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Published online by Cambridge University Press: 24 January 2025
Nearly half a century has gone by since Sir Cecil Hurst invited readers of the British Year Book of International Law to consider with him the question—“Whose is the Bed of the Sea? ”
Almost twenty-five years ago, President Truman initiated State action to assert authority over the natural resources of the sea-bed and sub-soil of the continental shelf beyond the limits of the territorial sea.
In 1953, Australia contributed significantly to the body of State practice. On 11 September 1953, the Governor-General issued a proclamation declaring the existence under international law of Australia's sovereign rights over the sea-bed and subsoil of the continental shelf contiguous to the coasts of Australia and its Territories for the purpose of exploring and exploiting the natural resources of that sea-bed and subsoil. At about the same time, the Commonwealth Parliament enacted the Pearl Fisheries Act (No.2) 1953 (Cth) amending the Pearl Fisheries Act 1952-1953 (Cth), which made subject to Australian control foreign nationals and foreign vessels engaging in pearling on the continental shelf. In section 5 of the Principal Act, “pearling” was defined to include—
the work of searching for or obtaining pearl shell, trochus, bêchede-mer or green snails
The views in this article are expressed by the author in his personal capacity.
1 (1923) IV British Year Book of International Law 34.
2 Proclamation No. 2667—Policy of the United States with respect to the subsoil and sea-bed of the Continental Shelf—28 September 1945.
3 Commonwealth Statutory Rules 1901-1956, Vol. V, 5350; see also the further proclamation at p. 5351 as to the continental shelf contiguous to the coasts of the Trust Territory of New Guinea. On the two proclamations, see article “Australia and the Continental Shelf” 27 Australian Law Journal 458.
4 (1964) 499 United Nations Treaty Series 311.
5 See the Continental Shelf (Living Natural Resources) Act 1968 (Cth) which provides machinery for the application of Australian control of any living resources covered by the Convention definition of “natural resources”, including, for example the clam found on Australia's north-east continental shelf as well as the four species referred to in the Pearl Fisheries Act 1952-1953 (Cth) which will be repealed when the more extensive Act of 1968 comes into operation.
6 A case involving the applicability of the Fisheries Act 1952-1966 (Cth) to matters occurring approximately 6l miles from the coast of New South Wales and raising the interpretation of section 51 (x) of the Constitution. The case was decided on the position before the amendment made to the Fisheries Act in 1967 under which Australia's exclusive fishing limits, but not the limits of the territorial sea, were extended from 3 to 12 miles.
7 Federal Republic of Germany v. Denmark and Federal Republic of Germany v. Netherlands (1969) 8 International Legal Materials 340. See comment on this case, infra n. 25.
8 April 1959, Milne, Roy Memorial Lecture, “Australia and the Law of the Sea” (1959) 1Google Scholar Adelaide Law Review 1.
9 Report of the Ad Hoc Committee to study the Peaceful Uses of the Sea-bed and the Ocean Floor beyond the Limits of National Jurisdiction, General Assembly, Official Records, Twenty-third Session, A/7230.
10 13 July 1966, Weekly Compilation of Presidential Documents, Office of the Federal Register, National Archives and Records Service, Washington.
11 Resolution 2467A (XXIII).
13 (1968) Round Table No. 232, 347-356.
14 Oda, Shigeru, “Proposals for Revising the Convention on the Continental Shelf” (1968) 7Google Scholar The Columbia Journal of Transnational Law 9.
15 National Development Quarterly, December 1968.
16 Johnson, D.H.N., “The Geneva Conference on the Law of the Sea” (1959)Google Scholar Year Book of World Affairs 68, 77-78.
17 Sørenson, M., “The Law of the Sea” (Nov. 1958)Google Scholar International Conciliation 195.
18 (1951) I.C.J. Reports, 116.
18A See, generally, observations by the Attorney-General, Hansard, 30 May, 1968, p. 1793.
19 Report of the Ad Hoc Committee, A/7230, para. 88.
19A The meeting in August, 1969 did not reach agreement on a set of principles. The report of the Legal Sub-Committee contains a ‘synthesis’, which endeavours to isolate the common denominators of agreement. The ‘synthesis’ emphasizes, however, that for a number of delegations these common denominators were unacceptable in the absence of additional provisions, which in turn were unacceptable to other delegations.
20 For the full text of the Convention see (1964) 499 United Nations Treaty Series 311-320. See the majority Judgment paragraph 41.
21 Federal Republic of Germany v. Denmark and Federal Republic of Germany v. Netherlands (1969) 8 International Legal Materials 340.
22 See paragraph 4.
23 See the method of description adopted in the Second Schedule to the Petroleum (Submerged Lands) Act 1967-1968 (Cth) and the map in Appendix 1 to this article.
24 (1964) 499 United Nations Treaty Series 311, 318-319.
25 Interim Report of the National Petroleum Council, 9 July 1968.
26 See map attached in Appendix II to this article, and also, on this subject, the technical working concepts adopted by the Economic and Technical Working Group of the Ad Hoc Committee A/7230 (Annex I) and the technical and scientific papers (referred to in Annex IV).
27 Cit. supra n. 8. See, however, the comments on paragraph 41 of the Court's Judgment at n. 25, supra.
28 See, for example, the Second Schedule to the Petroleum (Submerged Lands) Act 1967-1968 (Cth).
29 See the opening words of the Second Schedule and the definition of “the continental shelf” in section 5.
30 The Commonwealth Act also applies in certain proclaimed waters beyond 12 miles but only to fishing by Australians.