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Australian Year Book of International Law |
David Letts[∗]
Professor Shearer’s long career as an international law practitioner has been complemented by an equally long period of service as a member of the Australian Defence Force Reserve. The vast majority of that period was spent as a member of the Royal Australian Navy Reserve (RANR), with Professor Shearer eventually retiring (due to antiquated ‘age’ requirements) having reached the rank of Captain.
The subject matter that is addressed in this essay attempts to cover a range of the areas that Professor Shearer has had some involvement with during his period as a member of the RANR. Of course, the essay completely fails to provide anything like a comprehensive review of Professor Shearer’s work as a member of the RANR. Nor does the essay provide the reader with an adequate sense of the selfless enthusiasm with which Professor Shearer nurtured scores of naval lawyers, permanent and reserve, during his long period as an RANR legal officer.
It has been my privilege to benefit from Professor Shearer’s knowledge on many occasions. It is hoped that this essay may serve as a small token of thanks, on behalf of all naval personnel who have had the fortune to receive instruction or other assistance from Professor Shearer, for the dedication with which he has served his country as a member of the RANR.
Recent history has seen unparalleled developments in both the laws governing the use of the world’s oceans and the laws affecting military operations on, over, and under these oceans. This essay will selectively examine a number of military operations that have occurred in recent years involving the Royal Australian Navy (RAN) and highlight the impact of the law of the sea in the planning and execution of these military operations.[1] Other significant legal considerations that have affected each operation will also be discussed.
While not all of the examples listed below will be examined, it is noteworthy that in recent years the RAN has been involved in:
• maritime interception operations in the Persian Gulf from 1990 until the present time;
• warfighting in the Persian Gulf during Operation Falconer[2] in 2003;
• peace support operations in East Timor during 1999-2000 (and continued involvement in the subsequent United Nations (UN) peacekeeping mission);
• numerous disaster relief operations in Australia and the region;
• evacuation of foreign nationals, and subsequent operations to promote stability, in the Solomon Islands in 2000-01 and again in 2003; and
• enforcement of domestic legislation, including border protection, in Australia’s offshore zones.[3]
In addition to the above operations, the RAN has also continued its role of regional engagement and participation in exercises with navies throughout the Asia Pacific. Each activity undertaken by the RAN has brought unique legal challenges, and each has required careful consideration of the legal issues, particularly the law of the sea, that underpin the successful deployment of a naval vessel every time it leaves its home port.
The military operations that are examined in this essay commence with the period that (loosely defined) marked the end of the Vietnam War. This period also marked the beginning of the long negotiations that ultimately resulted in the opening for signature of the UN Convention on the Law of the Sea (UNCLOS)[4] at Montego Bay, Jamaica, on 10 December 1982. The significance of the impact that UNCLOS has had on military operations conducted in the maritime environment should not be underestimated. The establishment of 12 nautical miles as the maximum breadth of the territorial sea,[5] the introduction of the exclusive economic zone (EEZ),[6] and the recognition of the unique circumstances pertaining to archipelagic states[7] under UNCLOS have all contributed to a fundamentally altered operating environment for naval forces.[8] Additionally, while the major impact has certainly been on those states that are party to UNCLOS, there has also been a clear impact among those states that have not become party to UNCLOS, as so much of the operative part of UNCLOS is now widely accepted as being part of customary international law.[9]
The entry into force of UNCLOS on 16 November 1994 has, perhaps coincidentally, been accompanied by fundamental changes in the types of operations that have been undertaken by the RAN in peacetime. It has been previously noted that, for many years, naval officers did not pay much attention to the intricacies of international law, preferring to concentrate on warfighting skills, and participation in naval exercises that supported the maintenance of such skills.[10] However, it is clear that governments now place a far greater emphasis on using naval (and other military) forces as integral elements of their overall policy implementation inventory, in methods that fall well short of what might have once been considered ‘conventional warfare’. This in turn requires naval officers to have a wider grasp of a range of issues including those involving international law.
The specific recognition of an extensive series of maritime zones under UNCLOS, that are subject to varying degrees of coastal state control, can be cited as one of the primary reasons for the change in the manner in which governments have sought to use naval forces in recent years. This change has also resulted in increased awareness by naval officers that there is an onus on them to be cognisant of the legal basis for their actions. In the RAN’s case, this has resulted in the creation of a vast body of legal work to support the use of the RAN in a variety of operations that have challenged operational planners, and legal advisers, in many different ways.
Perhaps one of the least contemplated effects of UNCLOS upon military operations was the impact that treaties promoting the protection of the maritime environment might have. Although some of these treaties pre-date UNCLOS, the extensive provisions that are contained in UNCLOS part XII have fundamentally altered the maritime operating environment so that military planners have had to review many previously accepted practices. For example, the environmental aspects associated with exercise planning are now, in many respects, equally as significant as the exercise itself. My experience during the planning for, and execution of, Exercise Tandem Thrust in 2001[11] demonstrated that the need to ensure that detailed attention was paid to the maintenance of the fragile environment of the Great Barrier Reef Marine Park (GBRMP) was absolutely paramount at all times. This included such considerations as the implementation of strict vessel garbage and quarantine procedures while operating in the GBRMP, ensuring that vessels not equipped with adequate sewage treatment facilities operated in areas that permitted their easy egress from the GBRMP to discharge sewage when needed, and stringent preparation for the sinking of a de-commissioned United States Navy ship as part of the exercise’s live-fire phase.[12]
Another matter is the effect on military operations of other treaties that have dealt with protection of the marine environment. For example, at one stage there was concern among naval authorities that one of the effects of the London Convention[13] could be that firing a practice torpedo could be construed as ‘dumping’ a harmful substance into the ocean. Fortunately, common sense prevailed and a number of amendments were made to early drafts of the Convention (and the 1996 Protocol) so that there was a clear exception for dumping or disposal at sea that is ‘incidental to’ or ‘normal’ for vessels to conduct.[14]
UNCLOS has also had a consequential effect on military operations conducted at sea when the laws of armed conflict have been applicable. This effect can be manifested in simple terms, such as the need to ensure that belligerent military operations do not interfere with the legitimate use of the oceans by other users. Alternatively, the effect can be viewed in somewhat more complex terms, such as the need to observe the requirements specified under UNCLOS for the passage of warships in the various maritime zones, while still being able to successfully engage in belligerent actions.
While it is not the intention of this essay to laboriously plough through each of the key provisions of UNCLOS, it is clear that the codification of the law of the sea and subsequent entry into force of UNCLOS, has had a telling effect on the way in which naval forces can use the oceans.[15] Amplification of this effect, by way of reference to recent naval operations, will be provided in the discussion that follows in this essay.
Before turning to consideration of some recent RAN operations, it is appropriate to set the scene by reference to the role played by permanent and reserve force RAN legal officers during the past three decades.
The RAN’s involvement in the Vietnam War included tours of duty by the three guided-missile destroyers, HMAS PERTH, HMAS HOBART and HMAS BRISBANE, as well the destroyer HMAS VENDETTA, logistic support from the fast troop transport HMAS SYDNEY, a Clearance Diving Team and a Helicopter Flight.[16] If such an operation took place now, the potential complexity in the legal issues that are likely to be encountered would result in the deployment of a large number of military lawyers, as well as considerable legal support from those who remain in Australia. However, the reality during the Vietnam War was that there were very few lawyers directly involved in supporting operations at any level. As far as the RAN was concerned, there was never any suggestion that a military lawyer might be needed to support directly the operations being conducted by RAN units in the War.
The lack of direct involvement of military legal officers in naval operations throughout the 1970s continued through the 1980s and was not seriously addressed until the early part of the 1990s. Despite the existence of a sea-going billet for a legal officer onboard the aircraft carrier HMAS MELBOURNE, the role performed by that officer did not involve detailed consideration of the sorts of issues that are routinely confronted by today’s legal officers when deployed. In particular, the emphasis now placed on all aspects of international law had not been felt at that stage. Additionally, many of the legal complexities associated with modern naval operations were simply not encountered during the 1970s and much of the 1980s, so the requirement for detailed and specialised naval legal advice, at sea, was not as apparent in those years as it is now.
Of course, while there may have been a shortage of permanent force RAN legal officers with the requisite knowledge of international law in the 1970s and 1980s, it would be wrong to suggest that there was no interest or expertise in the subject available to the RAN. A number of eminent legal scholars, most notably the late Professor Daniel O’Connell and Professor Ivan Shearer, began an association with the RAN during this period.[17] These officers provided advice, training and passed on their detailed knowledge of international law (including the law of the sea) to scores of RAN officers of all specialisations during regular periods of instruction. The 1980s also marked the time when a number of permanent force RAN legal officers developed a deep interest in international law, which led to advances in educational opportunities, allowing the study of international law to be undertaken as an essential part of legal officer training.[18]
The current position is that RAN legal officers form an integral part of the operational planning staff at Maritime Headquarters in Sydney, and are routinely deployed when major operations (and exercises) are undertaken. RAN legal officers also serve in international law billets in higher headquarters staff in Sydney and Canberra. The RAN has benefited from the continued involvement of a number of eminent international lawyers as members of the RAN Reserve. In recent years RAN legal officers, both permanent and reserve force, have been deployed on operational service to East Timor,[19] the Middle East,[20] the Southern Ocean[21] and the Northern Australia area during Operation Relex.[22]
During the 1970s, at the same time that the negotiations that eventually led to the adoption of UNCLOS were occurring, the RAN began deployments to the North-West Indian Ocean.[23] It was a time when the Cold War was at its height, and tensions between the Eastern Bloc and the West were high. When forces of the Union of Soviet Socialist Republics (USSR) entered Afghanistan in December 1979, the Australian government decided that the RAN should deploy five vessels on an ‘extended flag-showing cruise through the Indian Ocean’.[24] RAN involvement in the region continued during the 1980s with a small number of RAN officers serving on exchange duty in Royal Navy and United States Navy vessels during the period of the Iran-Iraq ‘Tanker War’.
In hindsight, this growing familiarity with the Indian Ocean, and the Gulf region in particular, meant that there were no great operational surprises for the RAN when Prime Minister Hawke announced that a RAN task group would be sent to the region in response to the Iraqi invasion of Kuwait.[25] Legally, however, the maritime interception operations (MIO) that would be conducted in the Persian Gulf presented a range of new legal challenges that the RAN needed to address, and two of these will be discussed below.
While the first issue was not a new one, the RAN had not previously had to concern itself directly with the question of the status of all the waters in the Persian Gulf. The captains of the RAN vessels operating in the Gulf needed to know with absolute precision the claims each state in the Gulf had made, and just as importantly, Australia’s position in relation to each claim. Iran, in particular, had long-standing claims regarding its baselines that required detailed analysis of the relevant articles in UNCLOS,[26] as the RAN had no desire to provoke Iranian forces while conducting MIO.[27] Considerable legal research was undertaken prior to the initial deployment of RAN vessels, involving a broad range of Australian government agencies, to ensure that there was a clear understanding of whether or not each states’ claims were in accordance with UNCLOS,[28] and this practice continued for each subsequent deployment under Operation Damask.[29]
The second key area that required legal consideration for all MIO deployments was one that is always problematic: clear definition of the applicable parameters for the use of force. Authorisation for states to use force pursuant to a UN Security Council resolution, even when issued under chapter VII of the UN Charter, does not provide sufficient guidance to an operational commander on how that force should be applied. Regulation of the level of force that can be applied in a particular operation is achieved through the promulgation of Rules of Engagement (ROE) to the operational commander by the national command authority of the state that sends forces to enforce the resolution.
In relation to MIO, consideration of the applicability of the law of armed conflict applicable at sea, the provisions of UNCLOS and customary international law was required before any ROE could be issued. UNCLOS is unfortunately not especially helpful in this regard, as the Convention is strikingly silent on what level of force may be used, by whom, and in what circumstances.[30]
The issue was particularly crucial for these personnel who were to be directly involved in boarding operations. Accordingly, it was necessary to develop very clear operational directions, based on the legal principles that underpin the use of force in the maritime environment, for MIO.[31] As mentioned above, this direction is given to military forces in the form of ROE for each operation. The precise details of ‘mission specific’ ROE are classified (and therefore cannot be discussed in this essay) so that maximum protection of the forces that are deployed can be achieved. However, there is considerable emphasis placed on training all deploying personnel about the legal basis for, and the application of, the ROE so that they are as well prepared as possible for any use of force while deployed. Additionally, a special ongoing training regime, including consideration of the legal basis for the use of force, was instituted for the boarding parties that were to actually carry out the MIO.
In some ways, the use of force is less problematic in situations where an enemy has been declared and the laws of armed conflict apply. There have only been a few occasions in which Australian vessels have been involved in an armed conflict since the end of the Second World War. The Korean War, the Malayan Emergency and the Vietnam War all involved the RAN to some extent, as did the war following the Iraqi invasion of Kuwait in 1990-91. RAN vessels were again involved in an armed conflict during 2003 when deployed to the Persian Gulf as part of Australia’s contribution to the war in Iraq, and it is this involvement that will be the focus of discussion below.
A number of interesting operational and legal issues arose out of the RAN deployment to the Persian Gulf in 2003. However, before discussing these issues it is useful to survey briefly the applicable legal regimes that specifically apply to naval operations in armed conflict. First, while UNCLOS makes no specific reference to armed conflict at sea, this does not make UNCLOS of no relevance during such periods. In fact, quite the opposite is true, and planners and executors of military operations must be cognisant of these articles of UNCLOS that are applicable when they are engaged in armed conflict at sea. This is particularly relevant in terms of ensuring that belligerents do not interfere with the rights of coastal (or archipelagic) states that are not party to the conflict, as well as ensuring that the passage rights of vessels not involved in the conflict are not unnecessarily interfered with.
The next point to consider is the lex specialis that applies in times of armed conflict at sea. The treaty basis for the laws of naval warfare remains those that were agreed at the Hague Conference in 1907.[32] These laws were considered by a group of international legal and naval specialists under the patronage of the International Institute of Humanitarian Law from 1987-94, and the result was published as ‘the San Remo Manual’ in 1995.[33] This publication, while not a source of international law, may nevertheless be considered a ‘subsidiary means for the determination of the rules of law’.[34]
It is not necessary, for present purposes, to consider the entire spectrum of the laws of naval warfare. The most significant aspects of the involvement of RAN vessels in the 2003 Gulf conflict, from a legal perspective, were the events of 21-22 March 2003. On those days HMAS ANZAC provided naval gunfire support (NGS) during the British Royal Marine assault on the Al Faw Peninsula, and a boarding party from HMAS KANIMBLA discovered that a barge being towed by an Iraqi tug contained sea mines that were awaiting deployment.[35] The provision of NGS by HMAS ANZAC needed to accord with Australia’s international obligations under the laws of armed conflict, including those that are applicable under the Hague Conventions and Additional Protocol I of the Geneva Conventions.[36] As well as being legally sustainable in terms of the jus in bello, ANZAC’s actions needed to be militarily valid. On both counts, there appears little doubt that the operation conducted by ANZAC was completely successful.[37]
In relation to the actions of HMAS KANIMBLA, different legal considerations were applicable. There are a number of legal bases that could have been used to conduct a boarding operation, apart from any authority that may have been derived from relevant UN Security Council resolutions. For example, UNCLOS provides a right of visit in certain circumstances when a warship encounters another vessel on the high seas.[38] Also, under the laws of naval warfare, there is a right of visit, search and (if applicable) capture that is available to belligerent warships.[39] The fact that there was undoubtedly a state of armed conflict existing between coalition forces and Iraq, meant that the latter basis could more properly be used as the rationale for the legality of the search and subsequent capture of the mines on board the Iraqi vessel. Needless to say, the potential consequences of not intercepting the mines were of the greatest significance and the fact that KANIMBLA was able to stop the laying of these mines can be regarded as a major operational success.
The deployment of the multinational force under unified command, with Australia as the lead nation, to East Timor in September 1999, marked the most significant military operation undertaken by Australian forces since the Vietnam War. This force, known as the International Force for East Timor (INTERFET), was authorised by the UN Security Council following the widespread unrest that accompanied the announcement of the result of the election held in East Timor at the end of August 1999.[41] For the RAN, the deployment involved 14 vessels,[42] as well as RAN Clearance Diving Teams 1 and 4 and elements from the RAN’s Hydrographic Service. For a navy the size of the RAN, the number of force elements that were involved was significant.
Equally significant were the legal issues that needed to be addressed to ensure that the deployed units could operate successfully in the maritime environment surrounding East Timor. First, was the need for clarity of the status of the waters surrounding East Timor among the naval forces that were deployed by the states that contributed warships and auxiliaries to the INTERFET operation.[43] It has been noted earlier in this essay that one of the initiatives introduced by UNCLOS was the regime associated with archipelagic states, such as Indonesia. Each nation that deployed naval forces acted in accordance with its own interpretation of the status of the waters surrounding Indonesia and East Timor. This led to challenges in coordinating naval operations in accordance with an agreed common interpretation of the status of waters, and accompanying navigational rights, in the area concerned.
In this regard, Australia’s sole recognition of Indonesia’s de jure sovereignty over East Timor, placed it in a unique situation compared with its coalition partners.[44] Australia’s formal recognition of Indonesian sovereignty over East Timor in 1979 manifested itself in a cautious Australian approach to the question of determining the status of waters surrounding East Timor. The result was that in the period from the commencement of the INTERFET deployment until 19 October 1999,[45] the Australian view was that the waters to the north of East Timor were Indonesian archipelagic waters, while those to the south were part of the Indonesian territorial sea.[46] The other members of INTERFET did not share this view.
East Timor is geographically disparate. The Oecussi enclave, to the west of the contiguous main part of East Timor, is surrounded on the landward side by Indonesian land territory and has a small coast line (generating a territorial sea) to the north. East Timor also comprises Artauro Island to the north of Dili and a number of smaller islands at the eastern end of the contiguous landmass. These geographic irregularities do not permit easy resolution of any maritime delimitation issues that might arise when contemplating the extent of East Timor’s maritime boundaries.[47] Indeed, in the case of the marine non-living resources to the south of East Timor, especially oil and gas reserves, a dispute is building between Australia and East Timor regarding the validity of claims to these resources between the two states.[48]
Returning to the question of passage rights, there was initial agreement between Indonesia and Australia (as lead nation for the INTERFET deployment) that there would be freedom of movement for vehicles, vessels and aircraft throughout East Timor, including the Oecussi enclave and Artauro Island. It would only be possible for such freedom of movement to occur in the maritime environment if there was some agreement regarding air and sea corridors between the contiguous mainland and these geographically separate parts of East Timor. As events transpired, no final agreement was reached between Indonesia and INTERFET on coordinates for any sea corridors, which necessitated vessels claiming that they were exercising normal passage rights between Dili and Oecussi. Had Indonesia been so minded, it could have questioned the ‘innocence’ of such passage. There is little doubt that Indonesia could have taken the view that such passage was ‘prejudicial to the peace, good order or security’ of Indonesia.[49] The rebuttal to such a view would had to have a reliance on the authority provided by the UN Security Council, acting under chapter VII of the UN Charter, in resolution 1264 to take ‘all necessary measures to fulfil’ the mandate. This resolution could be regarded as being sufficient basis upon which the relevant parties could disregard the provisions of UNCLOS regarding innocent passage.
One final point regarding the maritime legal issues that arose during the deployment to East Timor concerned the provisions under UNCLOS that permit ‘states’ to claim a territorial sea. The status of East Timor in international law, at least from the period following withdrawal of Indonesian claims of sovereignty on 19 October 1999, until independence was recognised on 20 May 2002, was that of a non-self-governing territory under UN administration. It can be considered that in this regard, East Timor lacked the legal personality to claim a territorial sea. It may, however, be considered that the UN Transitional Administration in East Timor (UNTAET)[50] had the power to claim a territorial sea on behalf of the future state of East Timor at any time during its mandate. Nevertheless, it was my experience while deployed to East Timor in 2002, that a conscious decision was made to leave such significant matters to the East Timorese people for determination once full sovereignty had been established. The result was that all states enjoyed significant navigational freedoms, including the freedom to exploit East Timor’s limited marine non-living resources, until East Timor declared a territorial sea. Such a situation was not desirable for a state as poor as East Timor, and should be avoided in any similar circumstances in the future.
The RAN has been used for enforcement of domestic legislation in Australia’s offshore zones for many years. Until the late 1990s, this use had mainly been confined to patrols in the northern maritime regions to prevent illegal exploitation of fish resources in Australia’s EEZ. However, in the late 1990s the scope of the operations involving the RAN in protecting these resources in Australia’s EEZ was significantly altered, when it became apparent that the rich sub-Antarctic fisheries surrounding the Heard and McDonald Islands (HIMI) were being raided. The response from the Australian government saw the beginning of a series of RAN deployments to the Southern Ocean to provide support to the civil agencies that enforce Australian sovereign rights and fisheries laws in this region.[51]
There have been a number of apprehensions made from RAN vessels as a result of these deployments. The first occurred in October 1997 when a naval operation resulted in the apprehension of two vessels in the EEZ surrounding the HIMI: some 4000 kilometres south-west of Perth! A further apprehension in the HIMI was made in February 1998. All three apprehended vessels were escorted to Fremantle for prosecution under Australian domestic law, and the resulting fines were among the heaviest levied for illegal fishing by Australian courts.[52]
Apart from questions arising from the use of force,[53] the legal issues involved during hot pursuit are those that have caused the RAN most concern when operating in the Southern Ocean. The requirements stipulated under UNCLOS article 111 for a hot pursuit are detailed, and the circumstances surrounding the apprehension of the MV SOUTH TOMI in 2001 required consideration of some previously untested aspects of hot pursuit.[54] One legal issue that had to be considered was precisely what was meant by the requirement for hot pursuit to be exercised by ‘warships or military aircraft, or other ships or aircraft clearly marked and identified as being on government service’.
The SOUTH TOMI had been pursued from the HIMI EEZ across the Indian Ocean by the Australian patrol vessel, SOUTHERN SUPPORTER. The issue arose, however, because there was a possibility that the pursuit might have to be continued by a vessel from the South African National Defence Force (SANDF). In relation to pursuit by vessels, article 111 does not specify that the pursuit must be by a vessel from the coastal state where the offence is alleged to have been committed.[55] Therefore, it could be argued that there is no legal reason why a vessel of the SANDF, upon request from the Australian government, could not continue the pursuit. While this view may be valid, it was decided that the best course of action would be to avoid any legal argument regarding the validity of the hot pursuit, and effect the arrest of the SOUTH TOMI by Australian Defence Force personnel who had been transported to the vessel by the SANDF.
The other case in which hot pursuit was raised as an issue also involved an application for ‘Prompt Release’ of the vessel and was heard in the International Tribunal for the Law of the Sea (ITLOS) following the apprehension.[56] As the details of this case are examined elsewhere in this volume they will not be repeated here. However, one issue that was raised by the Russian Federation was an allegation that the circumstances of the seizure of the MV VOLGA were not in compliance with UNCLOS, due to a failure on the part of HMAS CANBERRA and its embarked helicopter to observe strictly the requirements of UNCLOS article 111. Details of the substance of the Russian Federation’s claim, and the rejection of that claim by Australia, can be found at the ITLOS website.[57] Ultimately, ITLOS decided that it did not need to adjudicate on the article 111 issue that was raised by the Russian Federation. However, the case sent a clear message to commanders of naval vessels engaged in such operations that their actions must be completely beyond reproach if they are to be sustained legally.
The examples that have been cited in this essay represent only a small sample of the ways in which the law of the sea has affected operations undertaken by the RAN. Other issues that could have been considered include the role played by the RAN in contributing to customary international law by exercising innocent, archipelagic and transit passage rights in the region as an incidental aspect of normal operational activities.[58] Another effect has been the design of the types of vessels that the RAN has acquired in recent years, to allow the vessels to better comply with the exacting environmental standards that are prescribed under UNCLOS and other treaties. More recently, Australia joined the Proliferation Security Initiative (PSI)[59] as part of the government’s response to the threat posed by the spread of weapons of mass destruction, and numerous legal issues arise as a result of RAN involvement in PSI activities.
The operations that have been described in this essay have all provided considerable legal challenges to the RAN. Conducting MIO in the Persian Gulf, warfighting in the same region, the naval operations in East Timor in 1999, and the deployments to the Southern Ocean enforcing Australia’s domestic legislation have each involved a wide variety of legal issues. The legal issues involved in conducting military operations on, under and above the world’s oceans are likely to become more complex in the foreseeable future. Dwindling marine living and non-living resources, the effects of increased global trade, as well as the changes that have occurred in the global security outlook since the attacks on the United States on 11 September 2001, will all have a consequential effect on maritime operations.
While it has not been possible to cover every aspect of RAN operations that are influenced by the law of the sea. I hope that the examples cited in this essay, provide an indication of the extent of this influence.
[∗] B Comm (UNSW), LLM (ANU), Captain, Royal Australian Navy (RAN), with more than 20 years service.
All views expressed in this paper are solely those of the author, and in no way represent any official endorsement by, or policy of, the Australian government or the RAN.[1] The operations that will be used as examples have all occurred in the period commencing with the end of the Vietnam War (in the early 1970s) to mid-2004.
[2] Prime Minister John Howard announced on 18 March 2003, that the government had committed Australian Defence Force elements in the Middle East to the coalition of military forces prepared to enforce Iraq‘s compliance with its international obligations to disarm. Australia’s contribution to the coalition was known as Operation Falconer and further details can be found at <http://www.defence.gov.au/opfalconer/default.htm> .
[3] In relation to border protection, there is a large volume of work that can be found elsewhere that provides details of the circumstances surrounding the rescue of the asylum seekers at sea by the vessel MV Tampa. F Brennan, Tampering with Asylum (2003) 41-43 provides an overview of these circumstances, and the subsequent action taken to avoid any of those persons being landed on Australian territory. S Kaye, ‘Tampering with Border Protection: The Legal and Policy Implications of the Voyage of the MV TAMPA’ in M Tsamenyi and C Rahman (eds), Protecting Australia’s Maritime Borders: The MV TAMPA and Beyond (2002) gives a comprehensive analysis of the key legal issues, domestic and international, that arose out of the MV Tampa’s arrival in Australian territorial waters at Christmas Island. There were also numerous articles written following the arrival of MV Tampa in Australian waters and the subsequent adoption of the so-called ‘Pacific solution’ by the Australian government. Eg see C Reus-Smit (ed), Refugees and the Myth of the Borderless World (2002); P Mathew, ‘Legal Issues Concerning Interception’ (2003) 17 Georgetown Immigration Law Journal 221 and D R Rothwell, ‘The Law of the Sea and the MV TAMPA Incident: Reconciling Maritime Principles with Coastal Sovereignty’ (2002) 13 Public Law Review 118.
[4] UN Convention on the Law of the Sea (10 December 1982) 1833 UNTS 397. The Convention will hereafter be referred to as ‘UNCLOS’.
[5] Ibid art 3.
[6] Ibid arts 55-75.
[7] Ibid arts 46-54.
[8] For an early appreciation of the impact of UNCLOS on Australia see M Tsamenyi, S Bateman and J Delaney (eds), The United Nations Convention on the Law of the Sea: What it means to Australia and Australia’s Marine Industries, Wollongong Papers on Maritime Policy no 3 (1993). In particular, note the contribution by I A Shearer, ‘Should Australia have Ratified the Convention?’ at 55-65 for a ‘devil’s advocate’ approach to the question of Australia’s ratification of the Convention. Also, for comment on the impact of UNCLOS on the RAN, see P D Jones, ‘1983-1991 A Period of Change and Uncertainty’ in D M Stevens (ed), The Australian Centenary History of Defence, Volume III, The Royal Australian Navy (2001) 239-40. For a contemporary analysis of some of the major issues presently facing UNCLOS see I A Shearer, ‘Oceans Management Challenges for the Law of the Sea in the First Decade of the 21st Century’ in A G Oude Elferink and D R Rothwell (eds), Oceans Management in the 21st Century: Institutional Framework and Responses (2004).
[9] It is clear that UNCLOS did not simply represent a codification of existing customary law, as it introduced too many new concepts for such a proposition to be legally or factually sustainable. Nevertheless, it is clear that parts of UNCLOS do represent customary law. Eg in relation to the EEZ, E D Brown, The International Law of the Sea: Volume 1 Introductory Manual (1994) 224 states ‘there is no doubt that the general concept of the EEZ has been accepted into the body of customary law’. See also Oceans: The Source of Life – United Nations Convention on the Law of the Sea 20th Anniversary (1982-2002) <http://www.un.org/Depts/los/convention_agreements/convention_20years/oceanssourceoflife.pdf> and R Rich, ‘Recent Developments in International Law with Implications for Australian Practitioners’ in I A Shearer (ed), International Law and the Australian Practitioner, Martin Place Papers No 3 (1993) 37.
[10] See Foreword by Vice Admiral Sir Peter Gretton in D P O’Connell, The Influence of Law on Sea Power (1975) ix-xi.
[11] Further details regarding the Tandem Thrust series of exercises can be found at <www.globalsecurity.org/military/ops/tandem-thrust.htm>.
[12] Tandem Thrust was planned during a period when there was overlap between the entry into force of the Environment Protection and Biodiversity Conservation Act 1999, which commenced on 16 July 2000, and the various pieces of legislation that previously governed environmental protection in Australia. See <http://www.deh.gov.au/epbc/publications/pubs/overview.pdf> for an overview of the purposes of the Environment Protection and Biodiversity Conservation Act 1999 and details of the legislation that the Act replaced.
[13] Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (13 November 1972) ATS 1985 16 (London Convention) and 1996 Protocol [1985]. Previously known as ‘the London Dumping Convention’, both the Convention and the 1996 Protocol are available at <http://www.londonconvention.org/main.htm> . It is noted that at the time of writing the 1996 Protocol is not yet in force, but it has been incorporated into Australian domestic law through the Environment Protection (Sea Dumping) Act 1981.
[14] See the definitions applicable for each instrument: art III (1) of the London Convention and art 1(4) of the 1996 Protocol.
[15] Numerous papers have been written regarding the effect of UNCLOS on naval operations. Eg see I A Shearer, ‘The United Nations Convention on the Law of the Sea: Strategic and Military Implications for Australia’ (1995) 16 Journal of the Royal United Services Institute of Australia 49-57.
[16] D M Stevens (ed), The Australian Centenary History of Defence, Volume III: The Royal Australian Navy (2001) 203-08 provides a succinct summary of the RAN’s involvement in the Vietnam War.
[17] For an appreciation of Professor O’Connell’s life and work see: J R Crawford, ‘The Contribution of Professor D.P. O’Connell to the Discipline of International Law’ (1980) 51 British Yearbook of International Law 1. Professor Shearer served in both the Royal Australian Air Force Reserve (1961-73) and the RAN Reserve (1973-2001) until his retirement from the RAN Reserve, with the rank of Captain, during his tenure as the Stockton Professor of International Law at the United States Naval War College, Newport, Rhode Island.
[18] It is interesting to note that international law is now one of the core subject areas that all Australian Defence Force legal officers, permanent and reserve, must master as part of their career progression. Education in this area is delivered through a collaborative program between The Defence Legal Service and the University of Melbourne’s Faculty of Law. Details of this program can be found at <http://www.defence.gov.au/legal/> (Training and Development).
[19] Operations Warden, Stabilise, Citadel and Spire <http://www.defence.gov.au/opcitadel/> .
[20] Operations Falconer, Bastille, Catalyst and Slipper <http://www.defence.gov.au/opfalconer/> <http://www.defence.gov.au/opbastille/> <http://www.defence.gov.au/opcatalyst/ and < http://www.defence.gov.au/opslipper/> .
[21] Operation Mistral <http://www.defence.gov.au/globalops.cfm> .
[22] Operation Relex (and Relex II) is the name given to ‘the Australian Defence Force operation that contributes of the whole of government program to detect, intercept and deter vessels carrying unauthorised arrivals from entering Australia through the North-West maritime approaches’. Details of Operation Relex and Relex II can be found at <http://www.defence.gov.au/globalops.cfm> .
[23] Above n P D Jones ‘1972-1983 Towards Self-Reliance’ in D M Stevens (ed), The Australian Centenary History of Defence, ‘Volume III, The Royal Australian Navy’ (2001) 229.
[24] The vessels were the aircraft carrier HMAS MELBOURNE, the destroyer tender HMAS STALWART, the fleet oiler HMAS SUPPLY, the destroyer HMAS PERTH and the destroyer escort HMAS DERWENT: ibid 24.
[25] The frigates, HMA Ships ADELAIDE and DARWIN, and the replenishment ship HMAS SUCCESS, sailed from Sydney three days after the Prime Minister’s announcement. Legal authority for what became known as Operation Damask came from UN SC Res 661 (1990), where the Security Council, acting under chapter VII of the UN Charter, called upon all states to implement a sanction regime in order to compel Iraq to withdraw its forces from Kuwait. History subsequently showed that Iraq failed to comply with the Security Council’s demands and consequently a successful military operation was conducted between January and March 1991 to expel Iraqi forces. However, the sanction regime remained in force, under a series of Security Council resolutions, until it ceased after the fall of Saddam Hussein’s regime in 2003 pursuant to UN SC Res 1483 (2003).
[26] Iran‘s claims to strait baselines were proclaimed in Acts of 12 April 1959, 21 July 1973 and 2 May 1993. For analysis of Iran’s claimed territorial seas see Department of State United States of America, ‘Limits in the Seas No. 114 – Iran’s Maritime Claims’ <http://www.law.fsu.edu/library/collection/LimitsinSeas/ls114. pdf> . See also J A Roach and R W Smith (eds), Excessive Maritime Claims (1994).
[27] The events of 1987, when the USS STARK was hit by an Iraqi missile, and 1988, when the USS VINCENNES shot down a civilian Iranian airliner, were fresh in the minds of all involved in the initial deployments to the Persian Gulf in 1990.
[28] UNCLOS s 2 ‘Limits of the Territorial Sea’ specifies the manner in which a state can draw the baselines from which the breadth of the territorial sea is measured.
[29] Operation Damask is the name given to the maritime interception operations conducted by the RAN in support of the series of UN Security Council resolutions that placed a trade embargo on Iraq following the invasion of Kuwait in August 1990. There were ten Operation Damask deployments between 1990 and 2001. The deployment of HMAS SYDNEY in October 2001 marked the end of Damask deployments and the beginning of deployments under Operation Slipper – Australia‘s contribution to the International Coalition against Terrorism. Further details are available at <http://www.defence.gov.au/opslipper/media.cfm> .
[30] Eg in relation to the territorial sea, UNCLOS art 21 allows the coastal state to adopt laws and regulations relating to innocent passage, and art 25 states that the coastal state ‘may take the necessary steps in its territorial sea to prevent passage that is not innocent’. However, UNCLOS does not stipulate what level of force may be used in taking such action. On the high seas, UNCLOS art 110 provides a warship with a right of visit in certain defined circumstances. None of these circumstances described in art 110 correspond with the action taken by RAN vessels in MIO. However, the conventional legal position is that the express authorisation for MIO provided by the Security Council under relevant resolutions negates any need for a codified right of visit under UNCLOS.
[31] Difficulties that are likely to be encountered in using force in the maritime environment for such operations have received wide attention in Australia. Eg see D R MacKinnon and R J Sherwood (eds), Policing Australia’s Offshore Zones: Problems and Prospects (1997); R M F Warner, ‘Jurisdictional Issues for Navies Involved in Enforcing Multilateral Regimes Beyond National Jurisdiction’ (1999) 14(4) The International Journal of Marine and Coastal Law 321. Internationally, cases such as The I’m Alone (Canada-United States: Special Joint Commission 1933:1935) 3 UNRIAA 1609 and The Red Crusader (1962) 35 ILR 485 have provided jurisprudence regarding what level of force might be appropriate when conducting enforcement operations in the maritime environment.
[32] The Hague Conventions of 18 October 1907 regarding naval warfare are: Convention Relative to the Laying of Automatic Submarine Contact Mines (H.VIII), Convention Relative to Certain Restrictions with regard to the Exercise of the Right of Capture in Naval War (H. XI) and Convention Concerning the Rights and Duties of Neutral Powers in Naval War (H. XIII). All reprinted in International Committee of the Red Cross, International Law Concerning the Conduct of Hostilities: Collection of Hague Conventions and some other International Instruments (2nd, ed 1996) (hereafter ‘the Hague Conventions’)
[33] L Doswald-Beck (ed), San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1995). One Australian, Professor I A Shearer, was among the group of international experts that helped to draft the San Remo Manual.
[34] Statute of the International Court of Justice, art 38 (1) (d).
[35] See John Hunter Farrell, ‘A big 48 hours for the Navy’ The Sydney Morning Herald (25 March 2003) <http://www.smh.com.au/articles/2003/03/24/1048354546906.html> Sea Power Centre – Australia, ‘Iraq Lessons: The More Things Change ...’ Semaphore Issue 6, August 2003 <http://www.navy.gov.au/spc/semaphore/html/issue6_2003.htm> .
[36] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1) (8 June 1977) [1991] ATS 29.
[38] UNCLOS art 110.
[39] See the San Remo Manual 31-36.
[40] The source for much of the material addressed in this section is Law and Military Operations in East Timor Sep 99 – Feb 00: Lessons Learnt for Legal Officers, published by the Australian Defence Force’s Military Law Centre in 2000. The author participated in an ‘INTERFET Lessons Learnt Conference’ that was held by the Military Law Centre in March 2000, which formed the basis for the above publication. Nevertheless, it is considered that specific reference should be made to the contribution to the Conference from (then) Lieutenant Commander Dale Stephens RAN who provided much of the original source material concerning maritime issues encountered during the INTERFET deployment. Also, East Timor is now officially known as Timor-Leste but the former name will be used in this essay, for reasons of consistency with documents cited, as it was the name used during the relevant time period.
[41] UN SC Res 1264 (1999).
[42] The RAN vessels involved in the peacekeeping operation in East Timor were HMA Ships ADELAIDE, ANZAC, BALIKPAPAN, BETANO, BRUNEI, DARWIN, JERVIS BAY, LABUAN, MELBOURNE, NEWCASTLE, SUCCESS, SYDNEY, TARAKAN and TOBRUK.
[43] Naval forces for the INTERFET deployment were sent by Australia, Canada, France, Italy, New Zealand, Portugal, Singapore, Thailand and the United Kingdom. The United States Navy also deployed two amphibious assault ships in support of the INTERFET deployment.
[44] In fact, Australia‘s position was in clear contrast to the majority of UN member states as expressed in UN GA Res 3485 (XXX) (1975), 31/53 (1976), 32/34 (1982) and UN SC Res 384 (1975) and 389 (1976).
[45] This was the date upon which the Indonesian People’s Consultative Assembly withdrew Indonesian claims of sovereignty over East Timor: see UN SC Res 1272 (1999).
[46] Australia considered that the maritime regime applicable in the INTERFET area of operations, which was declared to extend 12nm from the coast line of East Timor, except where the distance between East Timor and Indonesia was less that 24nm (in which case a median line was drawn), to be an exception to the general Australian interpretation regarding the waters surrounding East Timor. The authority for declaring the area of operations was drawn from UN SC Res 1264.
[47] See V Prescott, ‘The Question of East Timor’s Maritime Boundaries’ (1999) 7 IBRU Boundary and Security Bulletin 72.
[48] See A V Lowe, C Carleton and C Ward, Opinion in the Matter of East Timor’s Maritime Boundaries (2002) <www.petrotimor.com/lglop.html>. There is also a wealth of information regarding East Timor’s position in relation to the maritime boundary issue available at the Republic of Timor-Leste’s official Timor Sea Office website <www.timorseaoffice.gov.tp>. See also ‘$5b E. Timor gas project in doubt’ Canberra Times (29 July 2004) 6 and ‘Ministers push for fair deal for Timor’ Canberra Times (31 July 2004) 13. This may be contrasted with the comments from Australian Foreign Minister Downer following discussion with Timor-Leste Foreign Minister Horta on 11 Aug 2004 <http://www.foreignminister.gov.au/transcripts/2004/040811_jrh.html> . The issue remains unresolved at the time of writing.
[49] Such passage would therefore be in breach of UNCLOS art 19 and/or 52 (depending on the view taken regarding the status of the waters as being either territorial seas or archipelagic waters).
[50] UNTAET was established pursuant to UN SC Res 1272 (1999) and was ‘empowered to exercise all legislative and executive authority, including the administration of justice’ in East Timor.
[51] A brief summary of RAN patrols of the Southern Ocean can be found at the Australian Antarctic Division website <http://www.antdiv.gov.au/default.asp? casid=2111> . Further details, including an assessment of the costs involved in policing the HIMI fisheries during FY 1997-98 through to 1999-2000 can be found at <http://www.aph.gov.au/library/pubs/budget/1999-2000/19992000budget2.htm> . See also, A Bergin, ‘Policing the High Seas: Straddling Fish Stocks and Highly Migratory Species’ in D Wilson and R J Sherwood (eds), Oceans Governance and Maritime Strategy (2000) 159-61.
[52] ‘Illegal fishing brings hefty fines’ Navy News (2 November 1998) <http://www.defence.gov.au/news/navynews/editions/1998/11_02_98/story3.htm> .
[53] For further discussion of issues regarding the use of force see I A Shearer, ‘Law Enforcement Roles of Navies and Coast Guards’ in M Schmitt and L C Green (eds), The Law of Armed Conflict: into the Next Millenium (1998) 429-53 and D J Letts, ‘The Use of Force in Patrolling Australia’s Fishing Zones’ (2000) 24 Marine Policy 149.
[54] A summary of the facts involved in the hot pursuit can be found at Australian Antarctic Division website above n 51.
[55] It is noted that in relation to hot pursuit effected by aircraft, there is a specific requirement, under art 111 (6), that ‘the aircraft giving the order to stop must itself actively pursue the ship until a ship or aircraft of the coastal State, summoned by the aircraft, arrives to take over the pursuit, unless the aircraft itself is able to arrest the ship’ (my emphasis).
[56] The ‘Volga’ Case (Russian Federation v Australia), Prompt Release (2003) International Tribunal for the Law of the Sea Case No 11. Although ITLOS ordered the prompt release of the vessel Volga, the decision was not unanimous as both Judge Anderson and Judge ad hoc Shearer disagreed with the majority on the question of prompt release. See article by Lowe in this volume.
[57] See The ‘Volga’ Case, above n 56, Application of the Russian Federation [25]-[31] <www.itlos.org/start2_en.html>.
[58] By way of comparison, the United States Navy also undertakes such activity, but this is done as part of a Presidentially mandated ‘Freedom of Navigation’ program. See Department of State United States of America, ‘Limits in the Seas No 112 – United States Responses to Excessive National Maritime Claims’ (1992) <http://www.law.fsu.edu/library/collection/LimitsinSeas/ls112.pdf> .
[59] Details of the Proliferation Security Initiative can be found at <http://www.dfat.gov.au/globalissues/psi/> .
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