Photo: Identifying with precision Australia's maritime borders for the purposes of implementing 'Operation Sovereign Borders' is challenging. (Audience submitted: Adrian Yates)
The Coalition faces a potential conflict between its 'Operation Sovereign Borders' policy and the principle of freedom of navigation which underpins the law of the sea, writes Donald R Rothwell.
Last week's announcement by the Coalition of its 'Operation Sovereign Borders' policy, which incorporates its long-standing position on turning back asylum seekers boats when safe to do so, raises significant issues with respect to how an Abbott government would seek to protect Australia's borders consistently with international law.
It comes at a time when Australia's maritime borders have in recent years been expanding consistently with Australia's entitlements under the international law of the sea. But additional entitlements to Australia's maritime domain, which in total now encompasses a total of 11 million square kilometres of ocean space, also brings significant international responsibilities including respecting the rights of other users.
Border protection aligned with national security was at its height in Australia during World War II when both Darwin and Sydney were attacked, however, Australia's physical borders have not been threatened by hostile foreign forces since that time. This has partly been due to Australia's relative geographic isolation, the fact that the only land borders Australia shares are in Antarctica with friendly countries such as France and New Zealand, and the fact that the post-war military conflicts Australia has been involved in have predominantly been well beyond Australia's immediate borders.
As a predominantly island nation, Australia enjoys distinctive levels of land border security that do not apply to those countries who share land borders. The United States, for example, shares a 3000km long land border with Mexico which in recent years has been characterised by beefed up US border security in order to stop illegal immigrants. Over 1,000km of the border has been fenced by the US and there remain ongoing debates in Washington over the need for additional security measures.
While there has never been equivalent debates in Australia over the need to 'fence the border', Campbell Newman's recent comments over Queensland's concerns with respect to Torres Strait border security directly raised issues over the security of the Australia's maritime border with Papua New Guinea.
Debates in Australia since the 2001 Tampa incident have predominantly focussed on the security of Australia's maritime borders, yet there is little understanding that Australia claims four maritime zones which each have their own separate borders, some of which create boundaries with countries as diverse as Timor Leste and France.
As an active participant in debates that eventuated in the conclusion in 1982 of the United Nations Convention on the Law of the Sea, which Australia ratified in 1994, Australia has been able to proclaim four separate maritime zones over its adjacent maritime domain, each of which provides for distinctive rights and responsibilities. Patrol and protection of these zones and ultimately the borders that comprise their outer limits is coordinated by Border Protection Command, a multi-agency Commonwealth taskforce with significant engagement from Australian Customs and the Australian Defence Force. Australian law and Australia's maritime security is enforced within these different maritime borders consistently with a national and international legal framework.
Under the Convention, Australia claims a 12-mile territorial sea. Australia exercises sovereignty and enforces Australian law within those waters equivalent to that which applies on land subject only to the right of foreign shipping to exercise the right of freedom of navigation by way of innocent passage.
Between 12 and 24 miles, Australia claims a contiguous zone within which limited powers can be exercised over certain types of activities including immigration and customs matters. Conterminous with the contiguous zone and commencing at the 12-mile limit of the territorial sea are two related maritime zones - the exclusive economic zone and the continental shelf.
These zones are principally areas of environmental jurisdiction and resource sovereignty where rights can be exercised with respect to natural resources such as fisheries, oil and gas. Australia claims both of these zones out to 200 miles consistently with the Convention, though in some places the continental shelf extends beyond 200 miles. In 2012, Australian proclaimed new outer limits for the continental shelf in line with international recommendations, the consequence of which was that Australia's maritime borders were expanded to encompass new areas of ocean space.
Identifying with precision Australia's maritime borders for the purposes of implementing the Coalition's proposed 'Operation Sovereign Borders' is therefore challenging and account needs to be taken of the differential rights and responsibilities Australia has under international law within each of the four maritime zones over which Australia can exercise sovereignty and jurisdiction.
Australia can consistently with international law use the Navy to enforce Australian fisheries law within the Australian exclusive economic zone, or to protect oil rigs located on the continental shelf. It currently uses a mix of defence and civilian assets to undertake these tasks at sea with coordination from Border Protection Command.
However, unlike the US response to Mexican immigration, Australia cannot metaphorically build fences at sea principally because international law recognises that all ships of all nations enjoy the freedom of navigation which particularly applies in the exclusive economic zone and above the continental shelf.
Likewise, intercepting vessels carrying asylum seekers beyond the limits of the 24-mile contiguous zone is not permissible under the law of the sea. Any adjustments to Australian law and policy as they apply to Australia's maritime border protection therefore needs to take these factors into account, lest Australia run the risk of infringing international law and find itself before an international court defending an aggressive maritime border policy.
Donald R Rothwell is Professor of International Law at the ANU College of Law, Australian National University. View his full profile here.
Australia can't simply build fences at sea - The Drum (Australian Broadcasting Corporation)
