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Legal Implications Of Australia's Maritime Indentification System

Published online by Cambridge University Press:  17 January 2008

Natalie Klein
Natalie Klein
Affiliation:
BA (Juris) LLB (Hons) (Adelaide)LLM JSD (Yale). Senior Lecturer, Macquarie University, Australia.
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Abstract

On 14 December 2004, Australia announced the institution of a ‘Maritime Identification Zone’, extending 1000 nautical miles from its coast and involving the identification of vessels seeking to enter Australian ports, as well as vessels transiting Australia' Exclusive Economic Zone. This Article analyses the legality of these security measures under the UN Convention on the Law of the Sea, new developments through the International Maritime Organization and the Proliferation Security Initiative. The implications of prescribing and enforcing identification requirements on the high seas and in the EEZ, the impact on maritime boundaries and avenues for dispute settlement are all explored.

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Articles
Information
International & Comparative Law Quarterly , Volume 55 , Issue 2 , April 2006 , pp. 337 - 368
Copyright
Copyright © British Institute of International and Comparative Law 2006

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References

2 ibid 2.

3 ibid 1–2

4 ibid 2.

5 See United Nations Convention on the Law of the Sea (opened for signature 10 Dec 1982) Un Doc A/CONF.62/122 (1982), reprinted in Official Text of the United Nations Convention on the Law of the Sea UN Sales No E. 83 V. 5 (1983) and 21 ILM 1261 (1982) [ hereinafter UNCLOS] Art 100–7. See also RR Churchill and A V Lowe The Law of the Sea (3rd edn MUP Manchester 1999) 209 (referring to the long-established right and duty of states to act against piracy).

6 See eg UNCLOS (n 5) Art 108. See also Vienna Convention for the Suppression of Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna (20 Dec 1988) 1582 UNTS 95, UN Doc E/CONF.82/15 and Corr 1 and 2, 28 ILM 497 (1989) (entered into force 11 Nov 1990) Art 17.

7 See Protocol to the United Nations Convention against Transnational Organized Crime, Palermo (12 Dec 2000) 40 ILM 335, UN Doc A/RES/55/25, Annex III (8 Jan 2001) (not in force). See also IMO Interim Measures For Combating Unsafe Practices Associated With The Trafficking Or Transport Of Migrants By Sea, IMO Circular MSC/Circ.896 (4 Mar 1999) Annex.

8 Van Dyke, Jon M ‘Military Exclusion and Warning Zones on the High Seas’ (1991) 15 Marine Policy 147, 153–4.Google Scholar

9 Roach, J Ashley ‘Initiatives to enhance maritime security at sea’ (2004) 28 Marine Policy 41, 41. See also John S Burnett ‘The Next 9/11 Could Happen at Sea’ New York Times (New York 22 Feb 2005) (referring to the threat that piracy, and its connections to terrorism, pose to the global economy).CrossRefGoogle Scholar

10 Roach (n 9) 42.

11 ‘Remarks of the President [of the United States] to the People of Poland’ (31 May 2003) <http://www.whitehouse.gov/news/release/2003/05/20030531-2.html> cited in Roach (n 9) 42.

12 Australia, along with 14 other states, is now part of the PSI. See Byers, Michael ‘Policing the High Seas: The Proliferation Security Initiative’ (2004) 98 AJIL 526, 528. In addition to the confirmed Member States, another sixty states have agreed to cooperate on an ad hoc basic in the event a suspect ship or aircraft enters its territorial waters or airspace. Ibid 529.CrossRefGoogle Scholar

13 Shearer notes that the ‘statement of interdiction principles … steps carefully around the jurisdictional difficulties posed by the doctrine of the freedom of the high seas’ Shearer, Ivan ‘Jurisdiction’ in Blay, S et al. (eds) Public International Law: An Australian Perspective (2nd edn OUP Oxford 2005) 181.Google Scholar

14 Lloyd's List ‘Australia Security Plan Alarms Wellington’ Australian Maritime Pilots Association (17 Dec 2004) <http://www.ampa.asn.au.>.

15 Hon Phil Goff, New Zealand Minister of Foreign Affaris and Trade Australian Maritime Identification Zone Press Release (16 Dec 2004) <http://www.beehive.govt.nz/View Document. Cfm? Document ID=21857> [hereinafter NZ Press Release].

16 ibid 1.

17 ‘Indonesia Rejects Australian Maritime Zone’ (18 Dec 2004) <http://www.laksamana.net/vnews.cfm?ncat=48&news_id=7746>. See also Matthew Moore ‘ Indonesia Rejects Plan for Security Zone as Breach of Maritime Boundaries’ Sydney Morning Herald (Sydney 18 Dec 2004) <http://www.smh.com.au/news/World/Indonesia-rejects-plan-for-security-zone/2004/12/17/1102787278235.html> (referring to comments of Australia's Defence Minister, Senator Robert Hill).

18 Cynthia Banham and Agencies ‘Back off with the Bulldozer, Malaysia tells PM’ Sydney Morning Herald (Sydney 19 Dec 2004) <http://www.smh.com.au/news/National/Back-off-with-the-bulldozer-Malaysia-tells-PM/2004/12/19/1103391643054.html?oneclick=true> (reporting on comments of the Malaysian Deputy Defence Minister). Malaysia has also set forth the view that ASEAN members should protest Australia's action. ‘ASEAN Should Protest Against Aussie Proposal, Says Abdullah’ The Star (Malaysia 18 Dec 2004) <http://thestar.com.my/news/archives/story.asp?ppath=/2004/12/18&file= /2004/12/18/nation/9696351&sec=nation> (noting comment of Malaysian Prime Minister at a press conference).

19 No official announcement of the change appears to have been made, but government officials began referring to a ‘system” rather than a ‘zone’. See Department of Transport and Regional Services Background Briefing Paper ‘Strengthening Australia's Offshore Maritime Security’ (Feb 2005) <http;//www.dotars.gov.au/transsec/docs/Strengthening_offshore.pdf> [hereinafter DOTARS Briefing Paper] Deputy Secretary Andrew Metcalfe ‘Advancing the Coordination of National Security in Australia’ (21 Feb 2005) <http://www.pmc.gov.au/speeches/Metcalfe/coordination_national_security_2005-02-21.cfm>.

20 DOTARS Briefing Paper (n 19) 2. Notices from governments have been circulated to registered vessels to this effect. See Circular No 3/2005 ‘Introduction of Maritime Identification Zone by Australia’ Ministry of Communications and Works, Department of Merchant Shipping, Republic of Cyprus <http://www.shipping.gov.cy/circulars/c2005/circular_2005_03.pdf>.

21 UNCLOS (n 5). UNCLOS currently has 149 states parties. See Status of the United Nations Convention on the Law of the Sea, the Agreement relating to the implement of Part XI of the Convention and of the Agreement for the implementation of the provisions of the Convention relating to the Conservation and Management of straddling fish stocks and highly migratory fish stocks <http://www.un.org/Depts/los/reference_files/status2005.pdf> (last visited 16 Sept 2005). Australia ratified the Convention on 5 October 1994, ibid.

22 See IMO adopts comprehensive maritime security measures, Conference of Contracting Governments to the International Convention for the Safety of Life at Sea, 1974 (9–13 Dec 2002) <http://www.imo.org/Newsroom/mainframe.asp?topic_id=583&doc_id=2689>. Australia has implemented the ISPS Code through the Maritime Security Act (Cth) 2003

23 International Convention for the Safety of Life at Sea (1974) reprinted in 14ILM 959 [hereinafter SOLAS]. The ISPS Code is mandatory for all states parties of SOLAS.

24 Convention and Protocol from the International Conference on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation IMO Doc SUA/CON15 (1988), reprinted in (1988) 27 ILM 668 [hereinafter SUA Convention] (concluded simultaneously with the Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, which was intended to protect oil platforms and incorporates the SUA Convention).

25 Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Adoption of the Final Act and Any Instruments, Recommendations and Resolutions Resulting from the Work of the Conference IMO Doc LEG/CONF. 15/21 (1 Nov 2005) [hereinafter SUA Protocol]. See also Roach (n 9) 46–8.

26 NZ Press Release (n 15) 2. See also Moore (n 17).

27 SS Lotus Case (France v Turkey) 1927 PCIJ Series A No 9, 25.

28 ‘[T]he principle of the freedom of the high seas was the fundamental tenet of the law of the sea as a whole.’ UN Conference on the Law of the Sea— Official Records, Second Committee, vol 4, 27, para 5 (Israel).

29 Grotius, HugoThe Freedom of the Seas or the Right which Belongs to the Dutch to Take Part in the East Indian Trade (1633) (R Mogoffin (trans) OUP New York 1916).Google Scholar

30 See generally ibid.

31 McDougal and Burke describe the value of ‘wealth’ in claims to the ocean as ‘a goal in the great congeries of claims relating to transportation, navigation, fishing and mineral exploitation’. McDougal, Myres S and Burke, William T ‘Crisis in the Law of the Sea: Community Perspectives Versus National Egoism’ (1958) 67 Yale LJ 539, 549.CrossRefGoogle Scholar

32 Convention on the High Seas (29 April 1958) 450 UNTS 82, Art 2 [hereinafter High Seas Convention].

33 Truver, Scott C ‘The Law of the Sea and the Military Use of the Oceans in 2010’ (1985) 45 La L Rev 1221, 1237.Google Scholar

34 eg claims to rights over the continental shelf, to increased breadths of territorial seas and to the living resources in areas adjacent to the coast have always been countered by the rights of other users to the high seas. See eg Churchill and Lowe (n 5) 161 (describing the compromise proposal of the EEZ to prevent the institution of a 200-mile territorial sea); ibid 144 (discussing the debated status of the continental shelf); ibid 77–9 (setting out the controversy relating to the breadth of the territorial sea).

35 Churchill and Lowe (n 5) 255.

36 Interference is limited to the rights of visit and rights of hot pursuit, which are discussed below. See below nn 59–82 and accompanying text.

37 UNCLOS (n 5) Art 92. The duties of the flag state are then set out in Art 94 of the Convention.

38 ibid. Arts 95 and 96.

39 Oxman, Bernard H ‘The Regime of Warships Under Nations Convention on the Law of the Sea’ (1984) 24 Virginia J Intl L 809, 815.Google Scholar

40 ibid 817. See also UNCLOS (n 5) Art 30 (requiring warships that do not comply with the laws and regulations of the coastal state in its territorial sea to leave that state's territorial sea immediately).

41 PM Media Release (n 1) 2.

42 Equally, it could be argued that the mere assertion of jurisdiction in high seas areas is of itself an international law violation. As Shearer notes, ‘the mere assertion of an inadmissible prescriptive power is contrary to international law, insofar as it may put persons or entities in fear of the possible enforcement and thus restrain their lawful freedom of action’. Shearer (n 13) 156.

43 As noted above, New Zealand already has requirements in place that vessels provide information about their crews and cargo 48 hours prior to reaching New Zealand ports. See above nn 15–16 and accompanying text. Australia has similar requirements in place already for commercial ships. See Dennis Shanahan ‘PM's New Zone of Seurity’ The Australian (16 Dec 2004) <http://www.the australian.news.com.au/wireless/story/0,8262,11-11704500,00.html>.

44 Lloyd's ‘Australia Security Plan Alarms Welington’ Australian Maritime Pilots Association (17 Dec 2004) <http://www.ampa.asn.au>. See also SOLAS (n 23) Chapter V (Safety of Navigation) (requiring the fitting of automatic identification systems that are capable of providing information about the ship, such as the ship's identify, type, position, course, speed, navigational status and other safety-related information, to other ships and to coastal authorities automatically).

45 See eg Conference Resolution 10, Conference of Contracting Governments to the International Convention for the Safety of Life at Sea, 1974 (9–13 Dec 2002) <http://www. Imo.org/Newsroom/mainframe.asp?topic_id=583&doc_id=2689#resos>.

46 UNCLOS (n 5) Art 87(2).

47 Oxman (n 39) 822.

48 ibid (comparing the text of Art 302 to Art 223 of the Rome Treaty, which permits states to protect information that the state ‘considers’ would be contrary to essential security interests).

49 Guidance to Masters, Companies and Duly Authorized Officers on the Requirements Relating to the Submission of Security-Related Information Prior to the Entry of a Ship into Port MSC/Circ 1130 (14 Dec 2004) <http://www.imo.org/home.asp> [hereinafter ‘IMO Guidance’].

50 ibid para 4.

51 ibid Annex, para 7.

52 ibid Annex, para 4.

53 ibid Annex, para 13, Consistent with this recommendation, Singapore, for example, issued a circular on 1 Dec 2005, requiring at least 24 hours’ notification of security information. Maritime and Port Authority of Singapore, Port Marine Circular No 25 of 2005.

54 PM Media Release (n 1) 1.

55 See above nn 49–53 and accompanying text.

56 IMO Guidance (n 49) Annex, para 4.

57 See ‘FAQ on the ISPS Code’ <http://www.imo.org/Newsroom/mainframe.asp?topic_id=897>.

58 ibid.

59 The right of visit for the enforcement of various laws under the Convention must be distinguished from the right of visit and search that may be exercised by a belligerent state against all merchant ships during time of war. See Colombos, C JohnThe International Law of the Sea (6th rev edn D McKay Co New York 1967) 753–4. ‘The right of visit and search is a war right; it can only be expressed in time of peace by virtue of an express stipulation in an international treaty, or in the course of maintaining the security of navigation by a generally recognized usage in the interests of all nations’. Ibid 311.Google Scholar

60 UNCLOS (n 5) Art 110(1).

61 Nordquist, Myron H (ed) United Nations Convention on the Law of the Sea 1982: A Commentary (Martinus Nijhof Dordrecht 1989) 3: 238–9.Google Scholar

62 UNCLOS (n 5) Art 110(2).

63 ibid Art 110(3).

64 See ibid Art 109(3).

65 ibid Art 110(1). Concerns about the nationality of the M/V So San provided the basis for the Spanish Navy to board a Cambodian vessel wherein 15 Scud missiles were discovered. Roach (n 9) 53–4.

66 IN R v Charrington, the unlawful interference with a foreign vessel on the high seas by United Kingdom authorities was grounds for preventing the trial of those arrested on drug charges. See Martin Dixon Textbook on International Law (5th edn OUP Oxford 2005) 144 (referring to an unreported decision). Even the exercise of enforcement jurisdiction for the right of approach is limited to the infringement of the exercise of high seas freedoms. Colombos (n 59) 311 (‘Vessels may be guilty of violations of treaties or of the principles of international law relating to fishing, submarine cables, the slave trade, piracy or the misuse of a national flag; some means must exist to prevent such infractions from passing unpunished, and police jurisdiction is permitted to warships on the high seas, in the exceptional circumstances so defined’).

67 See Garvey, Jack I ‘The International Institutional Imperative for Countering the Spread of Weapons of Mass Destruction: Assessing the Proliferation Security Initiative’ (2005) 10 J Conflict and Security L 125, 129 (referring to the various United States’ descriptions of the PSI as an ‘international partnership of countries’, principles that states are ‘committed to’, ‘an activity, not organization’, and ‘a collection of interdiction partnerships’).CrossRefGoogle Scholar

68 Proliferation Security Initiative: Statement of Interdiction Principles (4 Sept 2003) Principle 4 <http://www.state.gov/t/np/rls/fs/23764.html> (requiring specific actions to be taken by participant states ‘to the extent their national legal authorities permit and consistent with their obligations under international law and frameworks’). Participant states have also agreed in Priniciple 3 to work ‘to strengthen when necessary relevant international law and frameworks in appropriate ways to support these commitments’. Ibid. This commitment forecasts the possible development of customary international law consistent with the PSI.

69 Principle 4 refers to interdictions within the territorial seas, internal waters and ports of participant states, but otherwise only anticipates interdictions to be authorized against vessels flagged to the particular participant state. Ibid.

70 There has been some controversy over the scope of the ‘related materials’ that may be subject to interdiction activities pursuant to the PSI, particularly in view of the dual-use to which the majority of these materials may be put. See Becker, Michael A ‘The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea’ (2005) 46 Harvard Intl LJ 131, 159–60.Google Scholar

71 The United States has so far entered into bilateral ship boarding agreements with Belize, Croatia, Cyprus, Liberia, Marshall Islands, and Panama. ‘The combination of states with which [the United States has] signed bilateral ship boarding agreements, plus the commitments made by other Proliferation Security Initiative partners under the Statement of Interdiction Principles, translates into more than 60 per cent of the global commercial shipping fleet dead weight tonnage now being subject to rapid action consent procedures for boarding, search, and seizure.’ The United States and Belize Proliferation Security Initiative Ship Boarding Agreement Media Note (4 Aug 2005) <http://www.state.gov/r/pa/prs/2005/50787.htm>.

72 SUA Convention (n 24). Australia acceded to this treaty on 19 Feb 1993. Australian Treaty Series 1993 No 10.

73 ibid Art 9. Art 9 was included in the SUA Convention to ensure that states parties were entitled to establish jurisdiction over certain offences, rather than exercise jurisdiction. See Plant, Glen ‘The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation’ (1990) 39 International and Comparative Law Quarterly 27, 45.CrossRefGoogle Scholar

74 See above nn 24–5 and accompanying text. The SUA Protocol opens for signature on 14 Feb 2006 and will enter into force 90 days after the 12th state becomes party to the instrument. SUA Protocol (n 25) Art 18.

75 SUA Protocol (n 25) Art 3bis. Article 3ter. further extends state jurisdiction in relation to the transport of a person who has committed a range of offences in treaties included in an Annex to the SUA Protocol. Ibid Art 3ter.

76 ibid Art 8bis para 5(b).

77 ibid Art 8bis paras 5(c)–(e).

78 See O'Connell, D PThe International Law of the Sea (Shearer, A (ed) Clarendon Press Oxford 1984) 2: 1078–9 (describing the entrenched position of the right and consequent lack of controversy over the right during the progressive codification of the law of the sea).Google ScholarSee als Reuland, Robert C ‘The Customary Right of Hot Pursuit onto the High Seas: Annotations to Article 111 of the Law of the Sea Convention’ (1993) 33 Virginia J Intl L 557, 557.Google Scholar

79 Poulantzas, Nicholas MThe Right of Hot Pursuit in International Law (A W Sijthoff Leyden 1969) 39.Google Scholar

80 UNCLOS (n 5) Art 111 (1) and (2).

81 UNCLOS (n 5) Art 111(1).

82 ibid Art 111(2).

83 See Truver (n 33) 1221 (‘Sea Power will be a fundamental tool of coercive and supportive diplomacy employed by coastal and maritime states alike to safeguard all their interests in the oceans, particulary in light of the potential for international tension and crisis to arise over ocean rights and obligations.’). See also O'Connell, D PThe Influence of Law on Sea Power (Naval Institute Press Anapolis 1975) 10 (referring to the resolve an array of claims).Google Scholar

84 Booth considers that the drafters of the Convention deliberately followed the tactic of silence, and that a number of rights for navies are hidden within that silence. Booth, Kenneth ‘The Military Implications of the Changing Law of the Sea’ in John, King Gamble Jr (ed) Law of the Sea: Neglected Issues (Law of the Sea Institute University of Hawaii Honolulu 1979) 340.Google ScholarSee also Rauch, Elmar ‘Military Uses of the Oceans’ [1984] 28 German Ybk Intl L 229, 231 (noting that all substantive discussion of questions with security policy or military implications was off the record and that assorted euphemisms are used to refer to military uses).Google Scholar

85 Shyam, Majula R ‘The UN Convention on the Law of the Sea and Military Interests in the Indian Ocean’ (1985) 15 Ocean Development and Intl L 147, 149.CrossRefGoogle Scholar

86 See O'Connell (n 78) 809; Rao, P Sreenivasa ‘Legal Requlation of Maritime Military Uses’ (1973) 13 Indian J Intl L 425, 435.Google Scholar

87 See UNCLOS (n 5) Art 87; High Seas Convention (n 32) Art 2.

88 PM Media Release (n 1) 2 (emphasis added).

89 Art 58(3) reads in relevant part, ‘In exercising their rights and performing their duties under this Convention in the exclusive economic Zone, States … shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.’ UNCLOS (n 5) Art 58(3).

90 Kwiatkowska, BarbaraThe 200 Mile Exclusive Economic Zone in the New Law of the Sea (Martinus Nijhoff Dordrecht 1989) 4.Google Scholar

91 See Galdorisi, George V and Kaufman, Alan V ‘Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict’ (2002) 32 California Western Intl L J 253, 262.Google Scholar

92 UNCLOS (n 5) Art 56(1)(a).

93 ibid. Art 56(1)(a). Art 56(1)(c) also acknowledges that other provisions in UNCLOS may accord further rights to the coastal state in the EEZ.

94 ibid. Art 56(1)(b).

95 PM Media Release (n 1) 2.

96 See UNCLOS (n 5) Arts 56, 61, 62. See also Klein, NatalieDispute Settlement in the UN Convention on the Law of the Sea (CUP Cambridge 2005) 177–85.CrossRefGoogle Scholar

97 Australia would also be entitled to require information of vessels if it was for the purpose of ensuring that those vessels were not in violation of rules relating to the protection and preservation of the marine environment. Coastal states are entitled to seek information regarding a vessel's identity and port of registry, its last and next port-of-call and other relevant information to establish whether a violation of environmental laws has occurred. UNCLOS (n 5) Art 220(3). Australia does not seek the information for this purpose, however.

98 Other high seas freedoms are incorporated into the EEZ provided that they are not incompatible with the EEZ regime in Part V of the Convention UNCLOS (n 5) Art 58(2).

99 Richardson, Elliot L ‘Power, Mobility and the Law of the Sea’ (1970–80) 58 Foregin Affairs 902, 907 (‘they must be qualitatively the same in the sense that the nature and extent of the right is the same as the traditional high-seas freedoms; they must be quantitatively the same in the sense that the included uses of the sea must embrace a range no less complete—and allow for future uses no less inclusive—than traditional high-seas freedoms’).CrossRefGoogle Scholar

100 This position is subject, however, to competing claims of third states, which is discussed below at nn 120– and accompanying text.

101 See above nn 83–7 and accompanying text.

102 See eg Richardson, Elliot L ‘Law of the Sea: Navigation and Other Traditional National Security Considerations’ (1982) 19 San Diego L Rev 553, 573.Google ScholarSee also Francioni, Francesco ‘Peacetime Use of Force, Military Activities, and the New Law of the Sea’ (1985) 18 Cornell Intl LJ 203, 214 (noting that the majority of authors believe that military uses of the seas remain unaffected by the establishment of the EEZ).Google Scholar

103 Rauch (n 84) 252.

104 Brazil, Cape Verde, and Uruguay have taken this view. United Nations, Office of the Special Representative of the Secretary-General for the Law of the Sea, Law of the Bulletin No 5 (1985) 6–7, 8, 24. An attempt to introduce a requirement of coastal state consent for naval operations other than navigation in the EEZ during the drafting of the Convention did not succeed. Francioni (n 102) 215.

105 ibid 216.

106 The United States has seemingly confirmed this broad applicability in stating that ‘[t]he right to conduct [military] activities will continue to be enjoyed by all States in the exclusive economic zone.’ Warren Christopher United States of America Statement in Right of Reply (8 Mar 1983) 17 Third Conference on the Law of the Sea, Official Records 244, UN Sales E.83.V.3 (1984) (emphasis added).

107 See Oxman (n 39) 846.

108 Burke, William T ‘National Legislation on Ocean Authority Zones and the Contemporary Law of the Sea’ (1981) 9 Ocean Development and Intl L 289, 299.CrossRefGoogle Scholar

109 Galdorisi and Kaufman (n 92) 287 (referring in particular to Nort Korea's 50-mile security zone, which is intended to ‘firmly defend militarily the national interests and sovereignty of the country’). See also Astley, John III and Schmit, Michael N ‘The Law of the Sea and Naval Operations’ (1997) 42 Air Force L Rev 119, 137 (citing to Bangladesh, Burma, Cambodia, China, Egypt, Haiti, Iran, North Korea, Nicaragua, Pakistan, Saudi Arabia, Sri Lanka, Sudan, Syria, United Arab Emirates, Venezuela, Vietnam, and Yemen).Google Scholar

110 Galdorisi and Kaufman (n 92) 290 (describing the United States' view that claims to security zones extending beyond 12 miles are considered as excessive under international law). See also ibid 291 (noting United States' protests against expanded claims of authority in contiguous zones).

111 Burke (n 108) 294 (setting out the view that generally coastal states have preferred limited to comprehensive authority and not extended that authority to matters of broadly inclusive interest).

112 ibid 294 (referring to legislation in India, Guyana, Mauritius, Pakistan, and Seychelles).

113 Galdorisi and Kaufman (n 92) 288.

114 Nadelson, Robert ‘The Exclusive Economic Zone—State Claims and the LOS Convention’ (1992) 16 Marine Policy 463, 486. See also Galdorisi and Kaufman (n 92) 289 (agreeing that UNCLOS ‘does not assuage coastal State fears, and so some States act independently of it to protect themselves’).CrossRefGoogle Scholar

115 UNCLOS (n 5) Art 220(6) and Art 226(1)(c).

116 ibid Art 73(4). See also ibid Art 226(1)(c) (‘Where release has been refused or made conditional, the flag State of the vessel must be promptly notified, and may seek release of the vessel in accordance with Part XV’).

117 See above nn 95–7 and accompanying text.

118 Robertson, Horace ‘Navigation in the Exclusive Economic Zone’ (1984) 24 Virginia J Intl L 865, 902.Google Scholar

119 M/V Saiga (No 2) (Saint Vincent and the Grenadines v Guines) (Admissibility and Merits) 120 ILR 143.

120 ibid para 136.

121 Oxman, Bernard H ‘The Third United Nations Conference on the Law of the Sea: The 1976 New York Session’ (1977) 71 AJIL 247, 263.CrossRefGoogle Scholar

122 ibid 259–60. See also Oxman, Bernard H ‘The Third United Nation's Conference on the Law of the Sea: The 1977 New York Session’ (1978) 72 AJIL 57, 74 (‘Whether the high seas regime is in effect the applicable regime when one crosses into an economic zone depends on what one is doing.’);CrossRefGoogle ScholarJoseph, David Attard The Exclusive Economic Zone in International Law (Clarendon Press Oxford 1987) 66 (‘The applicable legal regime is no longer dependent on the geographic area in question; rather, it is the activity in question that will determine the operative regime.’).Google Scholar

123 See (n 46) and accompanying text.

124 UNCLOS (n 5) Art 56(2). See also Burke (n 108) 302–3 (agreeing that the coastal state has no greater rights over high seas freedoms in the EEZ as it does in the high seas except as specifically provided in the Convention).

125 Attard (n 122) 64, 66. See also Kwiatkowska (n 90) 6, 214–15 (commenting that the careful balance between the exclusive and inclusive uses of the sea within the EEZ is governed by an overarching general duty of states to pay mutual, due regard to their respective rights and obligations).

126 Castañeda, Jorge ‘Negotiations on the Exclusive Economic Zone at the Third United Nations Conference on the Law of the Sea’ in Jerzy, Makarczyk (ed) Essays in International Law in Honour of Judge Manfred Lachs (Martinus Nijhoff The Hague 1984) 620.Google Scholar

127 See Vicuña, Francisco OrregoThe Exclusive Economic Zone: Regime and Legal Nature under International Law (CUP Cambridge 1989) 35.Google Scholar

128 Churchill and Lowe (n 5) 136.

129 Oxman (n 39) 848.

130 See Fisheries Case (UK v Norway) 1951 ICJ Reports 116, 132.

131 This resistance was evident from the time that coastal states first attempted to extend their territorial seas to a breadth of 12 miles, and subsequently with assertions to rights over the continental shelf and then over the EEZ. See (n 34).

132 The EEZ extends 200 miles from a coastal state's baselines or basepoints. UNCLOS (n 5) Art 57. The Continental shelf similarly extends 200 miles for all coastal states, and may further be extended to 350 miles from the coast when certain requirements set out in the convention are met. See ibid Art 76.

133 Phil Mercer ‘Australia's Maritime Security Net Stirs Concern Among Neighbors’ The Epoch Times (16 Dec 2004) <http://www.theepochtimes.com/admin/makeArticle2.asp?id&catid=86&subcatid=92>.

134 See nn 14–15 and accompanying text.

135 These limitations are set out in Section 1 of Part XV, and include requirements for states to exchange views and to attempt to resolve disputes before resorting to compulsory procedures, as well as recognition that other dispute settlement procedures may take priority over that set out in Section 2 of Part XV of UNCLOS. See UNCLOS (n 5) Arts 280–3.

136 ibid Art 287 (1).

137 ibid Art 287 (2) and (5).

138 ibid Art 309.

139 Klein (n 96) 121–3.

140 Namely, military activities, certain maritime boundary disputes, and disputes relating to historic use, as well as specific law enforcement activities and disputes over which the Security Council is exercising its functions. UNCLOS (n 5) Art 298.

141 Richardson (n 99) 916. See also Rosenne, Shabtai ‘Establishing the International Tribunal for the Law of the Sea’ (1995) 89 AJIL 806, 812 (‘The essential safeguard for the freedoms of navigation, overflight and the laying of submarine cables and pipelines is supplied by the intricate provisions for the prevention and settlement of disputes contained in Part XV of the Convention.’);CrossRefGoogle ScholarBoyle, Alan E ‘Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction’ (1997) 46 International and Comparative Law Quarterly 37, 42 (noting that compulsory dispute settlement was intended to reinforce the balance established by Parts V and XII of the Convention in favor of the freedom of navigation);CrossRefGoogle ScholarSohn, Louis B ‘Settlement of Law of the Sea Disputes’ (1995) 10 Intl J Marine and Coastal L 205, 205 (describing the dispute settlement system in Part XV of the Convention as designed to protect the freedoms of the high seas).CrossRefGoogle Scholar

142 See nn 121–5 and accompanying text.

143 Oxman, Bernard H ‘The Third United Nations Conference on the Law of the Sea: The 1976 New York Session’ (1977) 71 AJIL 247, 261.CrossRefGoogle Scholar

144 Orrego Vicuña (n 127) 125.

145 See Klein (n 96) 139–40.

146 UNCLOS (n 5) Art 297 (1)2

147 Rauch (n 84) 266.

148 United Nations Convention on the Law of the Sea: Declarations made upon signature, ratification, accession or succession or anytime thereafter. <http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#Australia%20after%20ratification> (last visited 24 Jan 2005) [hereinafter ‘Australia's Article 298 Declaration’]. Australia lodged this declaration after ratification on 22 Mar 2002. ibid.

149 See Klein (n 96) 307–8 (describing the negotiations that led to the inclusion of law enforcement as well as military activities as an optional exception to mandatory jurisdiction). See also Singh, GurdipUnited Nations Conventions on the Law of the Sea Dispute Settlement Mechanisms (Academic Publications Delhi 1985) 148 (noting that ‘military activites’ were initially excluded from compulsory dispute settlement on the understanding that law enforcement activities pursuant to the Convention would not be considered as military activities).Google Scholar

150 See Oxman (n 39) 823–4.

151 ibid 824.

152 Australia's Art 298 Declaration (n 148).

153 Astley and Schmitt (n 109) 146 (footnotes omitted).

154 ibid (footnotes omitted).

155 It could also fall under another category of potentially excluded disputes under Article 298, namely actions over which the Security Council is exercising its functions.

156 See Klein (n 96) 311–13.

157 See (n 149).

158 See (n 152).

159 UNCLOS (n 5) Art 15.

160 ibid Art 74(1) and Art 83(1).

161 It should nonetheless be acknowledged that threats to security may have considerable economic impact. The Australian Office of Transport Security has noted, ‘As Australia has just over 12 per cent of the world's shipping task and with the value of Australia' sea borne trade being about $188 billion [AUD] per annum, any disruption and destabilization of sea borne trade would have serious economic consequences.’ Fact Sheet 1—The Maritime Security Framework, Office of Transport Security, Department of Transport and Regional Services <http://www.dotars.gov.au/transsec/fact_sheet1_20_07.pdf>.

162 Edward Health ‘The 1980 Alastair Buchan Memorial Lecture’ (Sept–Oct 1980) 22 Survival 198 cited in Truver (n 33) 1223. See also ibid 1221 (‘Sea power will be a fundamental tool of coercive and supportive diplomacy employed by coastal and maritime states alike to safeguard all their interests in the oceans, particularly in light of the potential for international tension and crisis to arise over ocean rights and obligations.’).

163 See (nn 11–13) and (nn 67–71), (nn 49–58), (nn 72–7) and accompanying text (discussing the United States Proliferation Security Initiative, programs undertaken by t he IMO, and amendments to the SUA Convention, respectively).

164 Similar efforts were successful in the United Kingdom's efforts to abolish transatlantic slavery, and with Canada's efforts to regulate fishing of straddling stocks. See Byers (n 12) 534–8. Developments to increase bases of authorization for conducting interdictions outside territorial waters will be expanded by the SUA Protocol, but not to the extent that Australia apparently envisaged in proclaiming the MIZ.