation within 200 nautical miles of the coast. The ICJ noted that the international law
of the sea had developed, especially through the conclusion of the United Nations
Convention on the Law of the Sea (LOSC) of 1982, which introduced the exclusive
economic zone (EEZ) concept. The Court observed that as States were now entitled
to claim a continental shelf extending as far as 200 nautical miles from their coast
‘whatever the geological characteristics of the corresponding seabed and subsoil, there
is no reason to ascribe any role to geological or geophysical factors . . . either in verifying
the legal title of the States concerned or in proceeding to a delimitation as between
their claims.’
The timing of the negotiations that produced the 1972 Australia–Indonesia seabed
treaty was, therefore, apparently critical. The talks took place in the immediate aftermath
of the North Sea Continental Shelf cases in 1969, which imparted weight and novelty
to the concept of natural prolongation. However, they were also prior to the onset, in
1974, of the negotiations that eventually yielded the LOSC and the EEZ concept, which
substantially undermined the role of natural prolongation in determining the course of
maritime boundaries within 200 nautical miles of the coast.
[193] In light of these developments, Indonesia, in the course of negotiations tak-

ing place in the late 1980s, steadfastly refused to close the Gap with a maritime
boundary consistent with the 1972 continental shelf delimitation lines . . . Ultimately,
the impasse was overcome through the application of a joint zone solution – the Timor
Gap Zone of Cooperation. The Timor Gap Zone of Cooperation was heralded as the
most complex, comprehensive and sophisticated maritime joint development zone ever
concluded.
With regard to jurisdiction over the water column rather than the seabed, a com-
promise was more readily achieved. Australia and Indonesia were able to agree to
boundaries in the Timor Sea that were predominantly consistent with the median line
between opposite coasts, first with regard to a provisional fisheries surveillance and
enforcement line in 1981, and subsequently concerning delimitation of the EEZ in
1997. This has created an unusual situation whereby there are portions of the central
LAW OF THE SEA 545
and northern Timor Sea where [194] Australia has jurisdiction over the continental shelf
by virtue of the 1972 seabed treaty and Indonesia has jurisdiction over the overlying
water column thanks to the 1981 and 1997 agreements.
In the aftermath of the referendum on independence in East Timor, the violence that
erupted thereafter and the consequent Australian-led intervention under UN auspices,
administration of East Timor fell to an interim international body, the UN Mission in
East Timor (UNTAET). In order to safeguard ongoing resource development activities
in the Timor Sea, Australia and UNTAET entered into an Exchange of Notes whereby
UNTAET, on behalf of East Timor, assumed all the rights and responsibilities previ-
ously held by Indonesia in respect of the Timor Gap joint zone. The agreement was,
however, without prejudice to East Timor’s future position and also did not recognise
the validity of the Timor Gap treaty. A Memorandum of Understanding was also con-
cluded which ensured continuity in terms of the legal regime, production-sharing con-
tracts, the Ministerial Council and the Joint Authority established under the Timor Gap
treaty.
[195] East Timor gained its independence on 20 May 2002 as the Democratic Republic
of Timor-Leste. East Timor subsequently maintained that it was not bound by any of
the agreements entered into on its behalf by Indonesia – including the Timor Gap
joint development zone. However, in order to seamlessly ensure continuity for existing
exploration activities in what had been the Timor Gap joint zone, East Timor and
Australia entered into a further interim arrangement on the same day that East Timor
gained independence, through the Timor Sea Treaty (TST).
Schofield goes on to outline the continuing difficulties in negotiating a permanent

maritime boundary in the area of the Timor Gap. He notes in particular the March
2002 announcement by Australia of its withdrawal from the compulsory jurisdiction
of the ICJ and the International Tribunal for the Law of the Sea (ITLOS) in relation to
maritime boundary disputes. He then turns to the agreement that was finally reached
in January 2006 which, although not settling the maritime boundary, at least makes
practical arrangements to allow petroleum activities to proceed.
[205] As previously noted, the Treaty on Certain Maritime Arrangements in the Timor
Sea was formally signed on 12 January 2006 and came into force on 23 February
2007 . . . The Preamble to the Treaty acknowledges the parties’ ‘geographic proximity,
friendship and developing economic relationship,’ and provides that the purpose of
the agreement is to strengthen that relationship and deepen cooperation between
them. Specific reference is made to the LOSC and, in particular, to the LOSC’s maritime
delimitation provisions in respect of the EEZ and continental shelf (Articles 74 and 83),
notably that agreement shall be ‘effected by agreement on the basis of international law
in order to achieve an equitable solution’ and that in the absence of delimitation, ‘the
obligation for States to make every effort in a spirit of understanding and cooperation
to enter into provisional arrangements of a practical nature which are without prejudice
to the final determination.’ The Preamble also makes it clear that the treaty covers not
only ’petroleum activities’ in the seabed, but also the development and management
of living and non-living resources in an ‘economically and environmentally sustainable
manner.’
Among its substantive provisions, the Treaty includes robust ‘without prejudice’
clauses designed to ensure that the jurisdictional claims of the parties, and ultimately
the question of maritime boundary delimitation in the Timor Sea remains unaffected
by the terms of the accord . . .
[206] The key components of the Treaty from a seabed resource-sharing perspective
are contained in Article 5, where it is stated that Australia and East Timor shall ‘share
equally’ revenues derived from the upstream exploitation of petroleum resources within
the ‘Unit Area’ established under the Sunrise IUA . . .
In return for what it is hoped will prove to be substantial additional revenue above
that which would have been derived solely under the terms of the Timor [207] Sea
Treaty and the Sunrise IUA, East Timor has agreed to Australia’s proposal to shelve the
Timor Sea dispute and maritime boundary delimitation negotiations for the duration
of the treaty. This has been achieved through a moratorium on both sides’ claims
contained in Article 4 whereby: ‘Neither Australia nor Timor-Leste shall assert, pursue
or further by any means in relation to the other Party its claims to sovereign rights and
jurisdiction and maritime boundaries for the period of this Treaty.’
Note
1. The Sunrise IUA referred to by Schofield is the Agreement between the Government of
Australia and the Government of the Democratic Republic of Timor-Leste Relating to
the Unitisation of the Sunrise and Troubadour Fields of 6 March 2003.74 The purpose
of the Agreement is to provide a legal foundation, and investor certainty, for development
of the oil and gas field.
10.10 Protection of the marine environment
Part XII of the LOSC concerns the protection and preservation of the marine envi-
ronment. Although the provisions are quite extensive, in relation to environmental
protection the Convention is really designed as a framework to operate in conjunction
with existing and future agreements on more specific topics.
Article 192: General obligation
States have the obligation to protect and preserve the marine environment.
Article 193: Sovereign right of States to exploit their natural resources
States have the sovereign right to exploit their natural resources pursuant to their
environmental policies and in accordance with their duty to protect and preserve the
marine environment.
74 [2007] ATS 11.
LAW OF THE SEA 547
Article 194: Measures to prevent, reduce and control pollution of the marine
environment
1. States shall take, individually or jointly as appropriate, all measures consistent with
this Convention that are necessary to prevent, reduce and control pollution of the
marine environment from any source, using for this purpose the best practicable means
at their disposal and in accordance with their capabilities, and they shall endeavour to
harmonize their policies in this connection.
2. States shall take all measures necessary to ensure that activities under their jurisdic-
tion or control are so conducted as not to cause damage by pollution to other States
and their environment, and that pollution arising from incidents or activities under their
jurisdiction or control does not spread beyond the areas where they exercise sovereign
rights in accordance with this Convention.
3. The measures taken pursuant to this Part shall deal with all sources of pollution of
the marine environment. These measures shall include, inter alia, those designed to
minimize to the fullest possible extent:
(a) the release of toxic, harmful or noxious substances, especially those which are persistent,
from land-based sources, from or through the atmosphere or by dumping;
(b) pollution from vessels, in particular measures for preventing accidents and dealing with
emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional
discharges, and regulating the design, construction, equipment, operation and manning of
vessels;
(c) pollution from installations and devices used in exploration or exploitation of the natu-
ral resources of the seabed and subsoil, in particular measures for preventing accidents and
dealing with emergencies, ensuring the safety of operations at sea, and regulating the design,
construction, equipment, operation and manning of such installations or devices;
(d) pollution from other installations and devices operating in the marine environment, in
particular measures for preventing accidents and dealing with emergencies, ensuring the safety
of operations at sea, and regulating the design, construction, equipment, operation and manning
of such installations or devices.
4. In taking measures to prevent, reduce or control pollution of the marine environ-

ment, States shall refrain from unjustifiable interference with activities carried out by
other States in the exercise of their rights and in pursuance of their duties in conformity
with this Convention.
5. The measures taken in accordance with this Part shall include those necessary to
protect and preserve rare or fragile ecosystems as well as the habitat of depleted,
threatened or endangered species and other forms of marine life . . .
Article 197: Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional basis, directly
or through competent international organizations, in formulating and elaborating inter-
national rules, standards and recommended practices and procedures consistent with
this Convention, for the protection and preservation of the marine environment, taking
into account characteristic regional features.
Notes
1. The principles enunciated in Part XII reflect general principles of international environ-
mental law75 as applied to the marine environment. For example, the tension between
environmental protection and resource development that is implicit in art 193 strongly
reflects Principle 21 of the Stockholm Declaration.76 The duty to cooperate in art 197 of
the LOSC reflects the development more generally of a duty to cooperate under principles
of international environmental law. See further Chapter 11 at 11.5.3.
2. Article 194, which requires States to act in relation to marine pollution, is expanded
upon in later articles dealing with various sources of marine pollution. These provi-
sions are designed to work in tandem with other relevant international agreements.
The various articles contain numerous references to States setting standards in conjunc-
tion with ‘competent international organizations’, which in particular would refer to the
International Maritime Organization (IMO) and the United Nations Environment Program
(UNEP).
10.11 Piracy
An important exception to the freedom of the high seas is the right, indeed the duty,
of all States to take action to combat piracy.

[1994] ATS 31
Article 100: Duty to cooperate in the repression of piracy
All States shall cooperate to the fullest possible extent in the repression of piracy on
the high seas or in any other place outside the jurisdiction of any State.
Article 101: Definition of piracy
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private
ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board
such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge
of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a)
or (b).
75 See further discussion in Chapter 11 at 11.5.

76 See further Chapter 11 at 11.2.
LAW OF THE SEA 549
Notes
1. The formal definition of piracy under the LOSC will not cover all situations of violence
directed against a vessel at sea, including hijacking and situations where passengers have
gained control of a vessel through violence. Concern over the increasing incidence of
unlawful acts threatening the safety of ships, their crew and their passengers led to the
conclusion of the IMO-sponsored 1988 Convention for the Suppression of Unlawful Acts
Against the Safety of Maritime Navigation,77 commonly known as the ‘SUA Convention’.
The SUA Convention covers a broader range of activities than that covered by the LOSC
definition of piracy. Under the SUA Convention, States are obliged either to prosecute or
to extradite alleged offenders. The range of terrorist activities covered by the SUA Conven-
tion will be extended by a 2005 Protocol, which covers the use or threat of explosives,
radioactive or biological weaponry on or against a ship, or the discharge of ‘oil, liquefied
natural gas, or other hazardous or noxious substance’ from a ship in potentially lethal
quantities.78
2. Piracy remains a significant problem in certain parts of the world. In its 2008 Annual
Report on Piracy and Armed Robbery against Ships,79 the IMO reported that the most
affected areas are East Africa and the South China Sea. Attacks off the coast of East Africa,
in particular Somalia, rose markedly over 2007 and 2008, so that the UN Security Council,
acting under Chapter VII of the UN Charter, authorised various measures to be taken to
combat piracy in the region.
UN Security Council Resolution 1816 (2008)

The Security Council,
Recalling its previous resolutions and the statements of its President concerning the
situation in Somalia,
Gravely concerned by the threat that acts of piracy and armed robbery against vessels
pose to the prompt, safe and effective delivery of humanitarian aid to Somalia, the
safety of commercial maritime routes and to international navigation,
Expressing its concerns at the quarterly reports from the International Maritime Orga-
nization (IMO) since 2005, which provide evidence of continuing piracy and armed
robbery in particular in the waters off the coast of Somalia,
Affirming that international law, as reflected in the United Nations Convention on the
Law of the Sea of 10 December 1982 (‘the Convention’), sets out the legal framework
applicable to combating piracy and armed robbery, as well as other ocean activities,
Reaffirming the relevant provisions of international law with respect to the repression
of piracy, including the Convention, and recalling that they provide guiding principles
for cooperation to the fullest possible extent in the repression of piracy on the high seas
77 [1993] ATS 10.

78 Protocol of 2005 to the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation
[2005] ATNIF 30, art 4, inserting art 3bis into the 1988 Convention.
79 IMO, Reports on Acts of Piracy and Armed Robbery against Ships, 2008 Annual Report, MSC.4/Circ.133 (19 March
2009), available at <www.imo.org/includes/blastDataOnly.asp/data id%3D25550/133.pdf>.
or in any other place outside the jurisdiction of any state, including but not limited to
boarding, searching, and seizing vessels engaged in or suspected of engaging in acts of
piracy, and to apprehending persons engaged in such acts with a view to such persons
being prosecuted,
Reaffirming its respect for the sovereignty, territorial integrity, political independence
and unity of Somalia,
Taking into account the crisis situation in Somalia, and the lack of capacity of the
Transitional Federal Government (TFG) to interdict pirates or patrol and secure either
the international sea lanes off the coast of Somalia or Somalia’s territorial waters,
Deploring the recent incidents of attacks upon and hijacking of vessels in the territorial
waters and on the high seas off the coast of Somalia including attacks upon and
hijackings of vessels operated by the World Food Program and numerous commercial
vessels and the serious adverse impact of these attacks on the prompt, safe and effective
delivery of food aid and other humanitarian assistance to the people of Somalia, and
the grave dangers they pose to vessels, crews, passengers, and cargo,
Noting the letters to the Secretary-General from the Secretary-General of the IMO dated
5 July 2007 and 18 September 2007 regarding the piracy problems off the coast of
Somalia and the IMO Assembly resolution A.1002 (25), which strongly urged Govern-
ments to increase their efforts to prevent and repress, within the provisions of inter-
national law, acts of piracy and armed robbery against vessels irrespective of where
such acts occur, and recalling the joint communiqué of the IMO and the World Food
Programme of 10 July 2007,
Taking note of the Secretary-General’s letter of 9 November 2007 to the President

of the Security Council reporting that the Transitional Federal Government of Somalia
(TFG) needs and would welcome international assistance to address the problem,
Taking further note of the letter from the Permanent Representative of the Somali
Republic to the United Nations to the President of the Security Council dated 27 Febru-
ary 2008, conveying the consent of the TFG to the Security Council for urgent assistance
in securing the territorial and international waters off the coast of Somalia for the safe
conduct of shipping and navigation,
Determining that the incidents of piracy and armed robbery against vessels in the
territorial waters of Somalia and the high seas off the coast of Somalia exacerbate the
situation in Somalia which continues to constitute a threat to international peace and
security in the region,
Acting under Chapter VII of the Charter of the United Nations,
1. Condemns and deplores all acts of piracy and armed robbery against vessels in territorial
waters and the high seas off the coast of Somalia;
2. Urges States whose naval vessels and military aircraft operate on the high seas and airspace
off the coast of Somalia to be vigilant to acts of piracy and armed robbery and, in this context,
encourages, in particular, States interested in the use of commercial maritime routes off the
coast of Somalia, to increase and coordinate their efforts to deter acts of piracy and armed
robbery at sea in cooperation with the TFG;
LAW OF THE SEA 551
3. Urges all States to cooperate with each other, with the IMO and, as appropriate, with the
relevant regional organizations in connection with, and share information about, acts of piracy
and armed robbery in the territorial waters and on the high seas off the coast of Somalia, and
to render assistance to vessels threatened by or under attack by pirates or armed robbers, in
accordance with relevant international law;
4. Further urges States to work in cooperation with interested organizations, including the
IMO, to ensure that vessels entitled to fly their flag receive appropriate guidance and training
on avoidance, evasion, and defensive techniques and to avoid the area whenever possible;
5. Calls upon States and interested organizations, including the IMO, to provide technical
assistance to Somalia and nearby coastal States upon their request to enhance the capacity of
these States to ensure coastal and maritime security, including combating piracy and armed
robbery off the Somali and nearby coastlines;
6. Affirms that the measures imposed by paragraph 5 of resolution 733 (1992) and further
elaborated upon by paragraphs 1 and 2 of resolution 1425 (2002) do not apply to supplies of
technical assistance to Somalia solely for the purposes set out in paragraph 5 above which have
been exempted from those measures in accordance with the procedure set out in paragraphs
11(b) and 12 of resolution 1772 (2007);
7. Decides that for a period of six months from the date of this resolution, States cooperating
with the TFG in the fight against piracy and armed robbery at sea off the coast of Somalia, for
which advance notification has been provided by the TFG to the Secretary-General, may:
(a) Enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed
robbery at sea, in a manner consistent with such action permitted on the high seas with respect
to piracy under relevant international law; and
(b) Use, within the territorial waters of Somalia, in a manner consistent with action permitted
on the high seas with respect to piracy under relevant international law, all necessary means to
repress acts of piracy and armed robbery;
8. Requests that cooperating states take appropriate steps to ensure that the activities they
undertake pursuant to the authorization in paragraph 7 do not have the practical effect of
denying or impairing the right of innocent passage to the ships of any third State;
9. Affirms that the authorization provided in this resolution applies only with respect to the
situation in Somalia and shall not affect the rights or obligations or responsibilities of member
states under international law, including any rights or obligations under the Convention, with
respect to any other situation, and underscores in particular that it shall not be considered as
establishing customary international law, and affirms further that this authorization has been
provided only following receipt of the letter from the Permanent Representative of the Somalia
Republic to the United Nations to the President of the Security Council dated 27 February 2008
conveying the consent of the TFG;
10. Calls upon States to coordinate their actions with other participating States taken pursuant
to paragraphs 5 and 7 above;
11. Calls upon all States, and in particular flag, port and coastal States, States of the nationality of
victims and perpetrators of piracy and armed robbery, and other States with relevant jurisdiction
under international law and national legislation, to cooperate in determining jurisdiction, and in
the investigation and prosecution of persons responsible for acts of piracy and armed robbery
off the coast of Somalia, consistent with applicable international law including international
human rights law, and to render assistance by, among other actions, providing disposition and
logistics assistance with respect to persons under their jurisdiction and control, such victims
and witnesses and persons detained as a result of operations conducted under this resolution;
12. Requests States cooperating with the TFG to inform the Security Council within 3 months
of the progress of actions undertaken in the exercise of the authority provided in paragraph 7
above;
13. Requests the Secretary-General to report to the Security Council within 5 months of adop-
tion of this resolution on the implementation of this resolution and on the situation with respect
to piracy and armed robbery in territorial waters and the high seas off the coast of Somalia;
14. Requests the Secretary-General of the IMO to brief the Council on the basis of cases brought
to his attention by the agreement of all affected coastal states, and duly taking into account the
existing bilateral and regional cooperative arrangements, on the situation with respect to piracy
and armed robbery;
15. Expresses its intention to review the situation and consider, as appropriate, renewing the
authority provided in paragraph 7 above for additional periods upon the request of the TFG;
16. Decides to remain seized of the matter.
Notes
1. The measures authorised under Security Council Resolution 1816 were extended for a
further 12 months by Security Council Resolution 1846 (2008) on 2 December 2008.
2. Some States were concerned that Resolution 1816 might be seen as evidence of a shift
in customary international law to allow foreign vessels to intervene in situations of piracy
within the territorial waters of another State. Why would this be of concern? How do you
think such concerns were addressed in the text of the Resolution?
10.12 Dispute resolution and the law of the sea
One of the LOSC ’s major achievements is the provision of a compulsory dispute reso-
lution system in Part XV.
Article 279: Obligation to settle disputes by peaceful means
States Parties shall settle any dispute between them concerning the interpretation
or application of this Convention by peaceful means in accordance with Article 2,
paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution
by the means indicated in Article 33, paragraph 1, of the Charter.
Article 280: Settlement of disputes by any peaceful means chosen by the parties
Nothing in this Part impairs the right of any States Parties to agree at any time to settle a
dispute between them concerning the interpretation or application of this Convention
by any peaceful means of their own choice.
LAW OF THE SEA 553
Article 281: Procedure where no settlement has been reached by the parties
1. If the States Parties which are parties to a dispute concerning the interpretation
or application of this Convention have agreed to seek settlement of the dispute by a
peaceful means of their own choice, the procedures provided for in this Part apply only
where no settlement has been reached by recourse to such means and the agreement
between the parties does not exclude any further procedure.
2. If the parties have also agreed on a time-limit, paragraph 1 applies only upon the
expiration of that time-limit.
Article 282: Obligations under general, regional or bilateral agreements
If the States Parties which are parties to a dispute concerning the interpretation or
application of this Convention have agreed, through a general, regional or bilateral
agreement or otherwise, that such dispute shall, at the request of any party to the
dispute, be submitted to a procedure that entails a binding decision, that procedure
shall apply in lieu of the procedures provided for in this Part, unless the parties to the
dispute otherwise agree . . .
Article 284: Conciliation
1. A State Party which is a party to a dispute concerning the interpretation or appli-

cation of this Convention may invite the other party or parties to submit the dispute
to conciliation in accordance with the procedure under Annex V, section 1, or another
conciliation procedure.
2. If the invitation is accepted and if the parties agree upon the conciliation procedure
to be applied, any party may submit the dispute to that procedure.
3. If the invitation is not accepted or the parties do not agree upon the procedure, the
conciliation proceedings shall be deemed to be terminated.
4. Unless the parties otherwise agree, when a dispute has been submitted to concilia-
tion, the proceedings may be terminated only in accordance with the agreed conciliation
procedure . . .
Article 286: Application of procedures under this section
Subject to section 3, any dispute concerning the interpretation or application of this

Convention shall, where no settlement has been reached by recourse to section 1, be
submitted at the request of any party to the dispute to the court or tribunal having
jurisdiction under this section.
Article 287: Choice of procedure
1. When signing, ratifying or acceding to this Convention or at any time thereafter,

a State shall be free to choose, by means of a written declaration, one or more of
the following means for the settlement of disputes concerning the interpretation or
application of this Convention:
(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;
(b) the International Court of Justice;
(c) an arbitral tribunal constituted in accordance with Annex VII;
(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the
categories of disputes specified therein.
2. A declaration made under paragraph 1 shall not affect or be affected by the obligation
of a State Party to accept the jurisdiction of the Seabed Disputes Chamber of the
International Tribunal for the Law of the Sea to the extent and in the manner provided
for in Part XI, section 5.
3. A State Party, which is a party to a dispute not covered by a declaration in force,

shall be deemed to have accepted arbitration in accordance with Annex VII.
4. If the parties to a dispute have accepted the same procedure for the settlement of
the dispute, it may be submitted only to that procedure, unless the parties otherwise
agree.
5. If the parties to a dispute have not accepted the same procedure for the settlement
of the dispute, it may be submitted only to arbitration in accordance with Annex VII,
unless the parties otherwise agree.
Notes
1. When States become parties to the LOSC they are able to make a written declaration
accepting the jurisdiction of the ITLOS, the ICJ, an arbitral tribunal set up according to
Annex VII of the LOSC, or a specialist arbitral tribunal in relation to the settlement of
disputes. More than one of these methods may be chosen. If there is common ground
between the declarations of States that are party to a dispute, the method of dispute
settlement is thereby determined. If there is no common ground between declarations,
or if one or both parties have not made a declaration, then arbitration is the default
procedure.
2. Article 298 allows for limited exceptions to the compulsory acceptance of dispute resolu-
tion procedures. For example, States are entitled to declare in writing that the compulsory
procedures will not apply to disputes concerning certain boundary delimitations, military
activities or matters which are before the Security Council. Australia’s Declaration takes
advantage of art 298.
Declaration of 21 March 2002 under Articles 287 and 298 of the

United Nations Convention on the Law of the Sea
The Government of Australia declares, under paragraph 1 of article 287 of the United
Nations Convention on the Law of the Sea done at Montego Bay on the tenth day of
December one thousand nine hundred and eighty-two that it chooses the following
means for the settlement of disputes concerning the interpretation or application of
the Convention, without specifying that one has precedence over the other:
(a) The International Tribunal for the Law of the Sea established in accordance with Annex VI
of the Convention; and
(b) The International Court of Justice.
LAW OF THE SEA 555
The Government of Australia further declares, under paragraph 1(a) of article 298 of the
United Nations Convention on the Law of the Sea done at Montego Bay on the tenth day
of December one thousand nine hundred and eighty-two, that it does not accept any of
the procedures provided for in section 2 of Part XV (including the procedures referred
to in paragraphs (a) and (b) of this declaration) with respect of disputes concerning
the interpretation or application of articles 15, 74 and 83 relating to sea boundary
delimitations as well as those involving historic bays or titles.
These declarations by the Government of Australia are effective immediately.
3. In practice, some limits on the ‘compulsory’ and ‘binding’ nature of dispute resolution
procedures under the LOSC have become apparent in situations where another body
may have jurisdiction over an aspect of the dispute. This issue arose in the Southern
Bluefin Tuna Case80 between Australia and New Zealand against Japan.
Further reading
RR Churchill and AV Lowe, The Law of the Sea, 3rd edn, Manchester University Press, Manchester,
1999
Alex G. Oude Elferink and Donald R. Rothwell (eds), Oceans Management in the 21st Century:
Institutional Frameworks and Responses, Martinus Nijhoff, Leiden, 2004
David Freestone, Richard Barnes and David M. Ong (eds), The Law of the Sea: Progress and
Prospects, Oxford University Press, Oxford, 2006
Tafsir Malick Ndiaye and Rüdiger Wolfrum (eds), Law of the Sea, Environmental Law and Set-
tlement of Disputes: Liber Amicorum Judge Thomas A. Mensah, Martinus Nijhoff, Dordrecht,
2007
Donald R. Rothwell and Tim Stephens, The International Law of the Sea, Hart, Oxford, 2010
80 Southern Bluefin Tuna Case (2000) 39 International Legal Materials 1359 (UNCLOS Arbitration Tribunal); see
further the notes accompanying 13.2.4.

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10

Law of the sea

10.1.1 Freedom of the seas

I. A. Shearer, Starke’s International Law, 11th edn, Butterworths,

In opposition to the principle of maritime sovereignty, the principle of the ‘freedom of

10.2 Maritime zones

territorial sea contiguous zone high seas

exclusive economic zone

Figure 2: Maritime zones

Seas and Submerged Lands Act 1973 (Cth)

s 10 Sovereignty in respect of internal waters

s 11 Sovereign rights in respect of continental shelf

s 14 Part II does not affect waters etc within State limits

(b) remain within the limits of the State;

New South Wales v Commonwealth [1975] HCA 58

[54] This result conforms, in my opinion, to an essential feature of a federation, namely,

Article 7: Straight baselines

12 [2007] AATA 2098.

10.2.3 Internal waters

14 [1963] ATS 12.

10.3 Territorial sea

10.3.1 Nature of the territorial sea

Article 3: Breadth of the territorial sea

10.3.2 Innocent passage

21 [1963] ATS 12.

Article 18: Meaning of passage

2. Passage shall be continuous and expeditious. However, passage includes stopping

Article 19: Meaning of innocent passage

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good

(b) any exercise or practice with weapons of any kind;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(l) any other activity not having a direct bearing on passage.

Article 20: Submarines and other underwater vehicles

(c) the protection of cables and pipelines;

(d) the conservation of the living resources of the sea;

(g) marine scientific research and hydrographic surveys;

2. In particular, tankers, nuclear-powered ships and ships carrying nuclear or other

(b) any channels customarily used for international navigation;

(c) the special characteristics of particular ships and channels; and

(d) the density of traffic.

Article 24: Duties of the coastal State

Article 25: Rights of protection of the coastal State

10.3.3 International straits

Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Reports 4

1982 United Nations Convention on the Law of the Sea

Article 37: Scope of this section

(d) comply with other relevant provisions of this Part.

2. Ships in transit passage shall:

3. Aircraft in transit passage shall:

24 LOSC [1994] ATS 31, art. 44.

10.3.4 Archipelagic waters

For the purposes of this Convention:

Subject to certain limitations, an archipelagic State is entitled to draw straight base-

Article 53: Right of archipelagic sea lanes passage

9. In designating or substituting sea lanes or prescribing or substituting traffic separa-

10.4 Contiguous zone

32 LOSC [1994] ATS 31, art 47(1), (2) and (5).

10.5 Continental shelf

Andrew Serdy, ‘Towards Certainty of Seabed Jurisdiction beyond 200