3 This was the thrust of Professor Georges Scelle 's attack on the continental shelf doctrine in his article, “Plateau Continental et Droit International,” 59 Revue Générale de Droit International Public 5 (1955) (hereinafter cited as “Scelle, Plateau“). See also Scelle, Summary Records of the Eighth Session of the International Law Commission (358th Meeting), 1956 I.L.C. Yearbook (Vol. 1) 138. He saw this developing doctrine as little more than a camouflage for “faustrecht“ (Scelle, Plateau 19) behind which states would advance their unlimited maritime ambitions to enclose vast regions of the sea. See ibid. 55. He envisaged continuous encroachments in the seabed and subsoil, the volume and the superambient air of the great oceans by coastal states, the great beasts (“fauves,” ibid. 61) of the international jungle, until either a median line or a thalweg in the abyss is reached, ibid. 55.

4 Art . 1 of the Continental Shelf Convention defines the shelf region as follows: “For the purpose of these articles, the term “continental shelf” is used as referring (a) to 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 areas; (6) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.“ The definition “to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas” is referred to as the “exploitability test.” Arguments supporting the deletion of the exploitability test from the Continental Shelf Convention on the ground that it permits an indefinite extension of coastal states’ continental shelf rights out into the oceans, and a possible alternative regime thereto to assure titles to minerals won from the depths. See Goldie, “The Exploitability Test—Interpretation and Potentialities,” 8 Natural Resources J. 434 (1968); Goldie et ah, “ A Symposium on the Geneva Conventions and the Need for Future Modifications,” The Law of the Sea: Offshore Boundaries and Zones 265, 273, 274- 279 (Alexander ed., 1967) (hereinafter cited as “Goldie, Geneva Conventions“); Goldie, “The Contents of Davy Jones's Locker—A Proposed Regime for the Seabed and Subsoil,” 22 Rutgers Law Rev. 1 (1967) (hereinafter cited as “Goldie, Davy Jones's Locker“).

5 From the beginning of the International Law Commission's deliberations, the exploitability test was prominently discussed as a central, definitive concept. On the other hand, the extension to include sedentary fisheries in the continental shelf doctrine was a more tentative affair. Originally, the doctrine was viewed as being referable to the “mineral” resources of the shelf. See, e.g., Treaty Between the United Kingdom of Great Britain and Northern Ireland and the Republic of Venezuela Relating to the Submarine Areas of the Gulf of Paria, signed Feb. 26, 1942, 205 L.N. Treaty Series 121, [1942] Great Britain, Treaty Series No. 10 (Cmd. No. 6400); Trinidad and Tobago Submarine Areas of the Gulf of Paria (Annexation) Order in Council, [1942] 1 Stat. E. & 0. 919; 1 Laws and Regulations on the Regime of the High Seas (United Nations Legislative Series) 44, U.N. Doc. ST./LEG./SEE. B/l, Sales No.: 1951.V.2 (1951); President Truman's Presidential Proclamation No. 2667, Sept. 28, 1945, Policy of the United States with Respect to the Natural Resources of the Subsoil and Seabed of the Continental Shelf, 10 Fed. Reg. 12303 (1945); Draft Articles on the Continental Shelf and Belated Subjects, International Law Commission, Report Covering the Work of its Third Session, May 16-July 27, 1951, 1951 I.L.C. Yearbook (Vol. 2) 123, 141-144, U.N. Doc. A/1858 (1951). Later, however, a number of states, amongst which Australia and Ceylon figured prominently, sought to effectuate the inclusion of sedentary fisheries within the scope of the term “natural resources,” these being the resources of the continental shelf which were viewed as falling within coastal states’ sovereign rights. Some writers were extremely critical of this added meaning, while others appeared more to exhibit the kind of concern one might impute to a bonus paterfamilias on finding an unknown and unwanted foundling on his doorstep. Examples of the former were provided by Professors Scelle and Papandreou and Admiral Mouton, and the latter by Professor Francois. See Scelle, Plateau 22-23, and his comments at the 207th Meeting of the International Law Commission, 1953 l.L.C. Yearbook 146 (1959); A. Papandreou, La Situation Juridique des Pucheries Sedentaires en Haute-Mer 139-141, 142 (1958); M. Mouton, “The Continental Shelf,“ 85 Hague Academy, Recueil des Cours 343, 443-445 (1954, I ) ; J. P. A. Francois, Fourth Report on the Regime of the High Seas, the Continental Shelf and Belated Subjects 104-105, 124-127, U.N. Doc. A/CN.4/60 (mimeo., Feb. 19, 1953), where Francois proposed the replacement of the phrase “natural resources” in the Commission's draft article by the narrower term “mineral resources” in order to exclude sedentary fisheries from the category of natural resources falling under coastal states' sovereign rights. At the Commission's fifth session, Professor Francois clearly exhibited his brand of concern. See his protests at the 198th, 199th, 205th and 207th Meetings of the International Law Commission. See 1953 I.L.C. Yearbook (Vol. 1) 88, 91, 135, 146 (1959). Note should also be taken of Professor Scelle's protest against Art. 2, ibid. at 84. Despite the doubts and protests which were voiced at that time, the International Law Commission chose to support the claims of the states which were determined to ensure the inclusion of sedentary fisheries within the category of resources subjected to the exclusive rights vouchsafed by the continental shelf doctrine. See the Commission's Commentary on Art. 2 of its Draft Articles on the Continental Shelf, Report of the International Law Commission Covering the Work of its Fifth Session, 1 June-14 August 1953, 1953 I.L.C. Yearbook (Vol. 2) 200, 214, TJ.N. Doc. A/2456 (1953); the Commission's Commentary on Art. 68 of its Articles concerning the Law of the Sea, Report of the International Law Commission Covering the Work of its Eighth Session, 23 April-4 July 1956, 1956 I.L.C. Yearbook (Vol. 2) 253, 297-298, U.N. Doc. No. A/3159 (1956). For a disappointingly brief memoir of the negotiations leading to the insertion of Art. 2, par. 4, into the Continental Shelf Convention, see Bailey, “Australia and the Law of the Sea,” 1 Adelaide Law Rev. 1, 11 (1960).

6 See the studies cited note 4 above.

7 This question has been very fully discussed in M. McDougal and W. Burke, The Public Order of the Oceans 642-663 (1962).

8 A further consideration militating against a root-and-branch attack on the whole question of exclusive coastal state competence over adjacent sedentary fisheries is provided by the economic nationalism which is reflected in such assertions of policy as the Brazilian decrees in the “Lobster War,” note 17 below, and the U.N. General Assembly Resolutions on National Sovereignty Over Natural Resources, to cite only two examples.

9 Draft Articles on the Continental Shelf and Belated Subjects, Part III, Belated Subjects, Art. 3, International Law Commission, Report Covering the Work of its Third Session, May 16-July 27, 1951, 1951 I.L.C. Yearbook (Vol. 2) 123, 143, U.N. Doc. A/1858 (1951).

10 Mouton, note 5 above, at 441. See also Mouton, The Continental Shelf at 138, 160-161 (1952); 1 Gidel, Le Droit International Public de la Mer 488 (1932); McDougal and Burke, note 7 above, at 653-654; Papandreou, note 5 above, at 146.

11 This would appear to be more in keeping with traditional usage. See the citations in notes 22 and 30 below. But ef. McDougal and Burke, note 7 above, at 661-662.

12 The standard oceanology work, Sverdrup, Johnson and Fleming, The Oceans— Their Physics, Chemistry, and General Biology (2d ed., 1946), tells us, at 280-281: “[T]he population of the sea may be divided into three large groups—namely, the benthos, nekton, and plankton, the first belonging to the benthic region and the other two to the pelagic region. ” In the benthos … are included the sessile, creeping, and burrowing organisms found on the bottom of the sea. Representatives of the group extend from the hightide level down into the abyssal depths. The benthos comprises (1) sessile animals, such as sponges, barnacles, mussels, oysters, crinoids, corals, hydroids, bryozoa, some of the worms, all of the seaweeds and eel grasses, and many of the diatoms, (2) creeping forms, such as crabs, lobsters, certain copepods, amphipods, and many other Crustacea, many protozoa, snails, and some bivalves and fishes, and (3) burrowing forms, including most of the clams and worms, some Crustacea, and echinodenns.“ The submission is that the legal category of sedentary fisheries should be limited to only the biological category of sessile forms of the benthic division—the burrowing and creeping forms being excluded. This definition would exclude organisms, such as the trochus, green snail and the “sacred chank of India and Ceylon” (Bailey, note 5 above) as well as shrimps, crabs, lobsters, and langoustes. See par. 2 of the proposal for a Sedentary Fisheries Article in the Appendix hereof.

13 For an indication of the general terms of the proposal for a Sedentary Fisheries Article, see the Appendix hereof.

14 5 Scots Law Reptr. 158, 40 Sc. Jur. 119 (Ct. of Sess., 1868). See, e.g., O'Connell, “Sedentary Fisheries and the Australian Continental Shelf,” 49 A.J.I.L. 185, 207-208 (1955). But see, for critical comments on this acceptance, M. Mouton, The Continental Shelf 148-151 (1952); Papandreou, note 5 above, at 139-140. And see generally Young, “Sedentary Fisheries and the Convention on the Continental Shelf,“ 55 A.J.I.L. 359, 361 (1961).

15 See, e.g., Bailey (Australia), 6 U.N. Conf. on the Law of the Sea, Geneva 1958, Official Records (Fourth Comm.) 56-57, U.N. Doc. A/CONF. 13/42, Sales No.: 58.V.4, Vol. VI (1958) (hereinafter cited as “A/CONF. 13/42“); Souter (New Zealand), ibid, at 55. Contrast, however, de la Pradelle (Monaco), ibid, at 57.

16 Report of the International Law Commission Covering the Work of its Eighth Session, 23 April-4 July 1956, 1956 I.L.C. Yearbook (Vol. 2) 253, 297, U.N. Doc. A/3159 (1956).

17 An example is provided by the so-called “Lobster War,” 1962-1963, “waged“ between Brazil and France. It was briefly reported in 67 Revue Genfirale de Droit International Public 133 (1963) and 68 ibid. 120 (1964). See also Azzam, “The Dispute between France and Brazil over Lobster Fishing in the Atlantic,” 13 Int. and Comp. Law Q. 1453 (1964). A second example is provided by the debate between the United States and Japan regarding the classification of the Alaska King Crab. See the United States Note, signed Nov. 25, 1964, constituting the Japanese-United States Agreement on King Crab Fishing Off Alaska, 4 Int. Legal Materials 157-158 (1965), 51 Dept. of State Bulletin 892-893 (1964). For a detailed discussion of these quarrels, see Goldie, Geneva Conventions 286-289.

18 This statement may be given justified emphasis by placing in counterpoint with the examples given in note 17 above a significant fact in the history of the drafting of the sedentary fisheries clause. The Fourth Committee (whose task was to deliberate on the Continental Shelf Convention) had originally accepted a proviso to the clause which ran “ … but Crustacea and swimming species are not included in this definition.“ See Australia, Ceylon, Federation of Malaya, India, Norway, United Kingdom of Great Britain and Northern Ireland: proposal, Art. 68, A/CONF. 13/42 at 136. Subsequently, the Plenary of the Conference deleted this important proviso. 2 U.N. Conf. on the Law of the Sea, Geneva 1958, Official Records (Plenary Meetings) 15, U.N. Doc. A/CONF. 13/38, Sales No.: 58.V.4, Vol. II (1958); McDougal and Burke, note 7 above, at 656-658; Whiteman, “Conference on the Law of the Sea: Convention on the Continental Shelf,” 52 A.J.I.L. 629, 638 (1958); and Young, note 14 above, at 367. This raises an important question: Did the Plenary intend that this express negative proviso's deletion should give rise to a negative implication to the same effect? This would seem to be Sir Kenneth Bailey's view (see Bailey, note 5 above). Or does it mean that the proviso's rejection excludes its limiting terms and that Crustacea may be counted among the natural resources of the continental shelf? This latter would appear to be the position taken by Mr. Wall of the United Kingdom Delegation. See Doc. A/CONF 13/42 at 69. For a discussion of these issues, see Goldie, Geneva Conventions 286-290.

19 See also on this point, Young, note 14 above, at 371.

20 See note 9 above.

21 See the proposal for a Sedentary Fisheries Article in the Appendix hereof.

22 C. 6921, [1893-94] 110 Parliamentary Papers 759, 822 (1893). This thesis was echoed by Sir Cecil Hurst in “Whose Is the Bed of the Sea? “ 4 Brit. Tr. Bk. Int. Law 34, 40 (1923-1924).

23 C.6921, note 22 above, at 822.

24 For the International Law Commission's authoritative discussion of this concept, and agreement on the fact that it does not confer “property” rights, see International Law Commission, Summary Records (235th Meeting), 1953 I.L.C. Yearbook (Vol. 1) 347 (1959). For critical comments on this concept, see Scelle, Plateau 23, and Papandreou, note 5 above, at 140-141. See Professor Scelle's interesting observations of the potentialities of this concept, International Law Commission, Summary Records (207th Meeting), 1953 I.L.C. Yearbook (Vol. 1) 148 (1959).

25 On “non-exclusive rights” and the acquisition through individuals of a vested right to their continued exercise, see Fitzmaurice, “The Law and Procedure of the International Court of Justice, 1951-54: General Principles and Sources of Law,“ 30 Brit. Yr. Bk. Int. Law 30, 51-53 (1953). See ibid, at 52, where Fitzmaurice expressed the view that when the resources of the sea in a particular area are exploited by individuals, a vested interest may be acquired which confers special rights in relation to the area as such, i.e., rights to continue the exploitation there, even though the sedentary fishery passed under the jurisdiction of a coastal state.

26 Fitzmaurice, note 25 above, at 48-50. See also Johnson, ‘ ‘ Acquisitive Prescription in International Law,” 27 Brit. Yr. Bk. Int. Law 332, 344-345 (1950).

27 For a long period, probably for centuries, and down to 1905, Macassar, Bugi and “pre-Bugi” fishermen exploited the biological resources of Australia's northern beaches and shallow waters. These included pearl shell, tortoise shell and trochus. But the most highly prized object of the Southeast Asian fishermen's annual visits was trepang (b?che-de-mer), a sea slug valued by the Chinese both to flavor soups, and, as they believed, to enhance virility. The antiquity of this fishery may be judged from the entry dated Feb. 17, 1803, in M. Flinders, Voyage to Terra Australis 47 (1814).

28 Fitzmaurice, note 25 above, at 51-53.

29 See note 18 above and the accompanying text.

30 See Vattel, Law of Nations, Bk. I, Ch. XXIII, $287; 1 Oppenheim, International Law 628-629 (8th ed., H. Lauterpacht, 1955); Hurst, note 22 above; Goldie, “The Occupation of Sedentary Fisheries Off the Australian Coasts,” 1 Sydney Law Rev. 84 (1953); idem, note 2 above, at 543-548, 559-560.

31 For a similar argument criticizing a proposal that coastal states be exclusively permitted to “occupy” continental shelf regions adjacent to their coasts (the doctrine of “notional occupation“), see Lauterpacht, “Sovereignty Over Submarine Areas,“ 27 Brit. Yr. Bk. Int. Law 376, 420 (1950).

32 Van Cleve and Johnson, Management of the High Seas Fisheries of the Northeastern Pacific 1 (University of Washington Publications in Fisheries, New Series No. 2, 1963). See also Canada and United States of America: proposal, Additional article and Art. 58, U.N. Doc. A/CONF.13/C.3/L.69 (April 8, 1958), 5 U.N. Conf. on the Law of the Sea, Geneva 1958, Official Records (Third Comm.) 155-156, U.N. Doc. A/CONF. 13/41, Sales No.: 58.V.4, Vol. V (1958), and see Comment, ibid, at 156.

33 For a discussion of this paragraph, see notes 10-12 above and the accompanying text, and par. 2 of the proposals for a Sedentary Fisheries Article in the Appendix hereof.

34 See §III, A, 3 above.

35 See the Appendix hereof.

36 See Goldie, Davy Jones's Locker 39-48.