October 20, 2020

A recent ruling on some residual cost issues arising out of the 2015 Federal Court sovereignty claim over the Elizabeth and Middleton Reefs that lie in the Coral Sea 95 km north of Lord Howe Island coincides with a much larger international controversy the origins of which come from an identical place.

In March 1970, Alex Ure – a Sydney businessman – scaled the derelict hull of a shipwreck resting on Middleton Reef above the high tide line and claimed for himself and friend Michael Chan, the 60 km² coral cay, the slightly smaller Elizabeth Reef 45 km to the south and the waters in between.

He posted up a sign on the deck of the wrecked British freighter – the SS Runic that ran aground in 1961 – proclaiming the place as theirs and specifying an address for the pair in Pitt Street Sydney.

Until then, no one had lain claim to either atoll – they were omitted from the Coral Sea Territory that Australia proclaimed in 1969 presumably because there’s nothing to be seen except the carcasses of ships wrecked on the coral and sand bars exposed at low tide.

Sound familiar?

Australia did however purport to assert sovereignty over the submerged atolls in December 1987 and aggregated them into the Australian Coral Sea Territory in 1997. This was against the background of the United Nation’s Convention on the Law of the Sea (UNCLOS) coming into force in 1982.

The Federal Court ruling in February 2016 accepted the reefs had been in international waters in 1970. It invalidated Ure’s claim on the grounds that a single visit to the reefs in March 1970 and plans to utilise the resources there were insufficient to prove their “occupation” and because in its view, such territory could only be claimed by nation-states.

No point was taken by the Commonwealth that – because the reefs were under water and uninhabitable – they were unable to be ‘claimed’ at all and the judgement of appeal Justices Perram, Robertson and Moshinsky was absent discussion on the validity of Australia’s own claim to the reefs given their status as submerged oceanic outcrops.

The resurrection of this controversy is serendipitous given the Permanent Mission of the Commonwealth of Australia to the United Nations in New York last week notified the UN that Australia “rejects China’s claims to maritime zones generated by submerged features, or low tide elevations in a manner inconsistent with UNCLOS”.

“There is no legal basis for a maritime feature to generate maritime entitlements beyond those generated under UNCLOS by that feature in its
natural state,” Australia’s Note Verbale of 23 July states.

The absence of a legal basis for maritime features to generate legal entitlements beyond UNCLOS – for which Australia is now pointing the finger at China over its claims in the South China Sea – was no impediment to its inclusion of the Reefs into its economic maritime territory in 1997 and it was not raised at all in the 2016 Ure-Chan adjudication.

Double standards or a missed opportunity?

Ure v Commonwealth of Australia [2020] FCA 336 Yates J, 13 March 2020

Categories: cross border claims

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