Australia’s Territorial Waters

Australia’s territorial waters are discussed in Part II of the Seas and Submerged Lands Act 1973 (Cth) which is governed by the United Nations Convention on the Law of the Sea (“UNCLOS”).  There is no stand-alone definition of ‘territorial waters’, however a definition can be created through the amalgamation of a variety of differing terms.  The Attorney General’s Department website indicates that Australia has rights and responsibilities over its adjacent waters.  Australia’s ‘internal waters’ are defined as ‘waters which are located on the landward side of the territorial sea baseline’.

Australia’s ‘territorial sea’ is defined as extending ‘12 nautical miles from the territorial sea baseline’.   A nautical mile is expressed as 1,852 metres.  UNCLOS states that 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’.  The ‘contiguous zone’ lies adjacent to Australia’s territorial sea and extends up to ‘24 nautical miles from its territorial sea baseline’.  Inside that zone, Australia is able to exercise the control necessary to prevent or punish infringements of its customs, fiscal, immigration or sanitary laws and regulations.

Australia’s ‘continental shelf’ is defined as an area of seabed and subsoil which extends beyond the territorial sea for up to 200 nautical miles from the baseline and beyond that distance to the outer edge of the continental margin.  Australia has sovereign rights over the continental shelf for the purposes of exploring and exploiting the mineral and other non-living resources of the seabed and subsoil, together with sedentary organisms.  Australia also has jurisdiction with regard to marine scientific research.

Australia’s ‘exclusive economic zone’ lies on the outer edge of the territorial sea and up to 200 nautical miles from the territorial sea baseline.  Australia has the sovereign right to explore and exploit, conserve and manage the natural resources of the waters, seabed and subsoil.  In the case of the three Australians who boarded a Japanese ship in Australia’s exclusive economic zone, jurisdictional issues are prevalent.  Article 56 of UNCLOS states that the coastal State has ‘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’.  Arguably, the three men may have been trying to ‘conserve’ the ‘natural resources whether living or non-living’.

Article 59 of UNCLOS states that ‘in cases where [the] Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole’.  Arguably Australia has universal jurisdiction over the three men as they committed an offence on board a ship of another nationality.  The incident occurred outside Australian territorial waters, however, but still within Australia’s exclusive economic zone.  This would indicate that the conflict must be resolved using equitable principles, proving to be a complex jurisdictional issue.

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