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Oceans governance and maritime strategy

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Page 1: Oceans governance and maritime strategy
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OceansGovernance

andMaritime Strategy

Edited byDavid Wilson and Dick Sherwood

ALLEN & UNWIN

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Copyright © collection David Wilson and Richard Sherwood, 2000© Individual chapters remains with their authors

All rights reserved. No part of this book may be reproduced ortransmitted in any form or by any means, electronic or mechanical,including photocopying, recording or by any information storage andretrieval system, without prior permission in writing from the publisher.

First published in 2000Allen & Unwin9 Atchison Street, St Leonards NSW 1590 AustraliaPhone: (61 2) 8425 0100Fax: (61 2) 9906 2218E-mail: [email protected]: http://www.allen-unwin.com.au

National Library of AustraliaCataloguing-in-Publication entry:

Oceans governance and maritime strategy.

Includes index.ISBN 1 86508 184 1.

1. Sea-power—Australia. 2. Marine resources—Australia.3. Asia—Military relations—Australia. 4. Indian Ocean—Strategic aspects. I. Sherwood, R.J. (Richard John),1952– . II. Wilson, David, 1965– .

359.030994

Set in 10/11 pt Sabon by DOCUPRO, SydneyDigital Processing by The Electric Book Company, www.elecbook.com

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Foreword

FOREWORD

The Oceans of Wealth? study released in 1989 stated, ‘Much ofAustralia’s future is tied up with the sea’. This is as true todayas it was almost ten years ago. Australia’s exclusive economic zoneis one and a half times larger than its land mass. It holds immensepotential for economic and resource development. Of course,issues of security and protection go hand in hand with thispotential. The oceans surrounding this island nation of ours holdthe key to our economic development and to our ongoing nationalsecurity. The scope of opportunities for wealth from the sea areonly partly known and have only been partly explored.

Already our marine industries generate billions of dollars annu-ally and with ongoing scientific and technological advances thepotential for even greater revenue remains significant. With thepotential for development gradually being recognised, the need forcomprehensive planning in oceans management becomes evenmore vital. As Oceans of Wealth? stated in 1989, ‘it will be bygood management alone that Australia will have oceans of wealthin the future’.

We in Australia have not progressed much since then. I hopethat the Australian Government’s paper ‘Australia’s Oceans Policy’will take us ahead. Cooperation between all Australian maritimesector stakeholders will ensure we realise the potential of ourmaritime environment without exploiting it beyond manageablelevels.

The United Nations declared 1998 ‘The International Year of theOcean’ in an attempt to promote understanding of and appreciation

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for the finite natural resource we take so much for granted. The UN’saim was to raise awareness of the oceans and coastal areas asfinite-sized economic assets. They want to obtain commitments fromgovernments to take action, provide adequate resources and give ahigher priority to the oceans while stressing the need for globalscientific cooperation that will enhance our understanding of themaritime environment.

Books such as this one go some way towards fulfilling suchaims. However, we must ensure that we do not simply ‘preach tothe converted’ and that we get the message out into the widerpublic forum. Certainly, I believe there is evidence of a growingawareness and appreciation of the importance of the oceans tothe global economy.

In his recent Doherty Lecture, the United States Under-Secretaryfor Oceans and Atmosphere, Doctor James Baker, emphasised thegrowing importance of coastal zone management and expressedoptimism about the possibility of US accession to the Law of the SeaConvention. Interestingly, Dr Baker made the point that the highseas, with deep seabed oil, gas and mineral resources, fisheries, andtheir role as a carbon sink, could become as important to nationaleconomic interests as coastal waters. There are therefore definitebenefits associated with international cooperative ventures onthe high seas—an area in which Australia wants to be an activeparticipant.

However, despite such encouraging international signs, as aresource the ocean is perhaps less well known than many of thefarthermost planets in our solar system. It is neither a limitlessnor unchanging resource and already the damage caused by reck-less exploitation of this greatest of natural resources is beginningto show. Pollution, depleting fish stocks, disappearing coastlines,rising sea levels, increasing surface temperatures, more frequentviolent storms, and melting ice-caps all exist as symptoms of ourneglect of the oceans and all directly affect the wellbeing andsecurity of our island continent.

This litany of symptoms is clearly evident in the Asia–Pacificregion, once considered a pristine, unviolated part of the world.The small island states of the Southwest Pacific have voiced theirconcerns about the effects of global warming and what rising sealevels will mean to their continued existence.

The recent deployment of Royal Australian Navy ships as farsouth as McDonald and Heard Islands is indicative of the valueAustralia places on endangered species such as the Patagoniantoothfish and highlights the need for vigilance in the protectionof the vast exclusive economic zones administered in our region.

Such examples point to the impact national and international

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maritime issues are likely to have in the next century. Australiamust appreciate that growing concerns in the Southwest Pacificmay impinge on the social stability of countries which see theirexistence threatened. The social stability of nations in our regionwill, in turn, directly affect Australia and efforts aimed at increas-ing regional security.

Admiral Oxenbould, Deputy Chief of the Royal AustralianNavy, has written in this book that as technology advances andnations become more interdependent, the maritime environmentis becoming increasingly important to the survival of manynations. Within the region, intra-regional trade, fisheries, aquacul-ture, offshore resource extraction, tourism and the environmentbring into focus the growing complexity of the interdependenceof the land and the sea.

The oceans and coastal zones are now being used more exten-sively and intensively than at any other time in history. The growthin maritime commerce demands the opening up of new shippingroutes and ports; recreation and resources development in coastalareas increases at a considerable pace; and coastal communitiescontinue to grow or new ones are established.

This type of development is happening all around our regionand especially in Southeast Asia. As part of a region that includesthe busiest shipping lanes in the world, it is imperative thatAustralia is intimately involved in efforts to increase regionalmaritime cooperation on all levels of defence and industry, becauseany disruption to the free flow of maritime trade will have a graveimpact on several countries, including Australia.

Admiral Chalmers, Chief of the Royal Australian Navy, recog-nises the importance of establishing and maintaining contact anddialogue with our near neighbours. Through reciprocal visits,regional discussions and related work, aimed at establishing inter-operability with regional forces, as well as through recognisingthe mutual importance of responsible oceans governance, we willensure the economic and social wellbeing of the region well intothe next century.

This book will do much to further consideration of the impor-tant issues of oceans governance and maritime strategy and assuch I commend it to all those with an interest in the oceans andmaritime strategy.

Rear Admiral J.R. Lord, RANHead, Joint Education and Training

FOREWORD v

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Contents

CONTENTS

Foreword iiiAcknowledgments ixTables and figures xAbbreviations xiNotes on contributors xiv

Introduction 1Gerard Sutton

1 The new ocean regime: facilitating implementation,compliance and evolution 6Edward L. Miles

2 Oceans governance and its impact on maritimestrategy 22Dick Sherwood

3 Seapower and security at the close of the twentiethcentury 33Choon Kun Lee

4 The oceans and Australia’s defence 48Hector Donohue

5 Regional maritime security 59Desmond Ball

6 Oceans governance and regional security cooperation 79Ji Guoxing

7 Regional cooperation for marine environmental andresources management 88Kilifoti Eteuati

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8 Regional naval cooperation 96Chris Oxenbould

9 Maritime pollution 106Rosalie Balkin

10 Outstanding issues with regimes for oceansgovernance 121Marcus Haward

11 Maritime environmental security 129Alan Dupont

12 Energy resources and security in Asia–Pacific 139Mark J. Valencia

13 Policing the high seas: straddling fish stocks andhighly migratory species 153Anthony Bergin

14 Oceans policy, pollution, dumping and maritimeaccidents 166John Gillies and Conall O’Connell

15 Jurisdictional issues for navies involved in enforcingmultilateral regimes beyond national jurisdictions 180Robin Warner

16 Will the new science of complexity subvert oceanspolicy? 191Roger Bradbury

17 Oceanography’s contribution to oceans management 199Andrew Forbes

18 Oceans governance—the global challenge for the newcentury 205Sam Bateman

Notes 214Index 239

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Acknowledgments

ACKNOWLEDGMENTS

The chapters contained in this book originated at a conference,held in Canberra in May 1998, jointly hosted by the RoyalAustralian Navy, the University of Wollongong and Tenix DefenceSystems. The conference would not have been the success it waswithout the support, not only of the contributors, but also thestaffs of the RAN Maritime Studies Program and the Centre forMaritime Policy at the University of Wollongong. The financialassistance provided by Tenix Defence Systems in both the stagingof the conference and the production of this book is also gratefullyacknowledged.

The opinions expressed in this book are entirely the views of theindividual authors. They should not be taken to represent anyofficial policy or position.

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Tables and figures

TABLES AND FIGURES

Tables

1.1 Design principles illustrated by long-enduringCPR institutions 12

1.2 Paths to effectiveness: how internationalenvironmental institutions boost the three Cs 14

3.1 Military expenditures of the world and Asia 403.2 Total armed forces of major East Asian nations 423.3 Major navies of East Asia (1996) 443.4 US Navy then and now 465.1 Defence expenditure in East Asia and Australasia 645.2 Defence expenditure in East Asia and

Australasia, as a percentage of GDP 655.3 The ARF process 7312.1 Emerging Asian oil import rivalry 140

Figures

5.1 Defence expenditure in East Asia and Australasia 64

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Abbreviations

ABBREVIATIONS

ADF Australian Defence ForceADI Australian Defence IndustriesAFZ Australian Fishing ZoneAMSA Australian Maritime Safety AuthorityANZECC Australia and New Zealand Environment and

Conservation CouncilANZUS Australia, New Zealand and the United States

treatyAPEC Asia–Pacific Economic Cooperation forumARF ASEAN Regional ForumASEAN Association of South East Asian NationsASP Australia’s Strategic PolicyCBM confidence building measuresCCAMLR Convention for the Conservation of Antarctic

Marine Living ResourcesCCSBT Commission for the Conservation of Southern

Bluefin TunaCIDA Canadian International Development AgencyCPR common pool resourcesCRC Cooperative Research CentreCSBM confidence and security building measuresCSCAP Council of Security Cooperation in the Asia–PacificDGPS Differential Global Positioning SystemDWFN distant water fishing nationEACS Eastern Antarctic Coastal StatesEEZ exclusive economic zone

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EU European UnionEW electronic warfareFAO Food and Agriculture OrganisationFCP Fleet Concentration PeriodFEER Far Eastern Economic ReviewFFA Forum Fisheries AgencyFPDA Five Power Defence ArrangementsGDP gross domestic productGNP gross national productGOOS Global Ocean Observing SystemGPA Global Program of Action for the Protection of

the Marine Environment from Land BasedActivities

HIMI Heard and McDonald IslandsHMAS Her Majesty’s Australian ShipICCAT International Commission for the Conservation of

Atlantic TunaIISS International Institute for Strategic StudiesIMO International Maritime OrganisationINCSEA incident at seaIOC Inter-governmental Oceanographic CommissionIOTC Indian Ocean Tuna Commissionkm kilometreLOSC Law of the Sea ConventionMARPOL International Convention for the Prevention of

Pollution from ShipsMCM mine countermeasuresMIED Maritime Information Exchange DirectoryNGO non-governmental organisationnm nautical mileOPRC International Convention on Oil Preparedness,

Response and CoordinationOPV offshore patrol vesselPNG Papua New GuineaRAAF Royal Australian Air ForceRAN Royal Australian NavyRFMO regional fisheries management organisationROK Republic of Korea (South Korea)RTN Royal Thai NavySBT southern bluefin tunaSEAPOL South East Asian Program in Ocean Law, Policy

and ManagementSEATO South East Asian Treaty OrganisationSLBM submarine launched ballistic missileSLOC sea lines of communication

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SOM senior officials meetingSPREP South Pacific Regional Environment ProgramTAC Treaty of Amity and CooperationTNI-AL Indonesian NavyUN United NationsUNCED United Nations Conference on Environment and

DevelopmentUNCLOS United Nations Conference on the Law of the SeaUNDP United Nations Development ProgramUNEP United Nations Environment ProgramUNGA United Nations General AssemblyUNIA United Nations Implementing AgreementUS United StatesUSN United States NavyVMS vessel monitoring systemWPNS Western Pacific Naval SymposiumWWII World War TwoZOPFAN Zone of Peace, Freedom and Neutrality

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Notes on contributors

CONTRIBUTORS

Dr Rosalie Balkin is Assistant Secretary of the Public InternationalLaw Branch in the Office of International Law of the Common-wealth Attorney-General’s Department. The office advisesgovernment on all aspects of public international law, includingits implementation in Australian law. Dr Balkin has responsibilityfor advising on questions of maritime pollution. She studied atthe University of the Witwatersrand in South Africa and obtainedher doctorate from that university in 1978. Her thesis was titled‘The Treaty Making Powers of the Union and Republic of SouthAfrica’. She has published extensively in the field of internationallaw and has held academic positions at several universities bothin Australia and abroad, the most recent appointment being atCambridge University in 1991–92. Dr Balkin has headed theAustralian Government Delegation to the IMO Legal Committeefor several years and, since 1993, has been the Vice Chairman ofthe Legal Committee. She has also recently been appointed asa member of the Board of Governors of the World MaritimeUniversity.

Professor Desmond Ball is a Professor in the Strategic and DefenceStudies Centre, Australian National University, Canberra. (He wasHead of the Centre from 1984 to 1991.) Professor Ball is the authoror editor of some 40 books or monographs on nuclear strategy,defence decision-making, Australian defence, and security in theAsia–Pacific region. His recent publications include monographsentitled ‘Building Blocks for Regional Security: An Australian Per-

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spective on Confidence and Security Building Measures in the Asia–Pacific Region’; ‘Signals Intelligence in the Post-Cold War Era:Developments in the Asia–Pacific Region’; ‘The Transformation ofSecurity in the Asia–Pacific Region’; and ‘Presumptive Engagement:Australia’s Asia–Pacific Security Policy in the 1990s’; and articles onissues such as the strategic culture in the Asia–Pacific region anddefence acquisition programs in the region. Professor Ball is afounding member of the Steering Committee of the Council forSecurity Cooperation in the Asia–Pacific.

Commodore Sam Bateman (RAN Retd) is Executive Director ofthe Centre for Maritime Policy at the University of Wollongongand Joint Chairman of the CSCAP Working Group on MaritimeCooperation. Previously, he completed 40 years’ service in theRAN, the last three spent as Director General of the MaritimeStudies Program. His naval experience included command of thefleet units HMAS Yarra and Hobart, five years in Papua NewGuinea and several postings in the force development and strategicpolicy areas of the Department of Defence in Canberra.

Associate Professor Anthony Bergin is the Director of the Austra-lian Defence Studies Centre, University College, AustralianDefence Force Academy. He is also Adjunct Reader in Law at theAustralian National University Law School. He has publishedextensively in the fields of international law of the sea, oceanspolicy in the Asia–Pacific and Australian security issues. He is amember of the CSCAP Maritime Working Group and the NationalDefence Committee of the Returned Services League.

Dr Roger Bradbury is the Chief Research Scientist in the Bureau ofResource Sciences, a government research agency in Canberra. He isa marine ecologist and holds a doctorate in zoology. Prior to hisappointment to BRS, he led the Marine Systems Analysis Group atthe Australian Institute of Marine Science in Townsville where hewas involved with large-scale spatial modelling of marine ecosystems.He has published more than 60 papers in international journals,edited a major work on modelling the outbreak dynamics of thecrown-of-thorns starfish, and written a book with a mathematicianon the use of exotic geometries in ecology and evolution. His currentresearch interests are in the use of the theory of complex systems forunderstanding sustainable development issues.

Conall O’Connell is the First Assistant Secretary in the MarineGroup, Environment Australia. He has held this position sincelate 1997. Conall has responsibilities for the development andimplementation of a broad range of the Australian CommonwealthGovernment’s coastal and marine policies and programs. These

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include Australia’s Oceans Policy; the Coasts and Clean Seasinitiative under the Natural Heritage Trust; the marine protectedareas agenda; and pursuing Australia’s responsibilities under arange of international forums, such as the London Convention onsea dumping. Prior to moving to Environment Australia, Conallheld various positions over several years in the Department of thePrime Minister and Cabinet handling Federal–State relations,primary industries issues and environment policy. Conall has aPhD and a BA (Hons 1) in Philosophy from the Queen’s Universityof Belfast.

Commodore Hector Donohue AM, RANR, is the General Man-ager, Strategic and Business Development, with Tenix DefenceSystems Pty Ltd where he is responsible for strategic planning,international marketing and business development. Prior to joiningTenix, he spent six years with Australian Defence Industries (ADI)as a General Manager, where he formed and managed a businessunit within ADI which successfully developed, marketed and soldAustralian mine countermeasure systems internationally. He leftthe Royal Australian Navy in 1991 after 36 years of service.During his naval career he had extensive experience in a widevariety of postings including exchange service with the Royal Navyand command of HMAS Yarra and Darwin. He holds a Bachelorof Arts from the University of Canberra and a Master of Artsfrom the University of New South Wales. He has written a largenumber of articles on defence matters which have been publishedboth in Australia and internationally and is the author of twobooks: Mines, Mining and Mine Countermeasures and FromEmpire Defence to the Long Haul.

Alan Dupont is currently the Director of the Asia–Pacific SecurityProgram at the Strategic and Defence Studies Centre, AustralianNational University. He is a graduate of the Royal MilitaryCollege, Duntroon, and the Australian National University. Priorto joining SDSC, Mr Dupont was employed by both the Depart-ments of Defence and Foreign Affairs and Trade, specialising inregional security and defence matters. Mr Dupont has publishedwidely on a range of traditional and non-military security issuesas they affect the Asia–Pacific region. His recent publicationsinclude ‘Is There an Asian Way?’, Survival, Summer 1996;‘Indonesian Defence Strategy and Security: Time for a Rethink?’,Contemporary Southeast Asia, December 1998; ‘Unregulated Pop-ulation Flows in East Asia: A New Security Dilemma’, PacificaReview, May–June 1997; and ‘New Dimensions of Security’ inDenny Roy (ed.), The New Security Agenda in the Asia–PacificRegion (1997).

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His Excellency Leiataua Dr Kilifoti Eteuati is currently the HighCommissioner for Samoa in Australia. He holds a BA majoringin political science and philosophy, an MA (Honours) majoring inpolitical science and an LLB, all from the University of Auckland,New Zealand and a PhD from the Australian National University.His Excellency’s previous appointments include: External AffairsOfficer, Prime Minister’s Department (1975–76); Head, Legal Divi-sion, Prime Minister’s Department including additional duties asSenior Labour Officer/Assistant Commissioner of Labour in theLabour Department (1976–77); Head, Legal Division, Prime Min-ister’s Department/Ministry of Foreign Affairs (1982–83); DeputySecretary to the Government, Prime Minister’s Department (1983–85); Founding Director, Ocean Resources Management Programat the University of the South Pacific, Fiji/South Pacific FisheriesAgency, Solomon Islands; Fellow, University of the South Pacific,Fiji (1986–88); and Secretary to the Government, Prime Minister’sDepartment (1989–97).

Dr Andrew Forbes leads the Marine Technology and InformationProgram at CSIRO Marine Research in Hobart. He holds a BScin theoretical earth science, an MSc in physical oceanography anda PhD in physical oceanography. Most of his professional life hasbeen spent on Australian regional oceanographic research, startingin the Gulf of Carpentaria and progressing to deeper waters andlarger scales over a period of two decades. He was instrumentalin the design and implementation of the Acoustic Thermometryof Ocean Climate program in the Pacific, a pioneering attempt atremotely sensing the interior of the ocean on basin scales, and ispresently engaged in developing a similar network in the IndianOcean. He has led research cruises to the equator and Antarcticaand has a particular interest in the dynamics of deep boundarycurrents of the great Southern Ocean, and in bottom waterformation along the Antarctic margin.

John Gillies is Assistant Director, Marine Strategy Section, withinthe Marine Group of Environment Australia. He is currentlyworking as an oceans policy adviser on the development of theAustralian Oceans Policy. Previously, he worked on the develop-ment and implementation of the Oceans Rescue 2000 program,including the development of the national representative systemof marine protected areas. Prior to joining Environment Australia,he was a senior project manager with the Great Barrier ReefMarine Park Authority in Townsville working on day to daymanagement and environmental monitoring programs within thepark. He has also worked as a biologist with the Australian

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Fisheries Management Authority on the management of southernAustralian fisheries.

Professor Ji Guoxing is a Professor of Political Science and theDirector of the Institute of International Strategy Studies, ModernManagement Center, Shanghai. He specialises in politics, security,and international relations in the Asia–Pacific. He was a visitingfellow at the Institute on Global Conflict and Cooperation, Uni-versity of California, San Diego (1995); Center for InternationalSecurity and Arms Control, Stanford University (1993); Centre forStrategic and International Studies, Indonesia (1991); Centre forAsian Pacific Studies, Lingnan College, Hong Kong (1988); andInstitute of East Asian Studies, University of California, Berkeley(1985). He has many publications both in Chinese and in Englishon Asian–Pacific developments. Recent publications include:‘China Versus South China Sea Security’, Security Dialogue,March 1998; ‘Energy Security Cooperation in the Asia Pacific’,Korean Journal of Defence Analysis, Winter 1996; ‘MaritimeJurisdiction in the Three China Seas: Options for Equitable Set-tlement’, IGCC Policy Paper, No. 19, October 1995.

Dr Marcus Haward holds a PhD in political science from theUniversity of Tasmania. His thesis was titled ‘Federalism and the Aus-tralian Offshore Constitutional Settlement’. Currently Dr Haward isa Senior Lecturer in the School of Government, and an Associate inthe Law, Policy and International Relations Program of the AntarcticCooperative Research Centre (CRC) at the University of Tasmania.Dr Haward has published 8 authored, co-authored and co-editedbooks or monographs and 40 articles and book chapters. Thesepublications cover topics concerned with oceans policy, fisheriesmanagement, distant water fisheries, coastal zone management andfederalism and public policy. His most recent books include Japan’sDistant Water Tuna Fisheries, 1996 (co-edited with Anthony Bergin);and Oceans Law and Policy in the Post UNCED Era: Australianand Canadian Perspectives, 1996 (co-edited with Kriwoken,VanderZwaag and Davis).

Professor Choon Kun Lee is currently the Research Director ofthe Korea Institute for Maritime Strategy in Seoul, Korea. He isalso a member of the Korean Association of International Studies,for which he is currently the Director of the Security AffairsResearch Committee. Professor Lee has a PhD from the Universityof Texas, and an MA in political science and BA from the YonseiUniversity, Seoul, Korea. His primary areas of research are: secu-rity affairs in the post-Cold War, East Asian political thought, EastAsian international relations, maritime affairs and strategies,

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causes of war and foreign policies of the great powers. He haswritten over 50 articles published in Korean academic journalsand recently pulished an article entitled ‘Arms Race in North EastAsia after the Cold War’, Strategy 21, March 1998. Previousappointments have included Research Fellow, the Seojong InstituteDivision of Security and Strategic Studies (1990–96), lecturer atthe Yonsei and Choong Ang Universities (1988–present) andinstructor at the Korea Third Military Academy (1977–80).

Professor Edward L. Miles is currently Virginia and Prentice BloedelProfessor of Marine Studies and Public Affairs and Senior Fellow,Joint Institute for the Study of Atmosphere and Oceans, at theUniversity of Washington. Previously at the University of Washingtonhe has served as Director of the School of Marine Affairs, a memberof the university’s Steering Committee on Global Change, andchairman of the President’s Task Force on Environmental Education.He has also served as Chairman of the Advisory Committee onInternational Programs of the National Science Foundation; consult-ant to the United Nations, Intergovernmental OceanographicCommission of UNESCO, Department of Fisheries of FAO, and theSouth Pacific Forum Fisheries Agency; the UN-designated expert onGESAMP, the Joint Group of Experts on the Scientific Aspects ofMarine Environmental Protection; Lead Author for Marine Policy inWG II-B (Oceans and Large Lakes) of the Intergovernmental Panelon Climate Change 1995, Re-assessment of the Global ClimateChange Problem. He is the author of many studies on internationalorganisations, international science and technology policy, andmarine policy and ocean management.

Rear Admiral Chris J. Oxenbould, RAN, joined the RAN in 1962.During his naval career he has held a wide range of appointmentsincluding: command of HMAS Canberra and Perth; Director ofNaval Force Development; Commander of the Australian TaskGroup during the Gulf War; Director General, Naval Policy;Director General Joint Operations and Plans, Headquarters Aus-tralian Defence Force; Assistant Chief of Naval Staff (Personnel);and Maritime Commander Australia. He is currently the DeputyChief of Navy.

Dick Sherwood was at the time of the conference the DirectorGeneral, Maritime Studies Program. A navigation sub-specialist,he served much of his first two decades in the Royal AustralianNavy at sea. Following two and a half years with the MaritimeStudies Program in the early 1990s he returned to sea to commandthe major fleet unit HMAS Kanimbla. He holds both a BA andMDefStd from the University of New South Wales, and has written

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and edited a number of publications on Australian and regionalmaritime affairs. He is a member of the Australian Committee ofCSCAP and the CSCAP Maritime Working Group. He joinedTenix Defence Systems as Manager Strategic Planning in late 1998.

Professor Gerard Sutton has been Vice-Chancellor and Principal ofthe University of Wollongong since March 1995. Prior to thisappointment he was the Deputy Vice-Chancellor from October 1990.Professor Sutton was a senior research scientist for many years withthe Royal Australian Navy before holding senior academic positionsat the New South Wales Institute of Technology (which later becamethe University of Technology, Sydney). In 1988 he was appointed theFoundation Pro Vice-Chancellor at the University of Technology,Sydney. In 1990 he was awarded an Emeritus Professorship from theUniversity of Technology, Sydney. Professor Sutton holds Bachelorof Engineering and Master of Engineering Science degrees from theUniversity of New South Wales, taking his doctorate from theCatholic University of America while on a postgraduate scholarshipfrom the Royal Australian Navy.

Dr Mark J. Valencia is a Senior Fellow with the Program onRegional Economics and Politics at the East–West Centre. He hasa Master’s degree in marine affairs and a PhD in oceanography.Before joining the centre in 1977, he was a lecturer at theUniversity Sains Malaysia and a technical expert with the UnitedNations Development Program (UNDP) Regional Project on Off-shore Prospecting based in Bangkok. He has published over 100articles and books. Recent works include Sharing the Resourcesof the South China Sea (with John Van Dyke and Noel Ludwig),1997; A Maritime Regime for Northeast Asia, 1996; The RussianFar East in Transition: Opportunities for Regional EconomicCo-operation, 1995; China and the South China Sea Disputes,1995; ‘Preparing for the Best: Involving North Korea in the NewPacific Community’, Journal of Northeast Asian Studies, 1994;Boundary Problems: Status and Solutions (with Douglas Johnstonand Martinus Nijhoff), 1991; and Atlas for Marine Policy in EastAsian Seas (with Joseph Morgan), 1992.

Commander Robyn Warner, RAN, is with the Directorate ofOperations and International Law in the Department of Defence.Her legal background is in international law, with a recent empha-sis on maritime and environment law. Her RAN experience hasincluded postings as the Fleet Legal Officer and exchange servicein New Zealand and the United States. She holds a Master ofInternational Law degree from the Australian National University.

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Introduction

Gerard SuttonOCEANS GOVERNANCE AND MARITIME STRATEGY

INTRODUCTION

This book commemorates 1998 as the UN International Year ofthe Ocean. The chapters contained herein recognise the strategicand security significance of the oceans and seas of the Asia–Pacificregion. The book also recognises that the development of man-agement regimes for the 70 per cent of the earth’s surface coveredby water remains a great challenge for the global community.These management regimes will also reduce the risk of disputesarising over different ocean uses or conflicting claims to maritimejurisdiction.

The paradox with this challenge is that—despite the largeexpanse of the world’s oceans—looking after the oceans was notseen as a particularly demanding or complex task until the rela-tively recent past. The concept of oceans governance (or oceansmanagement, as it is sometimes called—to remove any implicationthat the seas can be governed by any particular country orcountries) has only emerged in the last two decades or so inresponse to concerns over the health of the world’s oceans, therisks of marine pollution and the threat of over-fishing. The newinterest in oceans management is also a reflection of the desire ofdeveloping and emerging nations to have some say about, andsome control over, the oceans and their resources.

Throughout earlier centuries, the oceans were perceived to bebountiful and limitless. The doctrine of the ‘freedom of the seas’prevailed. There was enough for all and everyone could take whatthey liked—or conversely dump whatever they liked in the seas. Shipsof the great imperial navies were free to sail where they liked through

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the waters of other countries unencumbered by any consideration ofrestrictions on the rights of passage. The classical maritime strate-gists, such as Mahan, Richmond and Corbett, were able to view theocean as a great international ‘common’, a highway of trade andcommerce, and the vital means by which the imperial powers wereable to exercise their strategic domination and extend their influencearound the world.

This situation has changed dramatically. The seas are no longerfree. We sometimes hear about ‘freedom for the seas’ rather than‘freedom of the seas’. This distinction makes the subtle point thatour primary concern should be with the preservation of marinebiodiversity of the world’s oceans and the sustainable developmentof marine resources rather than with any unilateral right to exploitthe oceans for our own purposes. The distinction also implies theinevitability of new rules and principles governing uses of theoceans by the global community.

Through a proliferation of international treaties dealing withmarine issues, particularly the preservation and protection of themarine environment, there has been a great codification recentlyof the rights and obligations of countries to use the oceans. Theresult is an increasingly complex array of rules and guidelinesdealing with what countries can do in ocean areas, where theycan do it, how they exercise their rights and duties at sea, andwhat the ships and fishing vessels flying their national flags canand cannot do.

First and foremost with these international treaties, we havethe 1982 United Nations Convention on the Law of the Sea (orLOSC or UNCLOS, as it is variously known). It codifies auniversal and balanced set of rights and responsibilities for theusers of the world’s oceans. It provides the foundation for sub-sequent international treaties and ‘soft law’ instruments dealingwith the oceans and activities at sea.

Many of these treaties are mentioned in this book. However,there is one point I would like to mention because of its relevanceto the contents of this book. This is the relatively low level ofratification and compliance with some of these internationalinstruments in the Asia–Pacific region.

Perhaps, this is simply because these instruments do createrules and obligations, and these may be contrary to notions ofindependence and sovereignty strongly held by many regionalcountries in the Asia–Pacific region. If this is the case, then Iwould think that there must be significant implications for thetopic that is the second part of the title of this book—that ofmaritime strategy.

The book’s themes of oceans governance and maritime strategy

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are very important both to Australia and our neighbours in thePacific and Indian Oceans. A glance at a map of the world centredon the meridian of 180 degrees longitude—rather than the tradi-tional map centred on the Greenwich meridian—shows the vastextent of the Pacific, Indian and Southern Oceans. Most Asia–Pacific nations have extensive maritime interests and are keenlyinterested in notions of both oceans governance and maritimestrategy.

Concepts of maritime strategy are about the ability and policiesof a country to use the sea for its own economic, political,strategic and military advantage. It is clear therefore that institu-tions, legal regimes and arrangements for oceans governanceshould have a vital input into maritime strategic thinking,although perhaps some of the intellectual links and processes hereare not as well developed as they might be. Hopefully this isan area where this book will make a major contribution tounderstanding how the two concepts of oceans governance andmaritime strategy link together.

Despite recent developments with oceans governance, includingthe introduction (but not necessarily implementation) of interna-tional conventions, fundamental tensions remain between differentuses of the sea and the extent of the sovereignty or sovereignrights an individual country can exercise at sea. Recent incidents,including disputes over ownership of the Spratly and SenkakuIslands in Asia, arrests by Royal Australian Navy vessels of illegalfishing vessels off Heard Island, and the dispute between Australiaand Japan over southern bluefin tuna all demonstrate how prob-lems over marine sovereignty and resources can arise.

This book is particularly timely for Australia given the releasein late 1998 by the Australian Government of an oceans policyfor Australia. These activities would seem to be well overdue.Hopefully it will redress years of neglect by successive Australiangovernments of the importance of a coordinated and consistentapproach to the management of our maritime interests and thedetermination of relevant priorities. I am pleased to note that achapter on oceans policy is included in this book.

My predecessor as Vice-Chancellor at the University ofWollongong, Professor Ken McKinnon, conducted two majorreviews for the Commonwealth Government related to the devel-opment of national oceans policy. The first of these was completedover ten years ago—in early 1989. It was called Oceans of Wealth?and was a review of marine science and technology and thesupport these disciplines provide for Australian industry.

Oceans of Wealth? was an extremely comprehensive review. Itprovided an excellent catalogue of Australia’s interests in the

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adjacent oceans, concluding that enhanced performance by Aus-tralia in looking after these interests in the future would dependupon ‘national planning and appropriate organisational arrange-ments’. Sadly, most of the recommendations in Oceans of Wealth?fell on deaf ears and little action by government followed afterthis review.

The second review by Professor McKinnon was the Review ofMarine Research Organisations completed in 1993. The aim ofthis review was to look specifically at the institutional arrange-ments for managing marine scientific research in Australia withparticular attention given to the facilitation of interdisciplinarycoordination. Of particular relevance to this book, the recommen-dation was made in this review that there should be ‘an OceansManagement Policy encompassing national priorities for marinescience and technology to achieve environmentally sustainabledevelopment of marine resources and marine industries; and forregular appraisal of needs in the maritime sector’.

A partial spin-off from these reviews by Professor McKinnonwas the establishment at the University of Wollongong in 1994 ofa Centre for Maritime Policy. However, I acknowledge here alsothe magnificent assistance and support that has been received fromthe Royal Australian Navy in establishing this centre and for itsactivities.

In many ways the title of this book encapsulates the work ofthe Centre for Maritime Policy. If I were to pick four words todescribe the interests of the centre then I could do no better thanto say it is about oceans governance and maritime strategy.

Hopefully Australia’s oceans policy will say something aboutthe development of skills and the national capacity for oceansgovernance and the role of the university sector in developingthose skills. This role is not just in the marine sciences (althoughcomprehensive marine scientific knowledge is essential for oceansgovernance—and particularly important for Australia in view ofthe diversity of the marine environment of adjacent oceans), butin other relevant disciplines as well.

The capacity to manage the oceans, both from a national andinternational viewpoint, involves human resources and expertisefrom a range of relevant disciplines (e.g. science, law, economicsand the social sciences), as well as the establishment of appropriateinstitutional arrangements for coordination and policy formula-tion. The involvement of the university sector in these activitiesobviously extends to both teaching and research.

In addition to single-discipline programs, skills and expertisefor marine and maritime managers will be developed throughprograms promoting the interdisciplinary approach to curricula.

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We have such a program at the University of Wollongong withthe Master of Arts (Maritime Policy) and have been encouragedby the extent of interest in this program. Our involvement in themarine and maritime field is also being furthered by the estab-lishment of a new undergraduate program in Marine Science, andan Institute of Estuarine and Catchment Studies which will belocated at our new Nowra campus.

Planning for the Nowra campus is well advanced and fundingfor its construction has been provided by the Federal Government.By its geographic proximity to naval establishments in the Nowraarea, we hope that there will be good opportunities for even closercollaboration with the Royal Australian Navy, including in thedevelopment of our mutual interest in oceans governance andmaritime strategy.

These are exciting times for people interested in the oceans. Alot has changed in recent years, particularly in the developmentof new regimes for oceans governance. Clearly, it would seem,that there must be far-reaching implications of these regimes forcontemporary maritime strategists, and I can well see the fruitfulopportunities this book provides for discussion of the links be-tween oceans governance and maritime strategy.

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1 The new ocean regime:facilitating implementation,compliance and evolutionEdward L. Miles

THE NEW OCEAN REGIME

Even before the end of the Third United Nations Conference onthe Law of the Sea (UNCLOS III) in 1982, work had begun indealing with issues of implementing the Law of the Sea Convention(LOSC), including the questions of oceans governance, which areimplied by the Convention at global, regional (international), andnational levels. It began at the global and regional (international)levels,1 with a considerable amount of attention focused initiallyon issues related to fisheries because they remained among themost contentious of oceans management issues,2 then shifting toproblems of institutional design at the national level, whichformed barriers to the development of integrated national oceanspolicy.3 The latter is crucial if we are ever fully to realise thepotential created by the Convention. A recent series of papers forthe Southeast Asian Program in Ocean Law, Policy and Manage-ment (SEAPOL) and the Law of the Sea Institute, have dealt atthe global level outlining the holes in the regime that should befilled and the changes in management approaches, which appearto be necessary.4 It comes now to the final stone in the edifice: acomprehensive statement of how we can facilitate implementationof and compliance with the Convention in an attempt to constructa desirable future in the face of the disorderliness of state practiceand decentralised evolution.

There is a need to be proactive in attempting to shape a desiredfuture because the present Convention is the best balance the worldis likely to achieve between extending coastal state jurisdiction andpreserving the navigational and other rights of the international

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community. Failure of the present regime is most unlikely to befollowed by a rollback of coastal state jurisdiction. The most prob-able outcome of such a development would mean even greaterextensions of coastal state sovereignty and jurisdiction and, therefore,greater violent conflict over resources, territory, and navigational andother rights. This is an outcome which all that use the ocean shouldseek to avoid as much as possible.

Preservation of the new regime therefore is a matter of facili-tating implementation and compliance, and directly helping toshape its future evolution. The question then becomes how weachieve this goal with a unique overarching framework regime oftruly planetary reach combined with a variety of nested sub-regimes on particular topics/problems. To be sure, not all of thetopics/problems are equally important, and not all of the articlesin the Convention have the force of law. Therefore, let us amendthe basic question to ask: what is the minimal structure of theregime to be preserved at all costs or how are we to avoidunravelling of the basic design and the balancing of interests ithas provided?

Where are the major threats to the basic design to be found?Items which constitute the core of such a list are, perhaps:

• the inherent dynamic of pressures to extend coastal, archipe-lagic, or strait state jurisdiction over resources or the rights ofinternational navigation;

• boundary conflicts, especially where living or non-livingresources are involved;

• a variety of claims in excess of what is permitted within theConvention, the most extreme of which are the Chinese claimto all of the South China Sea and the Chilean concept of a‘Presential Sea’;5

• issues of transboundary, ship-generated or land-based pollutionof the coastal ocean and high seas; and

• regional naval arms build-ups without confidence-buildingmeasures and infrastructure in place.

Before considering these threats and how to solve them, thischapter reviews the great deal of research on the issue of designinginternational regimes which has blossomed since UNCLOS IIIcompleted its work. What do we know now about designingsuccessful, i.e. effective, international regimes that we did notknow then? And how might this knowledge be brought to bearon constructing the desired future?

Finally, this chapter attempts to state in succinct fashion rec-ommendations for a proactive strategy of oceans governance forthe twenty-first century. The concept of oceans governance consists

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of three components distributed along four spatial scales. Thespatial scales are global, regional (international), national andsub-national. The components are:

• Norms and rules which say not only what the standard ofpermissible behaviour is but also state who may decide andapply policy. Norms which allocate authority and jurisdictionfrom the general to the specific. (Hence a focus on the Con-vention itself.)

• Patterns of institutional arrangements at the international andnational levels and how national ocean policy is made (if,indeed, it exists). If it does not exist, how might it be broughtabout in the face of the inertia generated by sectorally basedpolicy and management infrastructures?

• Questions of the correctness/adequacy of substantive policiesrelative to problems faced.

Strategies for constructive engagement must be designed for everycomponent at every spatial scale.

Evaluating the architecture of the new ocean regime as seenfrom hindsight

Let us first dispose of the definitional question of what is a regime.The consensus definition is unquestionably Krasner’s, i.e. ‘. . .principles, norms, rules, and decision-making procedures aroundwhich actor expectations converge in a given issue-area’.6 It isproposed to amend this definition as agreed at a ‘Regimes Summit’held at Dartmouth College in November 1991. The definitionadhered to was suggested by Michael Zürn and agreed by allparticipants: ‘. . . [we] define international regimes as agreed uponprinciples, norms, rules, and decision-making procedures whichgovern issue-areas, as defined by participants, and which maketheir expectations convergent’.7

This chapter will defer a discussion of the epistemologicalissues which are raised by both definitions but simply note thatthe major emphasis in the second definition is on explicit rules,both substantive and procedural, which are:

• legally binding and written down;• not legally binding but written; and• orally invoked by participants with at least acquiescence by

the others, if not agreement.

Now the Law of the Sea Convention of 1982 is a uniqueconstitutive document, as far as regimes are concerned. It was

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self-consciously designed as both a comprehensive, frameworkregime for the world ocean and a package deal. This was a novelapproach for the international community in which the regimedesign is not piecemeal but holistic and interconnected. The sub-regimes nested within the overarching regime both gain strengthfrom the overall framework and support that framework aroundthe components of the package.

The question must be asked, since this Convention is unique,of why the participants of UNCLOS III chose to design a com-prehensive, framework regime for the ocean into which are nesteda significant number of coordinated sub-regimes, viz. the territo-rial sea, straits used for international navigation, archipelagicstates, the exclusive economic zone (EEZ), the continental shelf,the high seas, islands, enclosed or semi-enclosed seas, rights ofaccess of landlocked and geographically disadvantaged states, theinternational seabed area, protection and preservation of themarine environment, the conduct of marine scientific research inthe EEZ and on the high seas, development and transfer of marinetechnology and the settlement of disputes.

Five variables explain this outcome. These variables are:

• the agenda of the conference;• the issue of extending coastal state control over living and

non-living resources;• the issue of protecting the rights and duties of all states in waters

so enclosed but particularly in archipelagos and in straits usedfor international navigation;

• the principle of international control over resources of theseabed beyond national jurisdiction; and

• the emergence of the Coastal States Group, linked to thepartially overlapping territorialist states, archipelagic states,and large margin groups, as the dominant super-coalition ofthe conference.

The second, third and fourth variables are the core issues of thepackage deal and they had to be systematically resolved oncethe Group of 77 succeeded in opening up the entire corpus of theLaw of the Sea for reconsideration and progressive development.The logic of the situation, triggered by the vast expansion of thescope of the agenda, impelled UNCLOS III far beyond what the USand USSR intended when they first raised the issue informally in1966.8

The super trade-off of the conference lies in the tension be-tween extending coastal state jurisdiction and protecting thenavigational interests of the international community. The balancethen, a delicate one, is built into the package deal and tied to the

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most far-reaching dispute settlement mechanisms ever agreed uponinternationally. This is the minimal structure which must bepreserved if the regime and the balance of interests encapsulatedwithin it are to be preserved.

The Convention proceeds by allocating jurisdiction and defin-ing the scope of authority that different classes of states andinternational organisations may claim. In certain cases, the Con-vention also defines policy procedures and recommends types ofpolicies to be followed. In the case of the seabed beyond nationaljurisdiction, the Convention prescribes who may make decisions,on what basis, and how they may be made. But all of this camein a serial fashion over a long period of time. The outlines of agrand design were clear by 1974 but many of the details were notfilled in until 1976–80. The conference was a very large beast,which was out of control on several occasions and largely anexercise in dynamic ad-hocery.

Compared to the state of knowledge which exists in 1998about the design and performance of international regimes, thelack of knowledge, or even awareness of the question amongparticipants in 1971–73 is startling. The Preparatory Committeefor UNCLOS III largely proliferated the list of subjects and issuesbetween 1971 and 1973 and the Seabed Committee did notconclude its preparatory work before the conference itself began.9

That performance seems almost haphazard compared to the pre-cise instructions given to Working Group III of the PreparatoryCommittee for the United Nations Conference on Environmentand Development (UNCED) in 1991.10

The instructions for the latter included an evaluation of theeffectiveness of a large number of treaties creating regimes ofwidely differing scope on environmental problems. Six areas inparticular received detailed consideration in the form of explicitquestions for analysis. These included participation, monitoringand reporting, information dissemination, operation and adjust-ment, codification programming and the development ofinternational environmental law.

Therefore, one must ask what do we know now aboutdesigning international regimes and how does the Law of the SeaConvention stand up to scrutiny based on current knowledge?

What we know about designing international regimes

There is a quite remarkable consensus emerging among scholarsand practitioners on the issues of what is an effective internationalregime and what it takes to design one. The preparatory process

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for UNCED, under the control of Peter Sand at the head of thesecretariat, displayed an extraordinarily intense awareness of theneed to decide on criteria for evaluation and to conduct a com-parative evaluation of the performance of 100 global and regional(international) environmental regimes.11 This chapter will sketchthe outline of this emerging consensus.

There are two works of reference, which speak to regimes ingeneral, rather than international regimes per se. Elinor Ostrom12

took as her point of departure small-scale regimes designed togovern the use of common pool resources (CPR). Her generalisedfindings would include that:

• Shared norms of behaviour are very important because theyaffect discount rates, valuations placed by participants onactions and strategies quite independently of consequenceswhich these actions may entail, the ways in which policyalternatives are perceived and weighed, and levels of opportu-nistic behaviour within the regime.

• The choice of strategies by individual players is affected bysome combination of expected benefits and costs, norms inter-nal to the regime and discount rates.

• Therefore, organisational processes to increase collaborationon coordinated strategies are sensitive to:

who the participants are;changing positive and negative inducements which can bebrought to bear; andthe levels and types of information available.

• Major design problems in thinking of regimes as subsets ofsocial institutions include how to:

create regimes where they are needed but do not yet exist;facilitate the participants making credible commitments;facilitate mutual monitoring, i.e. transparency;achieve graduated sanctions from within; anddesign the most appropriate dispute settlement mechanisms.

Creating effective regimes must facilitate the development of asense of trust and community among the participants and it isimportant to realise that credible commitments and monitoringare two sides of the same coin: ‘[w]ithout monitoring there canbe no credible commitment’.13 Ostrom’s design principles aredisplayed in Table 1.1.

Robert Putnam,14 concerned to determine the highly differen-tiated performance of the North and the South, two internalregions of Italy, in response to the identical strategy and policies

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of the central government, offers a powerful regime-based analysis.Again, the focus is only on the generalised part of the analysisand findings for our purposes.

One of Putnam’s central findings is that the Northern region’seffective implementation of the central government’s policies is afunction of a strong sense of civic community which is nurturedwithin a dense network of secondary, civic associations. Thisdimension is absent in the Southern region.

Putnam also concludes that there is a strong connection be-tween collective action and institutional success. Institutionaleffectiveness is then a function of how two problems are resolved.These problems are:

Table 1.1 Design principles illustrated by long-enduring CPRinstitutions

1 Clearly defined boundariesIndividuals or households who have rights to withdraw resource units fromthe CPR must be clearly defined, as must the boundaries of the CPR itself.

2 Congruence between appropriation and provision rules and local conditionsAppropriation rules restricting time, place, technology, and/or quantity ofresource units are related to local conditions and to provision rulesrequiring labour, material, and/or money.

3 Collective-choice arrangementsMost individuals affected by the operational rules can participate inmodifying the operational rules.

4 MonitoringMonitors, who actively audit CPR conditions and appropriator behaviour,are accountable to the appropriators or are the appropriators.

5 Graduate sanctionsAppropriators who violate operational rules are likely to be assessedgraduated sanctions (depending on the seriousness and context of theoffence) by other appropriators, by officials accountable to theseappropriators, or by both.

6 Conflict-resolution mechanismsAppropriators and their officials have rapid access to low-cost localarenas to resolve conflicts among appropriators or between appropriatorsand officials.

7 Minimal recognition of rights to organiseThe rights of appropriators to devise their own institutions are notchallenged by external governmental authorities

8 Nested enterprises (for CPRs that are parts of larger systems)Appropriation, provision, monitoring, enforcement, conflict resolution, andgovernance activities are organised in multiple layers of nested enterprises.

Source: Elinor Ostrom, Governing the Commons: The Evolution of Institutions forCollective Action, Cambridge University Press, Cambridge, 1990. p. 90.

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• creating credible sanctions against defection; and• introducing a system for monitoring behaviour of participants

in relation to the central commitments; again this speaks tocreating transparency.

The alternative to relying on these ingredients is to rely on coerciveenforcement by participants or some form of impartial third partyenforcement. The former is too expensive and ‘. . . part of thesame dilemma that it seeks to solve . . .’ and the latter is not astable equilibrium.

Collective action problems are endemic at all levels of society.Putnam reiterates that formal institutions (like regimes) are ca-pable of surmounting collective action problems only if the levelof social capital and trust is high. Social capital and trust arefacilitated by dense networks of reciprocal engagement. They canemerge either out of norms of reciprocity in the regime or vianetworks of civic engagement.

Haas, Keohane and Levy,15 on the basis of a series of in-depthcase studies, conclude that three conditions are absolutelynecessary to facilitate effective performance in international envi-ronmental regimes. Effective performance is measured bybehavioural change in the required direction such that the problemwould be worse in the absence of the regime. These three condi-tions are to:

• increase governmental concerns to high levels;• enhance the contractual environment; and• build national capacity.

How this is to be done is shown in Table 1.2.Note the correspondence with the findings in Table 1.2 of those

derived from Ostrom and Putnam. Creating opportunities to mag-nify domestic public pressure begins developing a connection forcivic engagement. Enhancing the contractual environment byreducing transaction costs and creating iterated decision processesmirror some of Ostrom’s design principles. The emphasis onmonitoring (transparency) again is strong. But the emphasis onbuilding national capacity as a matter of priority is a new andhighly valuable addition.

Victor, Chayes and Skolnikoff16 speak to the core functionswhich must be served by any international regime. These include:

• coordination of research and periodic assessments of the under-lying scientific issues whenever the problems treated haveconsiderable, and often complex, scientific content;

• an on-going forum for negotiations for long-time scale issues;• systematic collection, review and dissemination of data on

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issues covered within the regime (i.e. reporting on develop-ments on a regular basis); and

• reporting, review, and assessment of national policies relevantto the issue at hand.

There is additional work in the same vein which can be cited, butthe point has been made. From a somewhat different perspective,current as yet unpublished work by Miles, Underdal, et al.17 addsan important dimension to the findings reported above. Analysingthe performance of 15 essentially global and regional (interna-tional) environmental regimes, these authors found that:

• Making a distinction in the types of problems lying at the heartof international environmental regimes between those whichare benign (i.e. characterised by synergy or contingency rela-tionships), and those which are malign (i.e. characterised byexternalities or competition), basic game power is the singlemost important factor for effective performance on malign ormixed problems. This means that the regime becomes themechanism whereby those states with the greatest operationalcapabilities, influence and control on the problem at hand are

Table 1.2 Paths to effectiveness: how internationalenvironmental institutions boost the three Cs

Role of institutions Representative institutional activities

Increase governmentalconcern

Facilitate direct and indirect linkage issues.Create, collect, and disseminate scientificknowledge.Create opportunities to magnify domestic publicpressure.

Enhance contractualenvironment

Provide bargaining forums that:reduce transaction costs, andcreate an iterated decision-making process.

Conduct monitoring of:environmental performancenational environmental performance, andnational environmental policies.

Increase national and international accountability.Build national capacity Create inter-organisational networks with operational

organisations to transfer technical and managementexpertise.Transfer financial assistance.Transfer policy-relevant information and expertise.Boost bureaucratic power of domestic allies.

Source: Peter M. Haas, Robert O. Keohane, and Marc A. Levy, Institutions for theEarth, MIT Press, Cambridge MA, 1993, p. 406.

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able to pool their resources to support and even drive theeffort. The crucial relevant question here, of course, is in whosefavour is power in the basic operational game skewed?

• Basic game power is especially important in coping with polit-ically malign problems, but more so for effecting behaviouralchange than achieving scientifically, and technically optimalsolutions.

• The presence of at least one of the following variables is anecessary condition for effective performance: basic gamepower, institutional response capacity, and entrepreneurialleadership. The presence of all three amounts to establishingnecessary and sufficient conditions of effective performance.

• For benign and mixed problems, there can be effective perfor-mance if the three central variables are present but not asstrong as they might be. But basic game power must be presentin relation to mixed as opposed to purely benign problems.

What lessons are drawn from this emerging consensus withinthe research community to facilitate the design of effective inter-national regimes? Perhaps:

• For a regime to be effective, it must meet the minimal condi-tions of states which exercise basic game power in the externalworld and offer them utilities which clearly surpass what eachmay be able to attain on its own. At the same time, care mustbe taken to build in incentives for other states to join andparticipate as well.

• In the development of norms, rules and standards, especiallywhen dealing with nested or linked regimes, it is necessary topay attention to maintaining internal consistency of the regu-latory fabric. Norm or rule-creation in both the central andnested or linked regimes must be monitored to avoid unneces-sary duplication and conflict. A coordinated approach by boththe relevant international secretariats and the nation-statemembers of the regimes in question is required here.

• Implementation of regimes goes beyond the significant step ofdomestic ratification of the constitutive document to include aneed for harmonising domestic regulations and operations withthe requirements of the convention. Systematic policy analysisbefore the fact can significantly aid states in this effort.

• Where necessary, link policy formulation to comprehensive,evolving scientific research. Design in a capacity to monitorchanges in relevant portions of the external environment as aresult of actions taken or not taken from some known baseline.Such a monitoring capability must be maintained over the longterm and all relevant databases must be standardised.

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• Ensure that internal policy processes at international as wellas national levels can produce the required outputs on a timelybasis. Developing countries will need assistance in this regardso that national and international capacity-building relevantto the prescribed obligations is an inevitable part of regimecreation and maintenance. In addition, as part of the imple-mentation process, all stakeholders must have access to allcrucial arenas for decision.

• Deliberately attempt to create as much of a civic communitywithin each issue/area treated as much as possible. Facilitatebonding by horizontal relations of reciprocity and cooperation,especially in nested and/or linked regimes. Stimulate the accre-tion of dense networks of secondary associations at nationaland international levels.

• All regimes should contain:

norm/rule creation capacity;streamlined policy-making processes based on relevant sci-entific, technical, economic, social, cultural and legal dataand information;bargaining forums that reduce transaction costs, createiterative decision-making processes and facilitate themaking of commitments;monitoring capacity to ensure that commitments are beingmet in good faith and independent review of regime per-formance;graduated sanctions and incentives; andexplicit conflict resolution procedures and mechanisms.

• In all regimes of high scientific–technical content, mechanismsfor facilitating the development of consensual knowledge onresearch findings are of crucial importance. Do not link thesemechanisms directly to regulatory action. They are devices forproducing agreed assessments, causal explanations, and theirprobable consequences. They are also important for facilitatinglong-term learning and for facilitating the emergence of sup-portive epistemic communities.

How do we evaluate the performance of the new ocean regimewhen viewed through the prisms of recent research?

If we use the lessons stated previously as our evaluation criteria,how would we rate the performance of the regime created byUNCLOS III? On the credit side of the balance sheet, we wouldhave to acknowledge that:

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• UNCLOS III produced a carefully crafted, internally consistentframework regime of very wide scope with a series of specificsub-regimes on particular topics nested within the comprehen-sive regime. This result was designed to embody the overallbalance between the resource interests of coastal states and thenavigational interests of the international community.

• The heart of the balance is enshrined in the following provis-ions: limitation on the breadth of the territorial sea to 12 milesand specification of objective criteria governing the right ofinnocent passage therein; a transit passage regime governingfreedom of navigation and overflight through straits used forinternational navigation; creation of an archipelagic statesregime containing objective criteria for the drawing of archi-pelagic baselines, creation of a sub-regime of archipelagicwaters which also safeguards the right of innocent passage,and promulgation of the novel concept of archipelagic sealanespassage through and over routes normally used for interna-tional navigation; and, creation of an exclusive economic zonebeyond the territorial sea to an outer limit of 200 miles fromthe territorial sea baselines in which the coastal state exercisessovereign rights over living and non-living resources, exclusivejurisdiction over the emplacement of artificial islands andinstallations, and the conduct of marine scientific research, andshared jurisdiction for protection and preservation of themarine environment. Even within the EEZ, the high seasfreedoms of navigation and overflight and the laying of sub-marine cables and pipelines are preserved. Outer boundariesof 200 nautical miles (nm) for continental shelves are guaran-teed for all coastal states except those which meet certainobjective criteria for extending control beyond 200 milesto the outer edge of the continental margin up to a limit of350 miles or the 2500-metre isobath, whichever is greater. Theprovisions on the protection and preservation of the marineenvironment establish a general obligation for coastal statesand all states using the world ocean to protect and preservethe marine environment. The most specific rules relate toship-generated pollution, but the Convention also establishesa framework for creating new rules and standards in anarticulated manner between coastal and strait states andthe International Maritime Organisation (IMO), which is the‘. . . competent international organisation’. Finally, the estab-lishment of the international seabed area beyond nationaljurisdiction, as defined in the provisions on the continentalshelf, places an effective limit on the creep of coastal statejurisdiction.

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• All of these provisions are supported by a system and mecha-nisms for compulsory settlement of disputes, thereby creatinga pathway for order-in-change.

• The central compromise at the heart of the Convention in termsof the trade-off between recognising extended coastal stateinterests in resources versus protecting the navigational inter-ests of the international community meets the basic interestsof the inter-linked coastal states, archipelagic states, territorial-ist states, and large margin states groups as well as those ofthe world’s remaining superpower, the United States. Conse-quently, it is crystal clear that this regime encompasses almostall of the states which can lay claim to exercising basic gamepower, perhaps the single most important characteristic forestablishing effective international regimes.

• The reporting function of the Secretary-General, as defined bythe Convention in Article 319, (2), (a),18 includes the authorityto ‘. . . convene necessary meetings of States Parties . . .’‘Necessary meetings’ can be interpreted to mean facilitatingimplementation, compliance, and helping to guide the evolutionof the Convention.

On the debit side of the balance sheet, based on what we knownow, we can point to ‘holes’ within the fabric woven in theConvention. These holes are:

• There is no transparency relative to the issue of coastal stateperformance, or the lack thereof, vis-a-vis its obligation tomanage living resources in a manner that does not endangerthe stocks within its EEZ by over-exploitation and its obliga-tion to protect and preserve the marine environment. Notransparency means there are no provisions for systematicmonitoring combined with independent review.

• The Convention does not facilitate the development and link-age of a dense network of secondary associations in supportof its objectives.

• The guidance given to domestic implementation of criticalprovisions is haphazard. For instance, where the topic relatesto the exercise of jurisdiction by the coastal state on a mattercrucial to the central trade-off (e.g., pollution regulation ininternational straits, enforcement jurisdiction of port, coastal,and flag states, or the conduct of marine scientific research inthe EEZ), then the instructions are detailed and specific. Whenthe central compromise is not threatened, the requirements fordomestic implementation are generally ignored.

• In this connection, no systematic attention was paid to facili-tating the development of national capacity to implement the

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terms of the Convention. It is true that Part XIV deals withthe development and transfer of marine technology but theunderlying question was the wrong one to pose and Part XIVremains largely hortatory and symbolic. Critical issues ofimplementation, especially for developing countries, are neveraddressed. For instance, how are developing countries whichare simultaneously important strait states to meet the costs ofthe new obligations relative to ensuring safe transit and pol-lution controls?19 Or how are developing coastal states to meetthe very onerous financial requirements implied by the obliga-tion to provide reception facilities for tankers visiting theirports?

• The results of the compromises over the conduct of marinescientific research in the EEZ have transformed such research intoyet another commodity to be traded between coastal and re-searching states. But the consequence of maximising coastal stateauthority over such research and the imposition of heavy andcostly obligations on researching organisations has de-coupledpolicy formulation from systematic support of comprehensivescientific research programs.

• The provisions for review and amendment serve to lower trans-action costs, but they do not facilitate iterative decision-makingprocesses. Since implementation is not fully transparent, and,except in limited cases of transit and archipelagic regime passage,independent review is absent, there is no declared central mech-anism to monitor potential erosion of basic compromises by statepractice, which contravenes basic norms. Currently, assessmentsare performed in a very decentralised fashion,20 aided by theinformation provided by the Secretary-General, which is itselflimited to formal acts excluding the informal process of claimand counter-claim.

Constructing the future: a proactive strategy for facilitatingimplementation, compliance and guiding evolution

So, what is to be done? A proactive strategy with two primaryemphases is likely to be most effective. The first emphasis usesthe UN Secretary-General’s authority under Article 319, (2), (e)to convene periodic conferences of states parties to assess evolvingstate practice and the extent to which any deviations are injuriousto the central compromises of the Convention. It is in the interestsof the Coastal States Group and its allies, including the UnitedStates, to take the initiative to use this global policy lever tosafeguard the balance that has been achieved. The point here is

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to put basic game power into play in the service of order-in-change.

The second strategy combines the resources of the global andregional levels to achieve three objectives:

• To use formal and informal (i.e., Track-One and Track-Two)regional organisations to produce the functional equivalents ofa dense network of secondary associations in support of theobjectives of the Convention by aligning them to regionalinterests, challenges and opportunities.

• To provide systematic guidance to domestic implementationof the policies required by the Convention in its various Partsat the national level.21

• To give the highest priority to facilitating the development ofnational capacity to implement the obligations assumedby states parties under the Convention. In this strategy theresources of the global, regional and national levels must becombined in a coordinated fashion.

In order to achieve these strategies there must be one or morestates willing to play the role of political entrepreneur(s). On thebasis of performance and experience, both Australia and Canadawould be ideal choices. If either or both could be persuaded totake up this challenge, then perhaps they could work very hardto engage the United States in the same pursuit even before theUS Senate ratifies the Convention.22

This conclusion is the result of two decades of personal par-ticipation in a variety of Track-Two mechanisms in the Pacificwhose terms of reference embrace the totality of marine policyconcerns. From this vantage point, the enormous contributionsmade by both Australia and Canada and the effective assistanceof FAO/Fisheries to the South Pacific Forum Fisheries Agency(FFA) under the EEZ Program paid for by extra-budgetary con-tributions of the Scandinavian countries, particularly Norway, andCanada, have been viewed from first-hand experience.

There already exists in the Pacific context a multiplicity oforganisations concerned with ocean policy in the broadest sense.At the formal level, there are the Association of Southeast AsianNations (ASEAN), the Council for Security Cooperation in theAsia Pacific (CSCAP), the ASEAN Regional Forum (ARF), andboth the South Pacific Forum, at heads of government level, andFFA. At the informal level, there is SEAPOL, supported by bothCanada and Southeast Asian nations, and a variety of looser,Track-Two organised dialogues on particular subjects, viz. navalarms control and the South China Sea question.

As a forum, SEAPOL has developed in a distinguished fashion

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over the years, supporting an extensive program of workshopsand conferences on issues of ocean law and policy. In fact, theorganisation has matured to the point where Canada, through theCanadian International Development Agency (CIDA), is facilitat-ing inter-regional communication so that other regions mayemulate what has been done in the Pacific.

With respect to facilitating domestic implementation, FAO(Fisheries), IMO, and the Intergovernmental Oceanographic Com-mission (IOC) all have relevant programs which can be broughtto bear. However, a coordinated strategy via the UN Secretary-General would be most effective as opposed to uncoordinated,individual agency programs. The output of such a coordinatedeffort could then be used to support the periodic review to beperformed by conferences of states parties. In this, as in all things,eternal vigilance is the price of constructing the desired future.

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2 Oceans governance and itsimpact on maritime strategyDick Sherwood

OCEANS GOVERNANCE AND ITS IMPACT ON MARITIME STRATEGY

Ever since the ancient Greeks began documenting political thoughtaround 800 BC, the normal intercourse between men, nations andcivilisations has been one concerned primarily with the exerciseof power. As Hans Morgenthau noted in 1957,

the struggle for power on all levels of human interaction . . . ispart and parcel of human nature; that the aspirations for powerare innate in human nature . . . and that the wise approach topolitical problems lies in taking the perennial character of thoseaspirations for granted—in trying to live with them, to redirectthem into socially valuable and beneficial channels, to transformthem, to civilise them.

History would suggest that it is hard to argue with his propositionthat

international politics is of necessity a struggle for power; that thebalance of power, for instance, is not the invention of somemisguided diplomats but is the inevitable result of a multiplicity ofnations living with each other, competing with each other forpower, and trying to maintain autonomy.1

In this respect the history of mankind over a period stretchingto nearly 3000 years is resplendent with examples of nations tryingto legitimise their claims, primarily for commercial purposes, tothe use of the oceans and its resources. History also illustratestheir willingness to support such claims if necessary by the use orthreat of use of force. Thus navies came into existence and thehistory of seapower and of the development of maritime strategic

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thought is largely a record of rivalries resulting from conflictingcommercial interests.

It is from this perspective that one must view the developmentin the latter half of the twentieth century of the internationalregimes governing the world’s great oceanic common. It is thatpart of the globe defined as being ‘a resource to which no singledecision-making unit holds exclusive title’.2 The oldest recognisedpart of this global commons was of course the oceans, or at leastthat part the high seas, which for three centuries had been thoseseas which lay outside the three nautical miles of land andcommonly termed the territorial seas. The generally, thoughnot necessarily universally, accepted doctrine had been that thehigh seas were open to all for the purposes of navigation, fishingand latterly aviation and the laying of cables. Consumption of thecommon pool of resources was rival but non-excludable, andthe resources generally thought to be inexhaustible.

We are now fast recognising the fallacy of some of thosebeliefs. Booming populations, many of them migrating to coastalareas, coupled with technological innovation, allowing for evermore intensive exploitation of the oceans, is leading to depletionand even collapse of some marine resources. This of course hasbeen coupled with a change in the make-up of the internationalcommunity since the late 1940s, with the emergence of many morenations on the international stage, nearly all of whom wish toexercise some form of ownership over the resources of the world’soceans. It has resulted in expanded national jurisdiction over theoceans and increased competition for scarce resources.

The ubiquitous metaphor for all of this has its origins in thework of the eighteenth-century Scottish philosopher David Humein that ‘the inherent logic of the commons remorselessly generatestragedy’.3 Thus the modern-day term tragedy of the commons. Itis out of this concern for the ‘tragedy of the commons’ that asearch for some form of governance over the commons hasemerged. The most important regime to emerge, so far, has beenthe Law of the Sea Convention (LOSC). It epitomises that balanc-ing of competing powers talked about by Morgenthau and is inthe words of one commentator,

the product of a total international process extending back,philosophically and historically, to the sixteenth century and farbeyond . . . In the history of international diplomacy, there hasbeen nothing to equal the 1982 Convention in scope, sophisticationand universality.4

This chapter looks at the emerging regimes of oceans gover-nance, particularly LOSC, and their impact on the exercise of

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power between players on the international stage as reflected inthe concepts associated with maritime strategic thinking. In thisrespect it will emphasise the role of maritime security forces inthis new global environment.

The development of regimes for oceans governance

Mankind’s efforts to bring order to the use of the oceans have along history in the realm of international relations and in theemergence of principles of international law. During the secondcentury AD, it was the Roman jurist Marcianus who first advancedthe proposition that the sea was common to all as part of theconcept of the nature law; a position later codified in Roman law.However, while the Roman empire ‘accepted the legal status ofthe sea as common property for all, nonetheless it declared in theTheory of Glassators, that it exercised effective control over theMediterranean Sea’.5

With the collapse of the Roman empire, however, thereemerged conflict among the small insecure states of WesternEurope as they each attempted to ‘obtain exclusive control overtrade routes and rich fishing grounds’.6 Attempts to extend statesovereignty onto the sea continued in the Mediterranean through-out the Middle Ages, along with the development of trade andcommerce. This process also took place beyond the Mediterra-nean, with the countries of Scandinavia also attempting to imposecontrol over adjacent waters, and the English laying claim to theEnglish Channel and surrounding seas. The trend of trying ‘toplace ocean areas under State control culminated in 1494 in theTreaty of Tordesillas . . . in which Spain and Portugal agreed toa division of the world’s oceans between themselves’.7 This wasseen by others as a constraint on trade and eventually led to thetreatise by Hugo Grotius in 1608 on freedom of the seas.

Grotius argued that the seas could not be owned and that ‘thesea is one of those things which is not an article of merchandise,and which cannot become private property . . . that no part ofthe sea can be considered as territory of any people whatsoever’.8

Other writers such as William Welwood and John Selden coun-tered the Grotius case. Welwood, while accepting Grotius’ thesisthat the high seas were open to free use by all, contended that thedepletion of fish stocks off the British coast justified a Britishclaim of sovereign authority to exclude foreigners from coastalwaters. Selden argued along a similar vein in contending thatmarine resources ‘may through a promiscuous and common use

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of the sea, be diminished in sea whatever’, and concluded thatany such sea was susceptible to national appropriation.9

In the ensuing decades, Grotius’ ideas flourished as exclusivecoastal state claims began to recede in the face of emergingEuropean and later American imperial interests in free and unen-cumbered trade and commerce. This trend was to continuethrough until the end of the nineteenth century, with the twinpillars of freedom of the seas and a narrow band of territorialwaters (3 nautical miles) becoming well established in state prac-tice,10 or at least in the practice of Western maritime states.

This period of mercantilism saw the emergence also of thedoctrine of common property, as applied to the living marineresources of the high seas where no single user had exclusiverights, or the right to prevent others from joining in their exploi-tation. It also led to attempts to control some activities at sea.This undoubtedly resulted from the increasing unease felt amongthe non-naval powers, as well as concerns about over-exploitationof fisheries and the need to perhaps extend state jurisdictionbeyond 3 nautical miles in the interests of conservation.11

Concerns over unilateral freedoms and over-exploitation grewas the twentieth century progressed. Developments in technology,and after 1945 the proliferation of players on the internationalscene, eventually led to calls for increased sovereignty over theoceans. Paradoxically this was led by the leading maritime power,the US, through the Truman Proclamations in which it sought toclaim control over marine resources and coastal fisheries wellbeyond the seaward reach of the US territorial sea.

It marked a prodigious change in the way the world sawjurisdiction over the oceans. Until that time, ‘the traditionalpattern of jurisdiction’ had been one ‘largely of high seas, free forall states to use, with narrow bands of territorial waters overwhich coastal States exercised complete sovereignty, subject to theright of innocent passage’.12 Increasingly from this point on coastalstates began to claim jurisdiction over wider maritime areasadjacent to their shores. This was driven by both a need foradditional resources such as fish, oil and minerals and by theemergence of the technology to exploit such resources. The claimsgrew ‘spatially extensive, functionally inclusive, and jurisdiction-ally exclusive, setting the stage for natural tension between twocompeting interests; the exclusive interests of the coastal Statesand the inclusive interests of the user States’.13 This in turncreating the compelling need for some form of universal interna-tional regime of oceans governance.

Finding an equitable solution was never going to be an easytask. With nearly 200 state actors it became the largest single

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international negotiating process ever undertaken, and its resultswere not, nor probably ever could provide, a universal remedy forthe problems pertaining to the governance of the oceans. The finaloutcome was by necessity a compromise, with many issues leftunresolved, particularly those relating to traditional views onfreedoms of the sea, marine pollution and the exploitation ofresources on what remains as the true commons. Nevertheless,there is a hope that its widespread acceptance will guide thebehaviour of nations, promote stability of expectations, enhanceadaptation to new circumstances, narrow the scope of disputes tomore manageable proportions, and provide a workable frameworkfor issue resolution.14

However, as Sam Bateman has noted,

. . . good oceans governance means law and order at sea with freeand safe movement of shipping, and nations able to pursue theirmaritime interests and manage their resources in a manner which isagreed and accepted by other nations . . . LOSC . . . may in facthave . . . added to disorder at sea, particularly through itsintroduction of 200 nm exclusive economic zones (EEZs).15

In this respect it has set off a power struggle at sea, as statesseek to exercise greater control over the oceans and theirresources.

Exercise of power on the oceans

Strategic concepts for the exercise of national power over theoceans have always had a close connection with the law. This hasbeen by virtue of the fact that national maritime strategies havelong-lasting effects on national security and on the relationshipsbetween states. It was the use of seapower that allowed Alexanderthe Great to dominate much of the Mediterranean during thefourth century BC, and later Rhodes was to articulate its maritimestrategy through the Rhodian Sea Law. As noted earlier, Rome inthe second century AD identified the seas of the empire as rescommunis. Carthage’s exclusive claims to parts of the Mediterra-nean are also recognised as one of the causes of the Punic Wars.16

The Treaty of Tordesillas led in part to the establishment ofEnglish maritime power, with firstly Henry VII commissioningseveral expeditions to sail through waters claimed by Spain andHenry VIII continuing the policy by undertaking a major expan-sion and modernisation of England’s navy.17 The continuation ofthis policy during the reign of Elizabeth I, which saw the emer-gence of the concepts of marque and reprisal and the institution

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of privateering, is also credited with causing the Anglo–SpanishWar. Yet although the most visible proponent of freedom of theseas, England also sought to claim control of the seas aroundEngland, and her claims to exclusive fishing rights and maritimesovereignty led to the wars with the Dutch during the seventeenthcentury.

England’s alleged interference with high-seas navigation is heldup as a reason for France and Spain entering the American warof independence on the side of America, and following inde-pendence the US sought to guarantee freedom of the seas so asto trade freely with Europe. But it was not until near the closeof the nineteenth century that the US first began to articulate itsstrategy, this through the work of Alfred Thayer Mahan. It wasa strategy based very much on the lessons of history, particularlythe way in which England had developed as a global maritimepower during the seventeenth and eighteenth centuries. It was astrategy aimed at expanding US influence, particularly in thePacific but also in the Caribbean. This was to be achieved throughsponsoring an expanding merchant fleet and finally building alarge navy to protect that shipping.18

Mahan’s thesis was primarily based on the precept that the seawas a ‘great highway’ over which men ‘may pass in all directions’primarily to trade, as it was the capacity to trade coupled withshipping which was to Mahan the source of national wealth. Fromthis Mahan drew the need and the limit of the need for navies.‘The necessity of a navy, in a restricted sense of the word springs,therefore from the existence of peaceful shipping, and disappearswith it.’19 However, the experiences of two wars during thetwentieth century shifted US maritime strategic thinking to onewhere the concentration is now firmly on the projection of powerfrom the sea against the land territory of an enemy.20

Yet maritime strategy has always been much more than that.Navies, as the traditional instruments of maritime strategy, havethus fulfilled a much wider function, as best exemplified by KenBooth in his triad of naval roles:

• the projection and maintenance of a balance of power byexercising control over the oceans in times of peace and conflict(military role);

• in support of foreign policy either through a passive presenceor in a manipulative/coercive sense (diplomatic role); and

• sovereignty protection and coastguard type activities (policingrole).21

Booth of course has argued that in light of the emerging regimesof oceans governance such as LOSC, and associated pressures to

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create law and order at sea, coupled with the desire of coastalstates to exercise more control of the resources of the ocean, navalstrategists will be forced to focus attention more and more on thepolicing or constabulary role.22 This in part comes from a growingschool of thought that navies ‘face a new context in whichpolitical, diplomatic and legal emphases outweigh the conventionalwarfighting role in terms of planning and policymaking’.23

As Sam Bateman has suggested, such theories imply ‘that thereis a zero-sum game with naval roles and that if one increases inimportance, another must decrease’.24 Like Sam Bateman, I do notsupport this thesis. It is difficult to dispute the argument that theconcentration of defence planners on a possible role for maritimeforces in some ultimate Armageddon is a grave misuse of timeand introduces distortion into the course of defence policy andcapability acquisition.25 There is, however, compelling evidencethat the advent of increased maritime regulation and enforcementhas in its implications for navies a subset of making all three ofBooth’s triad of roles more important. This has been driven,primarily, by increased awareness of the importance of the mari-time environment and of the role that maritime capabilities playin allowing nation states to exert some degree of control over thatenvironment.

The essence of modern maritime strategy remains essentiallythe same as what many naval strategists have been writing aboutfor nearly 100 years. It is the influencing or controlling ofbehaviour in the maritime environment. Given that technology andthe use of the seas has come a long way since Mahan first wroteon the subject late last century, it is more current today to talknot of sea or naval power but of maritime power, the latter havingbeen defined as ‘the aggregate of a country’s ability to make useof the sea in order to fulfil its national, economic, security andother goals’.26

Thus the object of maritime power is to guarantee the use ofthe sea, and particularly of that part of the sea which is funda-mental to national sovereignty. It allows for the passage of goodsand people, for the exploitation of the resources of the maritimeenvironment, and ultimately the safe passage of military forces.These are national interests and navies have historically beeninstruments of government created to project and protect theseinterests, by exercising that trinity of naval roles defined by KenBooth, and which together constitute the exercise of naval powerby the nation. If there has been a change it is that as well as thetraditional concept of the freedom of the seas, which guaranteesstrategic mobility, there will be an increased emphasis on what

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one recent writer has described as the exercise of absolute controlover territorial seas and exclusive economic zones.27

Maintaining strategic mobility, however, will continue to beone of the most difficult tasks. As noted as far back as 1983:

It [is] important that all naval powers, including the United States,demonstrate clearly—through their operational practices over thenext few years—their understanding that the language of the treatyhas no significant impact on naval mobility.28

The preservation of the rights of all maritime traffic to operateon, over, and under the seas remains the foundation that underpinsthe political, economic and security paradigm of all maritimestates. As Ken Booth has noted:

The territorialization of the seas and the proliferation ofpsycho-legal boundaries will be a fact of naval life for theindefinite future. The process represents a challenge to thatmobility which has always been the essence of naval strategy.29

With respect to the protection of the new sovereignty conferredby regimes such as LOSC, some of the older traditional navieshave been slow to recognise its importance in their strategicconcepts. There was, particularly during the 1970s and 1980s, aconcentration on the traditional warfighting concepts of maritimestrategy. The consequences of this was that for some the end ofthe Cold War and the demise of the former Soviet Union hadseemed, in the words of one commentator, to have ‘taken theraison d’etre of Western navies with it’, leaving them clutching atstraws and ‘rushing around in circles looking for a mission beforepoliticians could move to mothball [them] in the next round ofdefence cuts’.30

In some cases there was and continues to be a resistance tobecoming too involved in what are seen as mundane policing tasks,which divert resources away from training for higher levels ofconflict.31 But there are important national tasks at the lower endof the conflict/security spectrum, which are of keen interest tonational constituencies and in many cases come with expectationsthat they be carried out by the navy.32 To neglect such tasks orto suggest that they belong elsewhere may result in the organisa-tion that traditionally conducted them becoming increasinglyirrelevant in the minds of the general populace, especially if thelikelihood of having to conduct operations at the upper end ofthe security spectrum looks extremely remote in the eyes of themany.

Other states, however, had given some thought to—if they werenot already involved in—tasks associated with what Geoffrey Till

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has termed the ‘protection of the offshore estate’, and the needto think about ‘coordinated maritime policy and new patterns ofadministration’. The importance of the ‘offshore tapestry’ with itsrich sources of food, energy, and raw materials and of the dangersof over-fishing and pollution were already beginning to see a callfor greater jurisdiction over the wider areas of the sea as embodiedin the concepts of the new Law of the Sea, and as Till observedthere would be ‘a growing need for the enforcement of civil andinternational law’.33 It has in the words of one commentator

led to a proliferation of navies and a worldwide increase in thenumber of naval ships. Many weak coastal states that were eitherunable to afford them or thought them unnecessary now havenavies.34

The extension of sovereignty, be it territorial or just to rightsover resources arising from LOSC, still only accounts for aboutone-third of that global common that comprises the world’soceans. The remainder is a true common. Yet unlike the landenvironment, the maritime environment is not so easily parcelledout into lots. In a biological and physical sense there are no fencesor natural boundaries at sea. Management of the world’s oceans,whether they are under some type of national jurisdiction or not,requires a cooperative approach. As Sam Bateman has noted,‘coordination, cooperation, and consultation are fundamentalto oceans governance and the management of regional seasand coastal zones’. This is no more so than in obtaining a muchmore comprehensive knowledge of the oceans to enable ‘resourcedevelopment, navigational safety, and marine environmentalmanagement’.35

It is in this respect that Booth’s diplomatic function of naviescomes into play. Some commentators tend to dismiss this functionfor other than great and powerful navies, as they see navaldiplomacy only in the use of warships in a persuasive manner, ofsupporting a state’s bargaining position. However, there is agrowing realisation that navies have some unique attributes whichmake them highly suitable to promoting confidence and fosteringinternational cooperation.

Historically, maritime capabilities have shown that they offera particularly convenient way in which to pursue cooperativeapproaches to security affairs. The desire to have freedom ofnavigation for both military and commercial traffic is a mutualinterest mostly well understood by maritime nations. Joint oper-ations in the maritime environment, particularly surveillanceoperations, usually involve fewer complications and cause lessfriction to local sensitivities than those that occur in the land

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environment. It all points to an expanding role for navies insupporting national strategies in the maritime environment.

Conclusion

History suggests we live in a realist not idealist world. Therelations between individuals and nations are underpinned by acontinuing struggle for power—power in the sense of first influ-encing and if necessary controlling the behaviour of others. In amaritime strategic sense that has manifested itself in the desire ofmaritime states to use whatever means necessary to preserve andmaintain a sense of order at sea. This is the very essence of goodoceans governance. Undoubtedly, the exercise of power at seashould also respect the rights of other states who may also havea legitimate interest in the use of the sea. The internationalcommunity has tried to provide a framework for this through theregime of the Law of the Sea.36

This regime also reflects the evolution, particularly over thelast half-century, in the dynamics of how power is exercised, interms of a shift in the relative importance of economic powervis-a-vis military power. The economic dimension of the maritimeenvironment has increased in importance and likewise then itsimpact on the role of navies as instruments of statecraft, and thusnational maritime strategic concepts with respect to the exerciseof maritime/sea/naval power.

While the fundamental role of navies remains the warfightingleg of Ken Booth’s triad of naval roles—the ability to exercisecontrol over the oceans in times of conflict and thus allow for theprojection and maintenance of the balance of power in defence ofnational interests—there is a growing interest worldwide in hownavies are used as instruments of statecraft in times of relativepeace both to safeguard sovereign interests at home and in helpingsecure a more universal stable maritime regime over the world’soceans.

Of more significance is that global interdependence—and theregulatory regimes that it is fostering—lends itself increasingly tocooperative concepts of promoting confidence and security andcollaboration at either the bilateral, regional or international level.Once again the traditional utility of naval forces makes them animportant instrument of policy in this growing area of interna-tional affairs.

It is possible that the concept of creeping jurisdiction and someof the unresolved issues of the LOSC may at some time in thefuture impinge on naval mobility. But present trends are showing

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that in the broader geo-strategic environment, as instruments ofmilitary power, maritime capabilities are increasing in relativesignificance to their air/land compatriots. In terms of maritimestrategy, regimes for oceans governance only serve to reinforce theessentiality of seapower in some form or other for establishingand preserving vital national interests at sea. In this respectincreased governance of the oceans has for many maritime nationsserved not only to highlight the importance of a naval capabilitybut also to return the balance to the importance of all three ofBooth’s triad of roles to naval forces worldwide.

In closing, however, it may pay to keep in mind ProfessorD.P. O’Connell’s opening words to his two-volume work on TheInternational Law of the Sea:

The history of the law of the sea has been dominated by a centraland persistent theme: the competition between the exercise ofgovernment authority over the sea and the idea of freedom of theseas. The tension between these has waxed and waned through thecenturies, and has reflected the political, strategic and economiccircumstances of each particular age. When one or two greatcommercial powers have been dominant or have achieved parityof power, the emphasis in practice has lain upon the liberty ofnavigation and the immunity of shipping from local control; insuch ages the seas have been viewed more as strategic than aseconomic areas of competition. When, on the other hand, greatpowers have been in decline or have been unable to impose theirwills upon smaller States, or when an equilibrium of power hasbeen attained between a multiplicity of States, the emphasis haslain upon the protection and preservation of maritime resources,and consequently upon the assertion of local authority over thesea.37

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3 Seapower and security atthe close of the twentiethcenturyChoon Kun Lee

SEA POWER AND SECURITY

The end of the Cold War, with the dissolution of the Soviet Unionand other socialist states, at the end of the eighth decade of thetwentieth century has had a profound impact on the globalsecurity environment. The beginning of the twentieth century hadbeen greeted with optimistic feelings for international peace. Yetmany of the youth of that time subsequently had to fight twoworld wars. With these so-called two real ‘world’ wars, the firsthalf of the twentieth century became one of the bloodiest periodsin human history.

The end of World War Two (WWII) then produced a ratherstrange period in world history. From WWII emerged only twopowers that could be regarded as great powers, and people usuallyregarded these two powers as superpowers. However, the ‘super-power’ of the US and of the Soviet Union could not be used tofight a war, as a full-scale war between the two would have surelymeant the end of civilisation.

Fortunately for the Western alliance, and unfortunately for thesocialists of the world, the socialist bloc led by the Soviet Unionhas torn itself down. The world again looks forward to seeing apeaceful future international scene just as it did 100 years ago.There is a belief that the reduction of ideological and militarytensions at the global level will automatically bring peace to theworld. In many respects, the end of the Cold War has definitelypromoted the welcome trend of a shift from confrontation toreconciliation and dialogue among Cold War adversaries. Theworld is experiencing real arms reductions and arms control, and

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most of the major powers have the luxury of reducing theirmilitary budgets substantially.

However, this is not a general or a universal trend. Specifickinds of weapons systems in specific regions of the world duringthis latter part of the century are growing and thus making theworld more dangerous. The region where weapons are rapidlygrowing in the post–Cold War era is East Asia. Although theglobal trend of peace and arms reduction has had an impact uponrelationships within East Asia, such as the reduction of tensionand of armed forces deployed along the Sino–Soviet border inManchuria, countries in East Asia continue to increase theirdefence budgets. Among the arms of national military forces, thoserelated to the exercise of seapower are getting the most attentionas the twentieth century draws to a close.

During the Cold War, US seapower dominated the seas of theworld while the Soviet Union also tried to develop a formidablenavy to challenge American governance of the world’s oceans.However, the Soviet challenge was effectively met by US seapowerand the safety of sealanes guaranteed. Most of the countriesbelonging to the maritime global alliance led by the US weretrading states whose national security and economic prosperitywere heavily dependent upon the safety of the sealanes. Withouteffective seapower of their own, these countries felt secure underthe umbrella of US seapower. The US provided security of thesealanes as the common good for all its allies.

Now, at the turn of the century, some do not believe that USseapower continues to provide that guarantee, especially in EastAsia, where nations have decided to build up their own navies.For this reason seapower is becoming an important discussionpoint in security matters of post–Cold War international politics.

This chapter will analyse and compare seapower of the ColdWar and post–Cold War periods, with particular reference to thereasons for, and implications of, the naval arms competitionoccurring in the Western Pacific.

Seapower and the Cold War

Immediately after WWII, the US and the Soviet Union became rivalpowers representing two non-negotiable ideologies. The SovietUnion, which was a communist power, believed that people wouldbe happier if the world was governed by the principle of Marxism.The US, however, believed that the principle of a capitalist-liberaleconomy was the best means for the promotion of wealth and

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happiness of people. In this regard, the Cold War was a strugglebetween the two different ideologies.

At the same time, the Cold War was the struggle between twodifferent types of great powers. Geographically and economically,the US is a maritime power with a capitalistic and free economydependent upon international trade and safe navigation of theoceans. Unlike the US, the Soviet Union is a landlocked powerwith a socialist economy seeking autarky. In this respect the ColdWar was a struggle between a continental and a maritime power.Both the US and the Soviet Union demonstrated characteristics ofimperial powers which tended to collide with each other.1

Now the Cold War is over and the maritime power of the USand its allies emerged victorious. During the Cold War, the USdevised various tactics and strategies for winning the war. Amongmany American strategies, the entangling military alliance withcountries in Western Europe and East Asia was most important.These alliances were basically founded upon the superior navalcapability of the US. According to one commentator, NormanFriedman, ‘NATO is a maritime alliance, held together by thebroad highway of the North Atlantic and, to a lesser extent, bythe Mediterranean, the Channel, and the Baltic’.2

The American alliance with the East Asian states also hadmaritime characteristics. The US established bilateral allianceswith Korea and Japan in the early 1950s and also formed theANZUS treaty in 1951. These alliances were made possible onlythrough the connecting highways running across both the northernand southern Pacific Ocean.

The formation of these maritime alliances was a faithful reflec-tion of American strategic thinking on how to fight and win theCold War with the Soviet Union. To win the Cold War, the UScould not permit the dominance of the Soviet Union on theEurasian continent, therefore the US formed military alliances withstates located in the rim of the Eurasian continent. To supportthese states’ struggle against the Soviet bloc, the US had to havethe capability to provide sufficient strategic materials to thesecountries without hindrance if war occurred. For this purpose,control of the oceans was a strategic imperative for the US. Underconditions of a growing Russian naval threat, the US and its alliesestablished a strategy of defeating the Russian fleet at source, bytaking the sea war to the Soviet enemy in its home waters and inits coastal regions ashore.3 For this purpose, the US needed tohave not only superior seapower but also an offensive sea-controlstrategy.

The US also proved that seapower still had leverage during aperiod when there were nuclear weapons and more efficient air

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forces. After WWII, there were major strategic challenges tothe value of seapower. The invention of nuclear weapons and thedevelopment of air forces posed a challenge to the traditional valueof seapower both in war as well as in peace. The naval strategistBernard Brodie noted, after he got the news of the nuclear attackon Hiroshima, ‘that everything that he had written thus far onstrategy had been rendered obsolete’.4

It is true that these developments in weapons systems had aserious impact on the role and value of seapower during the ColdWar. However, as can be seen from several wars fought duringthe Cold War, seapower was one of the most crucial strategicelements for the US. US handling of conflicts in Korea, Vietnamand the Persian Gulf (after the Cold War) was logistically possibleonly because the US could enforce the right to use the sea withouteffective hindrance.

The US thus successfully contained the Soviet expansionistthreat through its superior naval forces. Strong American navalpower also guaranteed the safety of the sea lines of communication(SLOC) of all five oceans of the world. Therefore, US allies, mostof which are also capitalist maritime states, were provided withSLOC security without the need to build up their own navalforces. SLOC security was a common good provided by the USduring the Cold War era. The United States Navy (USN) reachedits peak during the early 1980s when President Reagan’s armsbuild-up plan was launched. The 600-ship navy was the motto ofthe Reagan years and the Reagan plan was the underlying factorof the collapse of the Soviet Union. As Dr Colin Gray has noted,‘sea power has been the midwife of victory, the—or at leasta—great enabling factor in war after war through the centuries’.5

The Cold War is testimony to this.

Seapower in the post–Cold War

The geopolitical meaning of American victory in the Cold War

About a decade has passed since the abrupt end of the Cold War.However, there is not yet a proper name describing presentinternational relations. While terms such as ‘Post–Cold War’ or‘New World Order’ are usually used, these are not appropriatefor describing this period in history. The fact that there is not aproper name for describing the present international system meansthat we do not yet know the rules and the patterns of thepost–Cold War international system. However, we can discernsome specific characteristics and patterns of the new international

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system and we can differentiate this system from that of the ColdWar.

In this new international system, the Cold War strategic struc-ture has changed radically from a bipolar to a non-bipolarsystem—non-bipolar because scholars have different opinionsabout the future international strategic structure. Some argue thatthere will be a multi-polar international system while others arguethat there will be a uni-polar (or hegemonic) international systemled by the US.6 Due to the collapse of the Soviet Union, theinternational system is no longer bipolar. Also, in this new inter-national system, there will be no ideological conflict betweencapitalism and socialism. The non-existence of ideological conflictamong nations in the New World Order represents the real changein strategic culture. As already noted, the Cold War was a warbetween capitalist and socialist powers as well as a war betweenmaritime and continental powers. In this new international system,almost every state has adopted capitalism as their principle ofnational economy. Most of the former socialist states have changedtheir national economic systems to capitalism. Along with thesefundamental changes in economy, these states have also changedtheir strategic culture from that of continental states to that ofmaritime states. Capitalist states tend to be maritime powersbecause they are commercial and trading states dependent uponforeign markets and foreign resources.

Following the Cold War, most of the important nations in theworld began to adopt national strategies with maritime charac-teristics. During the Cold War, most international conflicts wereconflicts between continental and maritime powers. Now, in thisNew World Order, most international conflicts are conflicts be-tween maritime powers.

In fact, the history of international relations can be viewed ascontests among great powers seeking world hegemony. In thiscontext, Portugal, the Netherlands, England and the US are viewedas hegemonic powers that since the beginning of the moderninternational system in the sixteenth century, each governed theworld for periods of time.

In this global struggle for hegemonic status, seapower wasusually the dominant factor that won the day and this became thepattern of history. In the sixteenth and seventeenth centuries,Portugal and the Netherlands, which dominated the seas withenormous seapower, also dominated the world. At different timeseach of them had a navy that amounted to more than 50 per centof the world’s naval strength. Later the United Kingdom becamea hegemonic power for two centuries, and possessed a navy whichwas large enough to deal with the navies of all other countries.

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To maintain their status as hegemonic powers and leaders inworld politics, they devised grand strategies covering global net-works. Challenge to their hegemony came from various sources.In the case of the United Kingdom it came from continentalpowers such as France and Germany. The United Kingdom suc-cessfully managed to maintain its hegemonic status for over 200years, primarily through the use of seapower. Nelson’s victory wascritical in the war against Napoleon and seapower was crucial tothe survival of the United Kingdom in World War I. In both theseconflicts, seapower demonstrated its strategic leverage in waragainst land powers.7

World War II can also be interpreted as a hegemonic warbetween maritime and continental powers. However, in this globalhegemonic struggle, the victor was not the old hegemon. Instead,the US won and assumed the role of a hegemonic state. The USwas a maritime state, and the Soviet Union, as a new challengerto the hegemonic status of the US, was a landlocked continentalgreat power. As we know, the Soviet challenge failed and this lastglobal struggle further proved that maritime power dominates overcontinental power in the global contest.

War and peace after the end of the Cold War

The end of the Cold War fulfilled many of mankind’s hopes.During the Cold War, there was much concern at the prospect ofall-out nuclear war between the two superpowers as exemplifiedin movies such as The Day After. Now, at least for the moment,mankind does not have to worry about all-out nuclear war andthe sudden end of civilisation. Russia, the successor state of theSoviet Union, is busy recovering its economy. The US and otherWestern states are now enjoying the dividends of the end of theCold War. Germany has been unified and West Europeans are nolonger worried about the nightmare of Russian tanks rolling west.

This situation has permitted the US and many other Westernpowers to reduce their military budgets. In 1985, one of the peakyears of the Cold War, the world spent $US1.16 trillion on arms.In 1996, the total amount of global military spending was$US796.6 billion.8

Thus the total amount of military spending has been reducedby 31 per cent during the past decade. During this same period,American military spending was reduced from $US352.6 billionto $US265.8 billion. The Soviet Union’s military spending reduc-tion was even more radical. Soviet military spending in 1985 was$US329.5 billion, compared with Russian military spending of lessthan $US70 billion in 1997. The US reduced its military spending

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by 25 per cent and the Soviet Union reduced its spending by about80 per cent over the period since 1985. In this respect, the worldseems to have become a safer place to live.

However, looking from a slightly different perspective the post–Cold War years look rather more discouraging. Some scholars countthe number of wars occurring each year. From this perspective, thenumber of wars in the world is still growing. For example, therewere 47 international conflicts waged in 1989, the last year of theCold War. Since then, 54 wars were fought in 1990, 65 in 1991, 66in 1992, 57 in 1993, 60 in 1994 and 55 in 1995.9

Seapower and security in the post–Cold War

It is true that the positive global trends of the post–Cold Warperiod have also occurred in East Asia. For example, during theearly 1990s, South Korea was able to normalise its relations withChina and the Soviet Union, both of which were arch-enemiesduring the 45-year Cold War. Between China and Russia, theterritorial disputes over the Manchurian–Siberian border wereresolved mainly through Russian concession. The relations be-tween these two great powers are even regarded by some todayas a ‘strategic alliance’. Most Asian countries experienced rapideconomic development during the Cold War and it has become arelatively wealthy region in the world. This is the representationof ‘Good Asia’.

However, there is a ‘Bad Asia’ resulting from the Cold War,as Samuel Huntington noted when he visited Korea. Bad Asia isa place where an arms race and territorial conflicts are occurring.As noted earlier, the military expenditure of the entire world hasdecreased rapidly during the last ten years. However, East Asiahas become the most troublesome region in the post–Cold Warworld if we look at its military spending. Unlike the general globaltrend, military spending in East Asia is continuing to grow, asshown by Table 3.1.

If we look carefully into the military spending and the militaryforces of East Asian countries, we can find the major rationalefor military expenditures rather easily. Since the end of the ColdWar, China has reduced its military forces by 1 million personnel.This was possible due to the end of the Sino–Soviet territorialdisputes, where Gorbachev had yielded most of the conflictingterritories back to China. However, China’s defence expenditureis growing very rapidly even after the end of these territorialdisputes and the end of the Cold War. China is modernising itsmilitary forces, with its efforts concentrated on the navy and airforce.10

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Japan, which has been a traditional maritime power, is increas-ing its naval capabilities. The Japanese have already built threeAEGIS cruisers and another one is being built. The AEGIS systemis the most advanced naval weapons system in the world and onlythe US and Japan have this system. Another worrisome develop-ment about international security is the reduction of Americanmilitary strength, especially the reduction of US naval power, inthe post–Cold War period. Most countries in the world regardedthe USN’s presence as the guarantor of the security of SLOCs.Now, after the Cold War, the reduction of US naval power isbecoming a cause of concern for many maritime states who hadbecome used to the security provided by the US during the ColdWar. These concerns have led to many countries building up theirown naval power with a consequent negative impact on interna-tional security. East Asia is the region where international securityis worsening.

Seapower and insecurity in East Asia at the close of thetwentieth century

Changing strategic culture in post–Cold War East Asia

During the Cold War period, peace was maintained in the EastAsian region even though tensions were very high. There weresome violent conflicts that occurred on the Korean peninsula,

Table 3.1 Military expenditures of the world and Asia

1985$000 000

1996$000 000

Changes%

World 1 161 042 796 572 –31.4East Asia 92 441 129 347 +39.9China 27 017 34 684 +28.4Japan 29 350 43 626 +48.6South Korea 8 592 15 168 +76.5North Korea 5 675 5 330 –6.1Taiwan 8 793 13 297 +51.2Singapore 1 622 3 959 +144.1Thailand 2 559 4 212 +64.6Indonesia 3 197 4 599 +43.8Malaysia 2 409 3 542 +47.0Vietnam 3 227 930 –71.2USA 352 551 265 823 –24.6

Source: International Institute for Strategic Studies, The Military Balance 1987–1998,Oxford University Press, London, 1997, pp. 292–8.

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Vietnam, the Strait of Taiwan and over the Ussuri River on theSiberian–Manchurian border. During the Cold War, the strategicstructure of the region was relatively simple. In East Asia, as inother parts of the world, two different ideological blocs wereconfronted during this period.

Although this simple division did not last long due to thecleavage between the Soviet Union and China in the socialist bloc,the Cold War in East Asia was still a conflict between twodifferent ideologies. During this period, the dividing line betweenthe maritime powers and the continental powers was the clear linethat passes through the rim of the Asian continent.

The end of the ideological confrontation in East Asia, however,did not necessarily mean the end of all kinds of confrontation.The situation in East Asia has in fact become more complex andunstable. With the end of the Cold War, most former socialistcontinental powers in East Asia changed their national attributes.Russia became a capitalist country through glasnost and per-estroika and China began to change its national attributes startingfrom the late 1970s, when it adopted the capitalist way of nationaldevelopment. The two communist giants in East Asia are no longercontinental and socialist powers. In a sense they have becomemaritime capitalist countries, dependent upon foreign markets andforeign trade via international sealanes. That is, most countries inEast Asia have become maritime and capitalist states and confron-tation is naturally becoming a confrontation among maritimepowers. The Western Pacific Ocean is rapidly becoming an impor-tant ground for competition and conflict among East Asiannations.

Because of the rapid economic development of most East Asiancountries, they have all become modernising industrial powers,even allowing for the financial crises of recent times. Theseindustrialising countries need to secure sufficient energy resourcesfor uninterrupted economic development. And for most East Asiannations, potential energy sources are found in the nearby seas orfor many of them transported from the Persian Gulf to East Asiavia long and dangerous sealanes.

In this regard, small uninhabited islands or, in some cases,just big rocks, which in the past were not regarded as veryimportant, have become sources of potential conflict amongmany East Asian countries. It is widely regarded that some ofthe seabed in the East Asian region contains many valuableresources such as gas, oil and other mineral materials. Someanalysts believe that parts of the seabed of the South China Seaand near the Senkaku/Diaoyudai Islands may yield billions ofbarrels of oil.11

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In such situations, small uninhabited islands, rocks and reefsare good legal grounds for claiming the underwater resources andare therefore rapidly becoming the source of territorial and sov-ereign conflicts among East Asian nations. After the Law of theSea Convention (LOSC) became effective in November 1994,territorial disputes on the sea seem to have worsened in thisregion. LOSC gives countries the right to claim 200-mile exclusiveeconomic zones (EEZ) around their sovereign territory. Many ofthe overlapping EEZs of East Asian states are new sources ofsovereign conflict.

Furthermore, the people and governments in East Asian countriesfeel that there is no guarantor of international peace in East Asia.While the US officially claims that it will stay in East Asia as a Pacificpower, most Asians feel that they should have their own navy inorder to deal with new insecurities occurring in East Asia. Thereduction of American presence in the region creates a power vacuumand many analysts worry that the vacuum might be filled by Japaneseand Chinese military power.

At the moment, four points of strategic concern emerge whenpotential challenges to Asia–Pacific regional stability are discussed.They are:

• How far will the US reduce its military presence and what willits future role in the region be?

• How far will Japan expand its influence?• How far will China extend its military capability?• What are the principal scenarios for the future of North Korea

and how will inter-Korean relations develop?12

Table 3.2 Total armed forces of major East Asian nations

1986 1996

China 3 900 000 2 840 000Japan 243 000 235 600North Korea 838 000 1 055 000South Korea 598 000 672 000Taiwan 444 000 376 000Thailand 235 300 266 000Singapore 55 000 70 000Seven-nation total 6 313 800 5 514 600

Source: International Institute for Strategic Studies, The Military Balance 1985–1986,IISS, London, 1985, pp. 111–37 and International Institute for StrategicStudies, The Military Balance 1996–1997, Oxford University Press, London,1996, pp. 170–201.

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The following attempts to describe and explain the maritimestrategies of China, Japan and the US in East Asia in the post–Cold War era. Most of the island disputes in the East Asian regionare very hard to solve, because the nature of conflict over islandterritories is a contest of sovereign will. In addition to thesesovereignty issues, the islands in dispute also have economicimportance to the conflicting states. While many different prob-lem-solving mechanisms have been tried, all of them have failedand the ‘solution by next generation idea’ only defers the questionto the future instead of solving it now. In such a situation, mostEast Asian nations have begun to increase their armed forces,especially naval forces.

Naval arms build-up of East Asia

With few exceptions, every nation in the East Asian region hasincreased its military spending substantially. North Korea is theonly country which has not increased its military expenditure inthe past decade, mainly due to its failing economy. Instead, NorthKorea has decided to develop nuclear weapons, which in relativeterms are cheaper than modern conventional weapon systems.Vietnam is the only country which has reduced its military expen-diture voluntarily.

Even New Zealand and Australia have increased their defencebudget during the past decade. Australia’s defence expenditureincreased from $US7436 million in 1985 to $US8394 million in1996, a 13 per cent increase. In simplistic terms, during the lastdecade East Asia became about 40 per cent stronger and moredangerous while the world as a whole became 31 per cent weakerand safer.

An increase of total budget does not necessarily mean anincrease across the full range of military capabilities. Militaryspending in East Asia is concentrated mainly on modern advancedweapons systems for naval and air forces. Table 3.2 shows thenature of this increasing military spending in East Asia.

Table 3.2 shows that there was a 12 per cent decrease in thenumber of personnel in the armed forces of the major East Asiancountries. This rather paradoxical situation—increasing militaryexpenditures and decreasing numbers of personnel—clearly showsthe phenomena of modernisation of the armed forces of East Asiancountries. East Asian nations have tried to increase the quality oftheir armed forces and most of their investment goes to theirnavies and air forces. The increase of naval weapons systems inthese countries is particularly impressive. In these seven countries,

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naval personnel numbers are relatively stable, compared withsubstantial reductions of army personnel.

It is clear that the armed forces of most East Asian nationshave become leaner and meaner, and more useable. Their armedforces, equipped with modern naval vessels and long-range fighteraircraft, have far better capability for power projection than theyhad ten years ago. The recent acquisition of an aircraft carrier bythe Thai Navy is a symbol of the East Asian naval arms build-up.Table 3.3 shows the current status of the major East Asian navies.

In this East Asian arms build-up, the Chinese and Japanesenavies are again the greatest cause for concern. The fact that thesetwo great powers have increased their military expenditure sub-stantially in recent years is very disappointing. The Chinese andJapanese arms build-up means that there is renewed tensionbetween the great powers in East Asia. If we consider the positionof these two great powers in world politics, the negative impactsof their arms build-up will not be confined to the East Asianregion. Increasing their defence expenditure by 48.6 per cent and28.4 per cent respectively during the last ten years, Japan andChina are the only two great powers which have increased theirmilitary budget substantially in the post–Cold War period. In1996, Japanese military spending became the fourth-largest in theworld after the US, Russia and France.

China’s military spending is more complex and worrisome. TheChinese Government officially announced its defence expenditurefor 1996 as only $US8.7 billion. If this figure is true, then, China’smilitary expenditure is only about 60 per cent of South Korea’smilitary expenditure for the same year. However, we cannot believethat this figure is true and in fact we do not know the exactamount of the Chinese military budget. The Institute of Interna-tional Strategic Studies estimates it to be $US31.7 billion and theanalysts Bernstein and Munro argued that Chinese military expen-diture is well over $US87 billion, which is about ten times largerthan the amount officially announced by the Chinese Govern-

Table 3.3 Major navies of East Asia (1996)

Major surface ships Submarines Personnel

Japan 58 16 42 500China 54 51 280 000South Korea 40 6 35 000Taiwan 36 4 38 000Thailand 15 – 66 000

Source: International Institute for Strategic Studies, The Military Balance 1996–1997Oxford University Press, London, 1996, pp. 170–201.

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ment.13 Even the most conservative estimates suggest that Chinesemilitary expenditure is at least two to four times larger thanofficially announced by the Chinese Government.

Causes of naval arms build-up in East Asia

International law and international relations specialists provideseveral different explanations for the uncommon phenomenaoccurring in East Asia in the post–Cold War. Among the causesof East Asian arms build-ups, those that are most frequentlyprovided are:

• East Asia’s rapid economic development;• the changing nature of the strategic environment in East Asia;

and• changes in the US global strategy after the end of the Cold

War.

Among these causes, changes in the US global strategy afterthe end of the Cold War, which has resulted in the reduction ofUS naval forces in the Pacific, is regarded by many scholars asthe most important reason why East Asian nations feel insecureand are therefore building up their armed forces. Even though theUS asserts that it will be an Asian power, many Asians believethat the US will disengage step by step from East Asia. In fact,the US has reduced its defence budget by about 30 per cent sincethe end of the Cold War, and some argue that the US power todayis not sufficient to keep US promises to East Asia.

All US naval and airforce bases in the Philippines have beenremoved and large portions of US land forces have been with-drawn from East Asia. Significantly, the USN has changed itsstrategy since the end of the Cold War. Traditionally US navalstrategy was of offensive sea control on the sea. However, afterthe publication of . . . From the Sea: Preparing the Naval Servicefor the 21st century,14 the guiding strategy of the USN is fightingfrom the sea. The USN has begun downsizing since the end of theGulf War. According to former US Secretary of Defence CasperWeinberger, by 1999 the (US) navy will have only 346 ships, thelowest number since 1938 and down drastically from nearly 600in 1991.15 Table 3.4 compares the state of the USN in 1990 and1997.

According to another commentator, a former Secretary of theNavy, the USN is too much reduced to assume the role of securingUS interests. Although he noted that the 600-ship navy might notbe needed in the post–Cold War, the 300-ship US navy is tooweak, even to be a post–Cold War navy.

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Lehman especially worries about the reduction of the USN inthe Pacific. He notes the increases in East Asian regional naviesas a response to the decreasing USN presence in the region, andhas reached a very pessimistic conclusion that the existence of theUS fleet as a dynamic force for stabilising the geopolitical balanceof the Western Pacific will fade away.16

Conclusion

This chapter has argued that rapid changes in seapower havecaused tension and instability in the post–Cold War world. It hasprovided a strategic picture of the Cold War years, and comparedit with the strategic picture of the post–Cold War years. The ColdWar was a war between geopolitically different blocs. One was acapitalist–maritime–liberal democratic alliance led by the US andthe other was a socialist–continental–dictatorship alliance led bythe Soviet Union. In this confrontation, the US used its superiorseapower to support its allies in the Eurasian rim fighting againstSoviet land power. During the Cold War, the USN was dominantand provided SLOC security to its allied states. The alliance ledby the US emerged victorious from the Cold War and as a resultwe now have a new international order (or New World Order) inwhich there are no communist countries and blocs. Most formercommunist states have turned their national economies into cap-italist models and have thus changed their strategic outlook fromthat of a continental state to that of a maritime state. The NewWorld Order is an international system in which only maritimepowers compete with each other.

Table 3.4 US Navy then and now

1990 1997

Personnel 590 500 395 500Nuclear subs/SLBM 34/624 18/432Submarines 127 95Aircraft carriers 14 12Cruisers 43 30Destroyers 59 57Battleships 4Frigates 100 44Carrier aircraft 1118 612

Source: International Institute for Strategic Studies, The Military Balance 1990–1991,Brassey’s, London, 1990, pp. 19–23 and International Institute for StrategicStudies, The Military Balance 1997–1998, Oxford University Press, London,1997, pp. 20–2.

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Competition among maritime powers is naturally occurring onthe seas of the world, and the seas of East Asia are becoming oneof the most dangerous places in the world. In East Asia, China,a land power during the Cold War period, has changed its strategicoutlook to that of a maritime power. Its navy is expanding veryrapidly and will continue to do so in the future. Japan is anothergreat power that has not reduced its military budget in thepost–Cold War years. Japan is also increasing its naval capability.

In addition to Chinese and Japanese military increases, thesubstantial reduction of the US naval presence in the East Asianregion is causing instability and fear among East Asian states. Thisis the reason why most East Asian states are trying to buildstronger navies of their own. This naval competition causes ten-sion and instability in the Western Pacific. Despite optimisticexpectations, the post–Cold War international system is beingplagued by many territorial disputes, and seapower is againbecoming a major factor for international peace and security atthe close of the twentieth century.

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4 The oceans andAustralia’s defenceHector Donohue

THE OCEANS AND AUSTRALIA’S DEFENCE

The key to Australia’s defence lay not on the mainland but . . . atits approaches.

General Douglas Macarthur, 8 May 1942

In 1998, the International Year of the Ocean, it was significant thatAustralia finally accepted the primary enduring feature of its geog-raphy and declared a maritime concept as the basis of the country’sdefence strategy. It took General Douglas Macarthur less than twomonths in 1942 to decide that the key to Australia’s defence lay atits approaches, but the evolution of Australia’s defence strategy sinceWorld War II has been a slow and convoluted process. However,throughout this process the oceans have been a fundamental consid-eration in our defence posture.

This chapter reviews the evolution of Australia’s defencestrategic thinking and examines some selected naval force structuredevelopments and activities and the strategic concepts usedby Australia’s defence planners against the backdrop of the mar-itime environment which dominates any consideration of defencein this country.

Australia is an island trading nation, surrounded by oceans,with over half of our national territory being sea. Austral-ia’s exclusive economic zone (EEZ) is one of the largest in theworld, covering 11 million square kilometres. The Australianmainland is surrounded by a continental shelf, which is about200 metres deep and ranges between 15 and 500 kilometres wide,covering an area of some 3 million square kilometres. Australia

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also has the third-largest fishing zone in the world, covering anarea of about 9 million square kilometres. The commercial fishingindustry is the nation’s fifth-largest primary industry, with anannual value of $1.6 billion. Offshore oil and gas production isone of Australia’s largest marine industries with an estimated valueof production of about $8 billion annually. In the early 1990s theexport of petroleum products was worth some $4.5 billion, equalto the value of meat exports. Australia’s international tourism isbased around the coast, with more than 3 million internationalvisitors coming to Australia each year. In 1996 foreign exchangefrom international tourism had reached some $16 billion, earningmore than coal exports. Australia is also the fifth-largest user ofshipping in the world, with around 12 000 ships arriving fromoverseas each year.1 Consequently, if any country had a reason fordeveloping a maritime strategy, it is Australia.

In the early post-war years, within a strategic environmentcharacterised by a strong British Commonwealth influence, Aus-tralia’s defence considerations centred on the possible contributionto the global strategies of our major allies. In an appreciation ofthe strategic position of Australia, approved by the Chiefs of StaffCommittee in early 1946, it was concluded that ‘the basic ingre-dient of Australia’s defence must be Empire Co-operation sincethe size of this country demands for its defence, armed forces andan industrial potential quite beyond our present capacity . . .’2

Less than two years later, however, at the end of 1947, thebeginnings of the break-up of the Empire were observed and thefirst flicker of a new theme appeared: ‘it [was] necessary thatAustralia should make greater efforts for self sufficiency’.3

This next appreciation, developed in September 1947, includeda statement of Australia’s geo-strategic environment which wouldnot be out of place even in today’s strategic assessments:

Australia is situated at the end of a series of islands extendingfrom South East Asia. Except for those islands to the north/northwest, vast oceans surround her. Her geographical position,therefore, is such that no hostile power, without possessingcommand of the sea and local air superiority, could successfullyinvade Australia, nor could it launch an effective major air attackon vital areas of Australia without possessing suitable bases forlaunching long range weapons.4

The first Royal Australian Navy (RAN) post-war plan involveda 13-year program at a capital cost of some $A200 million. By1960/61, the navy planned to acquire 55 new major vessels,including three light fleet carriers. These 55, together with shipsalready in service, were to comprise a Carrier Task Force of

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3 carriers, 6 cruisers and 24 destroyers, a Sea Frontier or EscortForce of some 50 frigates, and a fleet train. The initial serviceplans were not well received by Prime Minister Chifley, who notedthat the ‘aggregate future strength of the forces would be governedby the percentage of the national income and resources whichshould be devoted to defence’.5 In the event, the navy received themajor share of the defence vote because of the accepted funda-mental importance of seapower as demonstrated in the recent war,the long lead times of building ships, the inability to replace thoselost in combat, and the essentiality of the navy being at a highstate of readiness. However the approved plan resulted in a muchmore modest force structure of 2 carriers, 2 cruisers and 10escorts.

The major threat in Australia’s area was assessed as beingposed by Soviet submarines, together with a lesser air threat, butno land threat was envisaged. The decision to introduce twoaircraft carriers and the reorientation of the fleet to anti-submarinewarfare decisively shaped the force structure and the designatedrole of the fleet for the next 30 years.

The interesting feature of the RAN’s force structure is thatmost of the major fleet units were approved outside any overallstrategic or force structure plan. Only the ‘Q’ class conversionsand the Type 12 anti-submarine frigates were in direct responseto a perceived strategic need. The carriers were argued for inde-pendently, albeit on strategic grounds, while the destroyerprogram, which was to dominate naval ship-building until theearly 1960s, was approved on the basis of maintaining a con-tinuous ship-building program at the two construction yards—Cockatoo Island and Williamstown.

By the early 1950s, while Australia continued to emphasise thedoctrine of collective security, the focus of its strategic and defenceconcern had narrowed to the Southeast Asian region. Australianassessments also began to postulate strategies of defence in depthor forward defence in which Australia’s interest would be pro-tected by meeting the threat where it first arose. In the contextof the Cold War, the focus on Southeast Asia grew, and twostatements appeared which were to hold the attention of Austral-ia’s strategic thinking for the next 20 years: ‘Indochina is the keyto the defence of South East Asia’: and ‘while Indochina is held,defence in depth is provided for the Australia/New Zealand mainsupport area’.6

It is of interest that the experience of the Korean War madeno impact on force structure development and, by 1955, the RANconsisted of 2 aircraft carriers (one on loan), 4 destroyers and 6frigates, together with some other minor vessels. Between 1952

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and 1959, strategic guidance developed only in minor ways,despite the French defeat in Indochina and the establishment ofthe South East Asia Treaty Organisation (SEATO). The forwarddefence concept, now focused on Malaya, was restated, as wasthe perception of our security dependence on the community ofWestern powers. Perhaps the fading of the prospect of global warand a strengthening of interest in preparedness for limited warwas the main shift.

The alignment of Australia’s defence policy with United King-dom and United States strategic interests meant that there waslittle incentive to give priority to defence funding, which remainedat less than $A400 million throughout the 1950s. As T.B. Millarcommented, the period between 1954 and 1960 in particular

reflected a sense of security (or complacency) extending from alack of urgency in the international situation, from the protectionafforded by the United States under ANZUS and SEATO, by theBritish in Malaya and the Indian Ocean, and a lack of pressureeither from these ‘powerful and willing friends’ . . . or from theAustralian electorate that Australia should contribute or be in aposition to contribute more to the common defence.7

By 1955, the RAN was waiting to see what commitmentswould need to be met under the new SEATO regional planningarrangements to determine its future force structure. The forcestructure process was effectively moribund, with the navy concen-trating its efforts on fighting to retain the two-carrier fleet and theprolonged and expensive naval construction program. The navy’sinability at that time to articulate an effective force structure planwhich took into account Australia’s strategic requirements, eco-nomic reality and resource constraints, particularly personnel,reflected the immaturity of a navy dependent on advice from theRoyal Navy (RN) and not yet ready or able to develop as anindependent organisation.

Against the backdrop of a navy having trouble contributingtwo ships to the newly formed strategic reserve with the RoyalNavy and Royal New Zealand Navy in Malaysia and with theonly other activities being fleet training and contributing a shipto the northern fisheries patrol, Captain J.S. Mesley, then DeputyChief of Naval Staff, noted in July 1955

retention of the post war long term plan envisaging an RANconsisting of a balanced force of three aircraft carriers, six cruisers,24 destroyers and an escort force of some 60 ships and manysmaller vessels, is unrealistic and its implementation in theforeseeable future is beyond the capacity of the country’s resourcesin peace.8

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Nearly a decade after the commencement of planning for a newnavy, financial reality had finally set in.

The 1960s witnessed the beginnings of a fundamental reap-praisal of Australia’s strategic and defence requirements. Withina deteriorating strategic environment, resulting in Australia com-mitting forces to Vietnam and Malaysia, the RAN increased itsstrength with the procurement of submarines, minesweepers anda fleet oiler, and upgraded its fleet air arm. The Attack class patrolboats, which were to contribute to the RAN’s support of coastalsurveillance, had their genesis in the experience gained duringKonfrontasi.

By the late 1960s, Australia’s strategic guidance papers weredowngrading the importance of the strategies of forward defencein favour of the need to develop military capabilities suitable tothe independent defence of Australia. Central to this change inperspective was the proposed withdrawal of British forces fromMalaysia and Singapore and the declaration by President Nixon,in his 1969 Guam Doctrine, that the United States would hence-forth require its Pacific allies to shoulder a far greaterresponsibility for both regional and local defence. It also reflectedan acceptance of the fact that the more proximate Southeast Asiannations—Indonesia, Malaysia, Singapore and Thailand—werenow securely established within independent foreign and securitypolicies.

Strategic thinking at the time was clearly postulated on theassumption that Australia had to assume primary responsibilityfor its own defence, at least against neighbourhood or regionalthreats. While affirming the continued importance of the Australia,New Zealand and United States treaty (ANZUS) to Australia’ssecurity, the guidance papers also warned that we could not relyon American military aid under all circumstances.9

These themes were reflected in the 1976 Defence White Paper,which clearly identified the importance of the sea and the airapproaches to Australia. Key among the characteristics of theappropriate force structure which it outlined were:

• a good capability for external intelligence;• the capacity for regular surveillance and patrol of Australia’s

ocean approaches and maritime resource zones;• naval and air strike components to deter potential adversaries;

and• elements for protection of shipping from attack or other inter-

ference in Australia’s focal areas and port approaches.10

Apart from counter-terrorism and peacekeeping, the centraloperational tasks outlined in the White Paper identified for the

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force-in-being were all maritime: sea control in areas of Australia’smaritime jurisdiction, rapid detection of and response to anymaritime or coastal harassment, and maritime surveillance anddisplay in Australia’s areas of interest.11

At the force structure planning level, the need for greaterself-reliance gave rise to the ‘core force’ concept which sought toprovide the Australian Defence Force (ADF) with at least a latentcapability, capable of dealing effectively with current and foresee-able tasks and the kinds of military contingencies consideredcredible in the shorter term. This concept in turn led to the notionsof ‘warning time’ and the ‘expansion base’. Throughout the period1976–87, the emphasis was on naval and air forces for interdictionof potential attacks in our northern sea and air approaches, withsome ability to deal with lodgements that might nevertheless bemade.

The method of determining force structure priorities had acertain intellectual elegance, allowing strategic assessments todetermine warning time, and contingency analysis and the geo-graphical enduring features the shape and capabilities of the force.However, in practice this planning construct failed to deliver.There was a fundamental disagreement over the level of contin-gency against which the capabilities of the ADF should be assessedand the much-heralded promise of contingency analysis provedillusory. This resulted in a monumental dispute lasting about adecade on the levels of contingency and hence appropriate forcestructure. On the one hand, the three services were determined tobase their capability analysis on medium to higher levels ofcontingency, while the civilian planners insisted that the limitedcapabilities in the region meant that priority should be given tothose lower levels of threat that could arise within shorter timescales. They assessed that there should be sufficient warning timefor Australia to expand its military capabilities should a moresubstantial threat emerge.

The military remained unconvinced, as not only did theydistrust the ability of government to recognise warning indicatorsand to react to them in a timely manner, but they were also firmlyof the view that capabilities developed for higher levels of conflictwere appropriate for responding to lower level contingencies, butthat the reverse was not the case. The competing views of thelikely level and location of hostilities in which the ADF might beinvolved saw defence planning stagnate and few major capabilitydecisions made.

It was to take the foresight of the new Minister for Defence,Kim Beazley, to commission Paul Dibb in early 1985 to undertakea comprehensive review of the content, priority and rationale of

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defence planning in the light of government-endorsed strategic andfinancial guidance. The report, published a year later, was afundamental contribution to the rationalisation of defence policydevelopment and represented a major milestone in the evolutionof Australian strategic defence thinking.12 With its wide-rangingapproach to Australia’s defence planning problems, it set the scenefor a more cohesive approach to force structure planning withinthe defence hierarchy. The Dibb Review formed the basis for theDefence White Paper, Defence of Australia 1997, which firmlycommitted Australia to a self-reliant defence posture and gavepriority to the development of a balanced force capable of meetingthe postulated credible contingencies within the context of astrategy of ‘defence in depth’. Dibb had managed to provide thebridge between policy and capability that had been attemptedunsuccessfully over the previous decade and set strategic policyon a new and more fruitful path.

Following this landmark White Paper, minister Beazley alsomade a number of conceptual contributions to strategic policy,including:

• the establishment of the US defence relationship rationallywithin the framework of the strategic policy of self-reliance;

• the significance of the maritime dimension and what hedescribed as the defence of maritime focal areas and chokepoints; and

• the concept of managing the strategic environment, rather thanreacting to it.

The next step in strategic thinking came with the next strategicbasis paper, Australia’s Strategic Planning of the 1990s,13 whichdrew the important distinction between lower level and escalatedlower level conflict as involving the indirect or direct use of forceagainst Australia. It also, for the first time, established a genuineset of joint force operational roles for the ADF. These included,in addition to intelligence collection, surveillance in maritime areasof interest, maritime patrol and response, air defence in maritimeareas and the northern approaches to Australia, and the protectionof shipping, offshore territories and resources. This was a majordevelopment because, until that time, discussions on capabilityhad been primarily in terms of fairly narrowly defined, essentiallysingle-service tasks.

The 1994 Defence White Paper, Defending Australia, analysedthe strategic environment in the post–Cold War era and concludedthat the emerging new balance of power in Asia created moreuncertainty and that we face a more complex and changeablestrategic environment, but not necessarily more dangerous, than

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during the Cold War. A related judgement for strategic prioritiesin the force structure was the increased importance given to thesea–air gap in this paper, which affirmed a ‘clear priority to thenaval and air capabilities required to deny our sea and airapproaches to an adversary’.14

The latest strategic policy paper, Australia’s Strategic Policy,1997, discusses the tasks the ADF needs to undertake, the broadpriorities between them and the basic military–strategic decisionsabout the kinds of operations best suited to achieving thosetasks as efficiently and effectively as possible. It concludes thatAustralia’s strategic geography suggests we plan on operationswhich ‘concentrate on defeating any aggressors in our maritimeapproaches before they reach our territory’. Such operations canexploit the inherent advantages of our strategic geography betterthan operations on our territory. The success of such a conceptrelies heavily on air and naval forces. It also points out that landforces would have an important role in protecting command,communications and intelligence facilities and the airfields andnaval bases in northern Australia from which we would need tooperate. It notes, too, that we also clearly need the capability toreact to incursions onto Australian territory. It concludes that ‘justas Australia’s strategic geography is fundamentally maritime, sois that of the nearest region in South East Asia and the SouthPacific and indeed in the wider Asia Pacific region’.15

Throughout this evolution of strategic thought, the ADF hasbeen continually contributing to sovereignty surveillance. Civilsurveillance in Australia formally began in the late 1960s usingair force and navy aircraft to patrol the newly declared 12 nmfishing zone. During the early to mid-1970s a number of issues,such as increased foreign fishing activity and the arrival of theVietnamese ‘boat people’, began to focus the Government’s atten-tion on Australia’s civil surveillance needs. In August 1977, theGovernment announced its intention to declare a 200 nautical mile(nm) fishing zone around Australia—the Australian Fishing Zone(AFZ).

In the 1980s, Australia moved closer to a coordinated civilsurveillance effort when the Government made the Department ofTransport responsible for coastal surveillance. To support thismove, the Government increased combined military and civil airsurveillance to 27 000 hours annually. A substantial part of theincrease came from the use of chartered civilian aircraft, whilesurveillance of the AFZ continued to be carried out by RoyalAustralian Air Force (RAAF) P–3C Orion aircraft.

Coastwatch, as it operates today, developed from a review ofcivil surveillance arrangements commissioned by the Australian

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Government in 1987, which resulted in the transfer of alladministrative and operational responsibility for civil surveillanceoperations to Customs. Since commencing operations in August1988, Coastwatch has progressively developed and consolidatedits role as an independent program within Customs.

On 1 August 1994, an EEZ was declared. This has resulted inAustralia claiming territorial rights for the marine resources 200nautical miles from the coastline and extending to the edge of thecontinental shelf beyond this limit in some areas. Australia’s rightsto this zone are internationally recognised through the Law of theSea Convention (LOSC).

LOSC requires the coastal nation to ‘monitor fishing andrelated activities to verify compliance with extant regulations andtake penal or administrative action in case of non-compliance’.The ADF has a role in EEZ maintenance as an element of thedefence of Australia and its interests, and to provide the responseassets capable of supporting the surveillance and constabularyfunctions necessary to maintain the integrity of the EEZ. Therequirement to protect and preserve the marine environment is thelargest and most continuous ADF activity.

The declaration of the 200 nautical mile EEZ includes sig-nificant offshore estates, including the Australian AntarcticTerritories, McDonald and Heard Islands, as well as Christ-mas/Cocos, Norfolk, Lord Howe and Macquarie Islands. If thecontinental shelf is added to this region, then the zone extends tosome 14 million square kilometres. Within this zone, Australia isresponsible for the fisheries and seabed resources, and has juris-diction over many navigational and passage issues.

A detailed knowledge of Australia’s environment is essentialand charting and mapping conducted by the ADF has high priority.The RAN provides charts of the maritime environs and as suchis involved in the development of the EEZ boundaries, and ofensuring safe navigation within the area in which we have hydro-graphic responsibilities. The Defence Science and TechnologyOrganisation marine science activities, together with the RANoceanographic service, contribute to our overall knowledge of themaritime environment.

Effective surveillance requires intelligence to focus surveillanceefforts, and the coordination of civil and defence assets to providesystematic observation of the expanse of Australia’s maritimeenvironment. Maritime patrol and response capabilities arerequired to intercept intrusions into our maritime environment.The effectiveness of maritime forces, including naval and airassets, requires effective command, control and communicationsupport systems able to collect and fuse data from a wide range

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of sources then analyse and disseminate that information in nearreal time.

To conduct these roles, the ADF employs assets from the RAN,the RAAF, and other national defence assets such as the JindaleeOver the Horizon Radar Network. RAAF P–3C Orion aircraftprovide approximately 250 hours of surveillance in associationwith Coastwatch, and coordinate activities to supplementCoastwatch’s current 12 000 hours per annum of airborne EEZsurveillance. The RAN provides 1800 patrol boat days, primarilythrough the Fremantle class patrol boats, for patrol, interdictionand other response activities associated with illegal fishing, drugenforcement, illegal immigration and other constabulary tasks.

These military assets are commanded from Maritime Headquar-ters where there is a modern Command, Control, Communicationsand Intelligence system capable of near real time fusion and dissem-ination of intelligence and surveillance information. Defence unitsoperate in close consultation with Coastwatch through the Customscommand, control and communications infrastructure.

The regular review of Australia’s strategic circumstances andtrends, and subsequent judgements on defence policy and henceforce structure development, have maintained many commonthemes. In particular, the need for effective naval and air capabil-ities to protect our maritime approaches has always been givenpriority. Despite the changing strategic environment, dramaticchanges in technology, and fluctuations in government defencespending, some strategic concepts and perceptions have remainedalmost constant.

John Mortimer, the RANs Director of Naval Policy, has pro-duced an interesting comparison of the strategic concepts of thepre–World War I period and the late 1980s, which demonstratesthe following similarities:

• a lack of a clearly defined or identified threat;• a pre-eminence of the maritime environment in force structure

planning;• an assessment that the threat of invasion should not be our

primary force structure determinant;• an awareness of the strategic importance of Australia’s north-

ern maritime approaches and the need to develop maritimeinfrastructure to support operations in the north;

• a focus on ship characteristics and performance directly rele-vant to Australia’s geographic and strategic situation;

• a recognition that its allies might be either unwilling or unableto come to Australia’s assistance in time of defence emergency;and

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• an implicit acceptance of the benefits of local manufacture ofdefence equipment and willingness to incur the associatedfinancial premium.16

These concepts continue to remain relevant.The central theme of Australian defence strategic thinking over

the past decade has been to reinforce the concepts broughttogether by Dibb in his 1986 Defence Review. The fundamentalissue is that throughout the evolution of Australian defence stra-tegic thinking the importance of the geo-strategic environmentupon which subsequent policies have been based has remainedcentral—a large continent surrounded by oceans. As a maritimenation, Australia is dependent on the trade across these oceansfor its continued development and prosperity. As the implicationsof a self-reliance defence posture have been understood and usedas a basis for defence planning, the oceans have had a major andenduring impact.

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5 Regional maritime security

Desmond BallREGIONAL MARITIME SECURITY

The strategic architecture of the Asia–Pacific region has been inthe process of a profound transformation since the early 1990s—due partly to the end of the Cold War, but perhaps even moreimportantly, due also to the extraordinary economic growthof the region over the couple of decades before the 1997–98economic crisis.1 Economic factors, including not just the extraor-dinary rates of growth but also the high degree of economicinterdependence, are changing both the structure of security rela-tions and the systemic tendencies towards conflict or peace in theregion.

Economic factors have also generated new or at least moreengaging security concerns. For many countries in the region,economic vitality is dependent upon relatively long and sometimesquite vulnerable sea lines of communication (SLOCs). The extraor-dinary economic growth has provided increased resources forallocation to defence programs, raising the prospect of a regionalarms race. And there are concerns that the high degree of inter-dependence can serve as a transmission belt for spreading securityproblems through the region, and more particularly that, if growthfalters, or if conflict is introduced into the system, that frictionand disputation are likely to quickly permeate the region. I believethat some portents of these disturbing possibilities have beenevinced by the recent economic crisis.

New security concerns have emerged since the end of the ColdWar. There are new areas of conflict, as disputes over competingsovereignty claims, which had been repressed by the dynamics of

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bipolarity and other Cold War mechanics, now demand attention.More generally, the concept of security itself is changing as themore traditional military concerns are increasingly being supple-mented by issues of economic and environmental security. Overall,the strategic architecture in East Asia is being increasingly char-acterised by the unprecedented pace and scope of change, theincreasing complexity of regional security concerns, and increasinguncertainty in the region.

Maritime developments occupy pride of place in the emergingregional strategic architecture.2 The security environment of EastAsia is essentially maritime. Many of the countries in the region—from Japan down through Southeast Asia—are islands or islandchains. Others, such as China and South Korea, have long coast-lines. Southeast Asia lies at the junction of the Pacific and IndianOceans. In terms of shipping movements, its seas and straits—theSouth China Sea, the Gulf of Thailand, the Java Sea, the MoluccaSea, the Strait of Malacca, the Sunda Strait, the Ombai–WetarStraits and the Makassar Strait—are among the busiest in theworld.

Security in this region is very much concerned with maritimeissues and capabilities. The waterways through the region arestrategically important for both merchant and naval vessels.Coastal and offshore resources provide a principal means oflivelihood in many of the countries in the region. For manycountries, military threats can come only over (or under) the sea.Many of the more worrisome territorial and sovereignty dis-putes in the region involve disputes over islands and maritimeboundaries.

Maritime capabilities—including long-range aircraft configuredfor maritime operations, anti-ship missiles (such as Harpoons andExocets), more capable surface combatants, and submarines—areat the forefront of the defence build-ups in the region.

This chapter describes the maritime aspects of the emergingstrategic architecture in the Asia–Pacific region, including substan-tial shifts in the balance of power occasioned by the rise of themajor regional actors, and most particularly China; the efforts ofsmaller countries in the region to achieve increasing degrees ofdefence self-reliance, based in significant part on maritime capa-bilities; the emergence of new economic and environmentalsecurity concerns, many of which are maritime in nature; the areasof potential political and military conflict in the region, many ofwhich involve maritime issues; the robust arms acquisition pro-grams under way in the region, many of which involve maritimecapabilities; and other maritime issues, such as those attendantupon the entry into force of the UN Law of the Sea Convention

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(LOSC). It also describes the recent activity concerning securitydialogue and cooperation in the region, and especially the mari-time aspects. It concludes with a discussion of the increasingimportance of ‘oceans governance’.

Engaging China

It is fair to say that China has emerged as the country of mostconcern in the region. It has had, since the late 1980s, the fastestgrowing defence budget in Asia (apart from a few much smallercountries in Southeast Asia)—amounting to a doubling of defenceexpenditure in real terms over the past decade. In the mid-1990sit had the most active nuclear weapons program in the world.China’s capabilities for operating in the Western Pacific are grow-ing significantly. The Chinese Navy is acquiring a new class (Luhu,or type 052) of destroyer, upgraded versions of the Luda classdestroyers, a new class (Jiangwei) of missile frigates, and newclasses of resupply and amphibious assault ships for sustainingoperations further from shore and for longer periods. China’spower projection capabilities in the South China Sea have beenenhanced with the construction of an airbase and anchorages onWoody Island (Lintao) in the Paracel Islands, and the acquisitionof an air-to-air refuelling capability for its naval air forces. Chinais also acquiring several types of modern aircraft from Russia,including Su–27 Flanker strike fighters. For the longer term,China’s defence planners remain actively interested in the acqui-sition of some aircraft carrier capability.

These Chinese developments are generating strong apprehen-sions throughout East Asia. Some countries, such as Taiwan andSouth Korea, feel a compelling need to counter some of the newChinese capabilities with their own programs. In Southeast Asia,there is concern about the possibility that China might be ableto assert supremacy over the South China Sea. More generally,the region is disturbed by the lack of transparency attending theChinese acquisitions—with respect to the strategic purposes ofthe new capabilities as well as the ultimate dimensions of theChinese build-up. (A particularly important issue is the actual sizeand real rate of growth of the Chinese defence budget.)

There is no doubt that concerns generated by China’s sustaineddefence build-up and its assertiveness on important regional secu-rity issues, as well as the uncertainty about its policies and futureintentions, have figured in decisions concerning defence expendi-tures and acquisition programs elsewhere in the region. Forexample, China’s actions in the Spratly Islands were instrumental

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in the decision by the Philippines in February 1995 to fundextensive modernisation of the armed forces of the Philippines.

It is entirely appropriate and not at all surprising that, in aregion committed to increasing self-reliance, Chinese actionswould generate some response. Indeed, in the case of the SouthChina Sea, acquisitions and deployments by interested parties thatdeny air supremacy and control of the sea to the People’s Liber-ation Army should be welcomed. Over the longer term, moredeliberate effort might have to be accorded to the maintenance ofsome form of balance of power system in the region (in whichChina would be accepted as a legitimate and fully functioningparty).

It is imperative—as Malaysia’s leaders have argued—that Chinanot be portrayed as a threat to the region. As Prime MinisterDatuk Seri Dr Mahathir Mohamad has warned, to regard Chinaas a threat ‘would not only be wrong policy, but it would alsobe a bad and dangerous one’.3 It could become, in the worst case,a self-fulfilling prophecy.

Rather, it is essential that China be engaged in multilateraldialogues, confidence-building arrangements, preventive diplomacyand other forms of security cooperation in the region. This is notan easy exercise.4 Most Chinese security analysts and policy-makers regard multilateralism as either largely irrelevant or, atworst, potentially damaging to efforts aimed at resolving regionalsecurity issues—and probably also damaging to China’s nationalinterests. China is unwilling to discuss substantive issues con-cerning the South China Sea or Taiwan, which it regards as‘international affairs’, and refuses to allow Taiwanese participationin multilateral security forums or to itself participate in those inwhich Taiwan might be involved. Substantial military transparencyis unacceptable. China’s leaders and security planners need to bepersuaded that the alleviation of regional apprehensions about itsdefence policies and acquisition programs, through multilateraldialogue, transparency and cooperative activity, is more likely toenhance its security interests over the long term than is abstentionfrom these activities.5

Regional conflict

In East and Southeast Asia, there remains much fertile ground forregional conflict. There are about three dozen issues of simmeringand potential conflict involving competing sovereignty claims,challenges to government legitimacy and territorial disputes.6

About two-thirds of the issues involve inter-state disputes—most

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of which are over maritime boundaries and offshore territorialclaims. These include the dispute between Russia and Japan overthe southern Kurile Islands or ‘Northern Territories’; betweenJapan and China over Senkaku Island in the East China Sea;between Malaysia and Singapore over the island of Pulau BatuPutih in the Straits of Johore; between Malaysia and Indonesiaover the islands of Sipadan and Ligitan in the Celebes Sea; and,perhaps the most important potential maritime flashpoint, thecompeting claims to the Paracel and Spratly Islands in the SouthChina Sea, contested by China, Vietnam, Brunei, Malaysia, Taiwanand the Philippines.

Most of the issues are unlikely to lead to inter-state conflict.Some could well be resolved through negotiation, possibly involv-ing the institution of joint surveillance and development zonesencompassing the areas of disputation; others are quiescent, suchas the Philippines’ claim to Sabah; and others will remain essen-tially internal matters, such as the insurgency movements inIndonesia and the Philippines. Nevertheless, the high proportionof inter-state issues suggests that inter-state conflict is more likelyin the Asia–Pacific region than elsewhere. In any event, all of theissues remain sources of tension, suspicion, and misunderstanding.

Defence modernisation programs

From the mid-1980s to the mid-1990s, defence expenditure in Asiaincreased at an unprecedented rate. Together with a decline indefence spending in the US, Europe and the former Soviet Unionin the late 1980s and early 1990s, this resulted in a doubling ofthe Asian share of world military expenditure in the decade from1986 to 1996. Although gross figures should be treated carefully,the International Institute for Strategic Studies (IISS) estimates thatdefence expenditures in East Asia and Australasia amounted to$US146 billion in 1996.7

In the case of arms imports to the region, Asia’s share of worldexpenditure on arms transfers doubled in the decade from 1984to 1994,8 but has stayed about the same since then—i.e., in thecase of East Asia and Australasia, about a quarter of the worldtotal.

Some data on defence economic trends in the region from 1987to 1997 is given in Tables 5.1 and 5.2.9 Table 5.1 (representedgraphically in Figure 5.1) shows that defence expenditure in Austral-asia has been fairly constant in real terms since 1987; that the growthin defence expenditure in Southeast Asia remained steady until1995–96; and that the high rate of growth in Northeast Asia levelled

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off in 1993–94 but was resumed in 1995–96, until hit by the regionaleconomic crisis towards the end of 1997.

Table 5.2 shows that the percentage of gross domestic product(GDP) being spent on defence, which is a key indicator of theexistence of a regional arms race and the national commitmentsto such a race,10 has decreased in every country—typically byabout one-third.

Northeast Asia accounts for the great bulk of the total defenceexpenditure and acquisitions in the region, including most of themore disturbing new capabilities. Japan, China, Taiwan, andNorth and South Korea account for more than 80 per cent of EastAsian and Australasian defence expenditure ($US117 billion, or80.14 per cent, in 1996).11 Four Northeast Asian air forces are in

Table 5.1 Defence expenditure in East Asia (selectedcountries) and Australasia, constant 1995 $USbillion

1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997

Australia andNew Zealand 6.7 6.3 6.2 6.4 7.5 7.6 7.8 8.1 7.9 8 7.4Southeast Asia 11.5 14 13 14.2 15.3 15.6 15.8 17.7 18.8 19.4 18.3Northeast Asia 65 67.8 71.3 74.1 77.6 80.3 84 83.7 83.1 86 88.2Total 83.2 88.1 90.5 94.7 100.4 103.5 107.6 109.5 109.8 113.4 113.9

Figure 5.1 Defence expenditure in East Asia (selectedcountries) and Australasia, constant 1995 $USbillion

100

90

80

70

60

50

40

30

20

10

0

$US

bill

ion

1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997

Australia and New Zealand Southeast Asia Northeast Asia

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the process of acquiring some 1500 new fighter aircraft—China(about 550), Taiwan (466), Japan (400) and South Korea (160).The same four countries are also in the process of acquiring morethan 60 new destroyers and frigates, as well as about 40 newsubmarines.12

Throughout the region as a whole, there have been significantcommon themes apparent in the acquisition programs.13 East Asiais, of course, an extremely diverse region, with extraordinarydisparities in national economic resources and military capabili-ties, and significant differences in security concerns and threatperceptions—in light of which, the degree of consistency in theacquisition programs is all the more remarkable. The principalenhancements involve:

• national command, control and communications systems;• national strategic and tactical technical intelligence systems;• multi-role fighter aircraft, with maritime attack capabilities as

well as air-superiority capabilities (e.g. F–16s and F–18s);• maritime surveillance aircraft (e.g. P–3 Orions);• anti-ship missiles (e.g. Harpoon and Exocet);• modern surface combatants—destroyers, frigates, ocean patrol

vessels;• submarines;

Table 5.2 Defence expenditure in East Asia and Australasia, asa percentage of GDP

1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997

Australia 2.4 2.2 2.0 2.1 2.2 2.2 2.2 2.2 2.1 2.0 1.9New Zealand 1.5 1.4 1.2 1.1 1.2 1.2 1.1Southeast AsiaBrunei 4.3 6.2 5.6 5.6 6.4 6.4 5.8 7.4 5.5 5.2 5.5Burma 2.6 2.5 1.8 3.6 3.6 2.9 2.4 2.4 2.4 2.2 2.3Cambodia 3.5 4.7 4.0 7.0 5.9 3.8 2.9Indonesia 1.8 1.6 2.6 2.5 2.5 1.4 1.3 1.3 1.3 1.3 1.3Laos 2.5 8.6 7.9 7.4 6.3 4.3Malaysia 2.6 2.5 2.6 2.6 3.3 3.0 3.0 2.9 2.8 2.7 2.3Philippines 1.8 2.3 2.1 2.0 2.0 2.1 1.7 1.4 1.4 1.3 1.7Singapore 5.2 4.9 4.8 5.1 4.9 5.1 4.6 4.3 4.7 4.3 4.4Thailand 3.3 2.8 2.5 2.5 2.4 2.4 2.5 2.4 2.2 2.2 2.3Vietnam 16.5 8.3 2.3 8.8 7.2 8.9 8.4Northeast AsiaChina 1.9 1.5 1.6 1.6 1.6 1.6 1.4 1.3 1.1 1.0 1.0Japan 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0South Korea 4.2 4.0 4.0 3.8 3.7 3.7 3.7 3.4 3.2 3.3 3.2Taiwan 5.0 5.0 5.0 4.9 4.9 4.7 5.4 4.7 4.2 4.1 3.8

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• electronic warfare (EW) systems; and• rapid deployment forces.

Maritime issues

Maritime issues of various sorts are at the forefront of currentregional security concerns. The 1982 UNLOSC has introducednew uncertainties into the region, particularly in connection withthe exclusive economic zone (EEZ) and archipelagic state regimes.Of the three dozen conflict points in the region, more than a thirdinvolve disputes over islands, continental shelf claims, EEZ bound-aries and other offshore issues. Many emerging regional securityconcerns, such as piracy, pollution from oil spills, safety of SLOCs,illegal fishing and exploitation of other offshore resources andother important elements of economic security are essentiallymaritime. These concerns, together with the requirements fordefence self-reliance and force modernisation, are reflected in thesignificant maritime dimension of the current arms acquisitionprograms in the region—for example, the maritime surveillanceand intelligence collection systems, multi-role fighter aircraft withmaritime attack capabilities, modern surface combatants, sub-marines, anti-ship missiles, naval electronic warfare systems, andmine warfare capabilities.

Impact of the 1997–98 economic crisis

The economic crisis which befell large and important parts of theregion in the third quarter of 1997, and then spread and worsenedover the next six months, was a shattering event. It has affectedall dimensions of the relationship between economics and secu-rity—including the structure of the security architecture (which islargely determined by relative long-term economic growth rates);the functionalist or behavioural aspects, whereby the high degreeof economic interdependence induces avoidance of major conflictand war; and the possibilities of using closer economic relationsto promote security cooperation.14

The most palpable impact has been on the levels of defenceexpenditure and the weapons acquisition programs. Analytically,this was only to be expected, since the relationship betweeneconomic growth and defence expenditure in the region is quitedirect. As I noted some years ago, after examining a dozenexplanations for current levels of defence spending:

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The rates of economic growth provide the single best indicator ofincreases in defense expenditures throughout the region. In the caseof the ASEAN countries, a series of studies of the relationshipbetween defense expenditure and economic growth from the early1960s through to the late 1980s have consistently shown that thereis a close and positive correlation between them. Those countrieswith the highest rates of growth of gross national product (GNP),such as Singapore and Malaysia, have had the highest rates ofincrease of defense spending, while those with slower economicgrowth, such as Indonesia and the Philippines, have had theslowest increases in defense spending.15

In other words, in those countries where the rate of economicgrowth will be negative for a year or two, such as Thailand andMalaysia, and Indonesia for somewhat longer, the rate of growthof defence spending will fall (and probably become negative). InOctober 1997, the Thai defence budget was cut by 12 per cent.16

In December 1997, the Malaysian Government announced a cutof about 10 per cent in the 1998 defence budget, with a further8 per cent under consideration.17 The Indonesian defence budgetfor 1998 is likely to be halved.18

The decline or slower growth of regional defence expenditurewill affect procurement, operations, training and defence cooper-ation. With regard to acquisition programs, there have been somecancellations and many deferrals—although media reports havegenerally failed to distinguish between cancellations and deferrals,or indeed to specify which were firmly contracted orders ascompared to deals yet to be consummated. Thailand’s contract for8 F/A–18C/D fighters may be cancelled, but a delay of delivery(and payment) until 2003 is a more likely possibility. Malaysiahas deferred plans to buy attack helicopters, medium transporthelicopters and armoured vehicles, and its plans to acquire oceanpatrol vessels from Germany are in some doubt. Indonesia haspostponed orders for nearly all new weapons systems, including12 Su–30K fighters, 8 Mi–17 helicopters, 50 Scorpion tanks/troopcarriers, and 5 second-hand German submarines.19

Almost all of the deferred weapons systems are still consideredto be necessary requirements, to be acquired as soon as economiccircumstances permit. There have been many factors involved inthe particular acquisition programs of all the countries in theAsia–Pacific region over the past decade or so, some of which areentirely non-military (such as the perceptions of prestige attendantupon high-technology aerospace programs). Asia–Pacific countriesincreased their defence spending through the last decade notsimply because of their increased economic capacity, but ratherbecause that capacity has allowed them to address increasing

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security concerns. As I concluded a more comprehensive reviewof regional acquisition programs elsewhere:

Geostrategic and military factors provide the best accounting forthe recent regional acquisitions. In other words, by and large, theacquisitions represent a rational response to the demands ofenhanced self-reliance in the context of increasing regionaluncertainty, which is attendant upon the extraordinary rate andextent of change which now permeates the region.20

The general commitment to greater self-reliance remainsunabated, and the economic crisis has done nothing to reduceregional uncertainty or promote regional confidence. It is likelythat in most of the affected countries the deferrals will extend foranother two or three years, and in Indonesia for at least anotherfive years.

Most contracted programs will proceed during this period andthere will also be some substantial new orders. Indonesia intendsto take delivery of 16 Hawk–200 light multi-role fighters, begin-ning with the first two in May.21 Malaysia is proceeding with itstwo-frigate program.22 And in April the Philippines issued tendersfor 24 multi-role fighters and 7 patrol vessels as part of a$S13 billion defence modernisation program.23 It is likely that adecade from now, in the case of nearly every country apart fromIndonesia, the force structures will be essentially the same as theywould have been in the absence of the economic trauma.

This is not to underestimate the shorter-term impact of currenteconomic difficulties in other areas of defence activities. Withregard to operations, in Southeast Asia at least, the economic crisishas refocused attention on home defence, internal security, andsoft security issues (such as illegal immigration, or illegal fishing).Indonesia, for example, has intensified its internal security oper-ations.24 By March 1988, Malaysia had deployed four navy vesselsand two air force helicopters to assist the police in dealing withthe influx of illegal immigrants from Indonesia, of whom some300 were reportedly arriving daily by boat to escape the economicconditions in their own country.25 (There have even been reportsthat Australia’s coastal surveillance activities were intensified inJanuary–February as the number of illicit small aircraft flights intonorth Australia ‘increased significantly . . . at the height of theIndonesian currency crisis’.)26

Training and exercise programs are always vulnerable in diffi-cult economic circumstances. At the beginning of 1998, forexample, the Thai Air Force announced that its training andexercise programs were being cut by 70 per cent because of itsinability to afford fuel.27

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This has inevitably impacted upon regional defence cooperationprograms, of which joint training and exercise activities are cen-trepieces. For example, in early 1998 the Thai Air Force reckonedthat its joint exercises with Malaysia and Singapore might haveto be cut by as much as a half or even two-thirds.28 In March,the US Department of Defense announced that it would providesupport to ‘maintain the scope of quality of [its] joint exercises’with Thailand as well as with Indonesia, Malaysia, the Philippines,Singapore and South Korea.29 Australia has also been concernedthat Indonesia’s difficulties might reduce the momentum of coop-erative activities; more specifically, it has reportedly paid for someof the Indonesian Air Force’s fuel costs in order to ensure thatthe maritime patrols in the Zone of Cooperation in the Timor Seaare maintained. Another aspect of cooperation, involving theattendance of regional military officers at Australian staff colleges,has also been hit by the cuts in regional defence budgets.30

It is possible that, over the longer term, the straitened economiccircumstances will lead to more efficient regional defence forces.The need for large budgetary cuts and for the cancellation anddeferral of procurement programs could lead to a more rigorousanalysis of force structure requirements and a discarding of lessrelevant systems (although I am not optimistic about this). In someplaces, the lull in new acquisitions has provided the opportunityfor defence commanders and staffs to accord more attention tothe development of more coherent doctrines and operational con-cepts, as well as more efficient maintenance and logistic supportcapabilities, thus enhancing the net effectiveness of particularforces. In the case of regional defence cooperation, there couldwell be a consolidation of joint activities and a reorientation awayfrom relatively expensive exercises to more carefully tailored train-ing programs. At the least, it should impel a stocktake of thesecurity cooperation process in the Asia–Pacific region, whichgrew at an extraordinary pace in the half-decade from 1991 to1996, but was already losing momentum by 1997.31

Maritime security cooperation

As I have argued at greater length elsewhere, the extraordinaryprogress with the institutionalisation of security cooperation inthe Asia–Pacific region since about 1991–92 has been conducedby concerns which regional security policy-makers and analystshave about certain aspects of the emerging regional security envi-ronment. The principal concerns are the uncertainty whichpervades the region, the high levels of economic interdependence

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and concomitant levels of vulnerability to destabilising economicforces and economically inspired political conflict, the challengeof the major Asian powers (and especially China), the vigorousarms acquisition programs throughout the region, the prospectsof proliferation of weapons of mass destruction (at least in North-east Asia), a variety of important maritime issues, the existenceof numerous territorial and sovereignty disputes and the possibilitythat one or more of these could erupt into war.32

The salience of maritime concerns is well reflected in theinstitutionalised regional security cooperation process, wheremuch of the dialogue and other cooperative activity is intendedto directly address maritime matters, while much again hasa significant maritime dimension. For example, maritime strikecapabilities not only comprise a large proportion of the newacquisitions in the region, but these capabilities are also the onesthat are more likely to generate offsetting acquisitions elsewherein the region and hence to trigger unanticipated and undesiredarms races. It is therefore particularly necessary that these acqui-sitions be accompanied by transparency and dialogue. Many ofthe new maritime weapons systems, such as submarine warfaresystems and long-range anti-ship missiles requiring over-the-horizon targeting, happen to be more prone to accidents andmiscalculation; hence the desirability of instituting some avoidanceof incidents at sea regime in the region. Other concerns, such aspiracy and illegal activities throughout many of the EEZs in theregion, can best be addressed through cooperative surveillanceand/or information-sharing efforts and arrangements.

Some of the foundations for building confidence and securityin the maritime dimension have already been instituted in theregion. The most important of these is the Western Pacific NavalSymposium (WPNS), a biennial conference initiated by the RoyalAustralian Navy in 1988, which brings together representatives ofthe navies of the Association of South East Asian Nations(ASEAN) states, the United States, Japan, the Republic of Korea,the People’s Republic of China, Papua New Guinea, Australia andNew Zealand for a frank exchange of views on a wide range ofissues, including the law of the sea and SLOC protection. It is aunique forum and a significant step towards better understandingbetween regional navies. Some of the important conclusionsreached during WPNS dialogues are that the focus of cooperativeactivities should be on operational matters, directed to very par-ticular concerns (perhaps mostly non-military in nature), andbeginning with basic modes and procedures for informationexchange rather than the erection of new structures for multilat-eral maritime surveillance efforts. For example, it was agreed at

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a WPNS Workshop in Sydney in July 1992 to jointly develop a‘Maritime Information Exchange Directory’ (MIED), wherebyinformation on certain maritime activities would be shared by theparticipating navies.33 A suggested list of activities which require‘time-critical’ reporting includes: ‘maritime pollution/environmentconcerns; high seas robbery/piracy; fisheries infringements; searchand rescue; suspicious activity indicating possible narcotics traf-ficking; [and] humanitarian concerns’.34 The directory includesformatting styles, addresses for reporting information, and theagreed means of communication (such as specific radio frequen-cies). The development of common procedures for communicationbetween regional navies and vessels provides a significant capa-bility for regional confidence-building, which obviously fartranscends the particular purposes of the directory itself. However,it must be said that many navies in the region have yet toparticipate in MIED exchanges.

The ASEAN Regional Forum (ARF)

The most fundamental building block for cooperative securityregimes in the Asia–Pacific region is the institutionalisation ofregional security dialogue. Such dialogue should lead to betterappreciation of the concerns, interests and perceptions of theparticipating countries, enhancing mutual understanding and trust,and preventing misinterpretations, misunderstandings and suspi-cions likely to cause tensions and even conflict. More generally,institutionalised dialogue would serve as a mechanism for manag-ing some of the uncertainty which presently confounds regionalsecurity planners and analysts. However, too much should not beexpected from the dialogue process in terms of agreed solutionsto regional security problems, at least through the first decade ofthe next century.

By far the most important development in this area has beenthe ASEAN Regional Forum (ARF), which developed promptlyfrom the decision by ASEAN foreign ministers in 1991 to use theASEAN Post-Ministerial Conference as an ‘appropriate base’ foraddressing regional peace and security issues.35 The first ARFmeeting was held in Bangkok in July 1994. To begin with, theARF agenda was quite modest, though—as Singapore’s DefenceMinister, Dr Yeo Ning Hong, noted—the fact that 18 countries‘at different levels of development and with different views onhow to achieve regional stability and resolve security issues’ couldmeet to discuss sensitive security matters ‘is by itself a significantachievement’.36 The first meeting was exploratory in nature and

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concerned as much with getting the mechanics and the process ofdialogue right as with substantive issues.

The second ARF meeting was held in Bandar Seri Begawan inBrunei Darussalam on 1 August 1995. This was a path-breakingmeeting. The ministers adopted ‘a gradual evolutionary approach’to security cooperation as set out in a Concept Paper prepared bythe ASEAN senior officials for the ARF Senior Officials Meeting(SOM) in Bandar Seri Begawan in May.37 This evolution is to takeplace in three stages:

Stage 1: Promotion of Confidence-Building Measures.Stage 2: Development of Preventive Diplomacy Mechanisms.Stage 3: Development of Conflict-Resolution Mechanisms.38

The Concept Paper included two lists of confidence-buildingmeasures and other cooperative activities (see Table 5.3). The firstlist ‘spells out measures which can be explored and implementedby ARF participants in the immediate future’, that is, over thenext couple of years, such as publications of statements of defencepolicy, participation in the UN Conventional Arms Register andreciprocal high-level personnel exchanges. The second list is ‘anindicative list of other proposals which can be explored over themedium and long term by ARF participants and also consideredin the immediate future by the Track Two process’, such ascooperative approaches to SLOCs, the establishment of zones ofcooperation in areas such as the South China Sea and maritimeinformation databases.39

The ARF SOMs, Intersessional Meetings and IntersessionalSupport Group

The foreign ministers meet at the ARF only once a year (for twodays, in late July or early August). At the official level, a processof SOMs has been instituted to support the ARF process, withmatters such as the preparation of agenda and meeting arrange-ments.

The first ARF SOM was held in Bangkok in May 1994,preparatory to the ARF meeting in July. Various proposals forconfidence- and security-building measures (CSBMs) were tabledat the SOM, but these received only perfunctory consideration, asmost of the meeting was taken up with the protocol andorganisational aspects of the first ARF. The second ARF SOM washeld in Brunei in May 1995, two months prior to the second ARF.This meeting was much more productive. It received for consid-eration the Concept Paper prepared by the ASEAN senior officials,

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Table 5.3 The ARF process

STAGE I: IMMEDIATE (1995–96)

I CONFIDENCE-BUILDING MEASURESPrinciplesPrinciples1 The development of a set of basic principles to ensure a common

understanding and approach to interstate relations in the region.2 Adoption of comprehensive approaches to security.TransparencyTransparency3 Dialogue on security perceptions, including voluntary statements of

defence policy positions.4 Defence publications such as Defence White Papers or equivalent

documents as considered necessary by respective governments.5 Participation in UN Conventional Arms Register.6 Enhanced contacts, including high level visits and recreational activities.7 Exchanges between military academies, staff colleges and training.8 Observers at military exercises, on a voluntary basis.9 Annual seminar for defence officials and military officers on selected

international security issues.

II PREVENTIVE DIPLOMACY1 Develop a set of guidelines for the peaceful settlement of disputes, taking

into account the principles in the UN Charter and the TAC.2 Promote the recognition and acceptance of the purposes and principles

of the TAC and its provisions for the pacific settlement of disputes, asendorsed by the UN General Assembly (UNGA) in Resolution 47/53 (B)on 9 December 1992.

3 Seek the endorsement of other countries for the ASEAN Declaration onthe South China Sea in order to strengthen its political and moral effect(as endorsed by the Programme of Action for ZOPFAN).

III NON-PROLIFERATION AND ARMS CONTROLSoutheast Asia Nuclear Weapons-Free Zone.

IV PEACEKEEPING1 Seminars/Workshops on peacekeeping issues.2

Exchange of information and experience relating to UN PeacekeepingOperations.

V MARITIME SECURITY COOPERATIONDisaster Prevention

STAGE II: MEDIUM AND LONG TERM

I CONFIDENCE-BUILDING MEASURES1 Further exploration of a Regional Arms Register.2 Regional security studies centre/coordination of existing security studies

activities.3 Maritime information data bases.4 Cooperative approaches to sea lines of communication, beginning with

exchanges of information and training in such areas as search andrescue, piracy and drug control.

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as well as the products of three other ‘intersessional’ meetings (ontrustbuilding, peacekeeping, and preventive diplomacy). In addi-tion to endorsing the Concept Paper, the ARF SOM alsorecommended the establishment of an Intersessional SupportGroup on Confidence Building and of Intersessional Meetings onCooperative Activities (including peacekeeping and search andrescue) to assist the chairman of the ARF SOMs.40 These inter-sessional activities have become the most important mechanismfor the development and implementation of regional CSBMs.

5 Mechanism to mobilise relief assistance in the event of natural disasters.6 Establishment of zones of cooperation in areas such as the South China

Sea.7 Systems of prior notification of major military deployments that have

region-wide application.8 Encourage arms manufacturers and suppliers to disclose the destination

of their arms exports.

II PREVENTIVE DIPLOMACY1 Explore and devise ways and means to prevent conflict.2 Explore the idea of appointing Special Representatives, in consultation

with ARF members, to undertake fact-finding missions, at the request ofthe parties involved in an issue, and to offer their good offices, asnecessary.

3 Explore the idea of establishing a Regional Risk Reduction Centre assuggested by the UN Secretary-General in his Agenda For Peace and ascommended by UNGA Resolution 47/120 (see section IV, operativeparagraph 4). Such a centre could serve as a data base for theexchange of information.

III NON-PROLIFERATION AND ARMS CONTROLA regional or sub-regional arrangement agreeing not to acquire or deployballistic missiles.

IV PEACEKEEPINGExplore the possibility of establishing a peacekeeping centre.

V MARITIME SECURITY COOPERATION1 A multilateral agreement on the avoidance of naval incidents that apply to

both local and external navies.2 Sea Level/Climate Monitoring System.3 Establishment of an ASEAN Relief and Assistance Force and a Maritime

Safety (or Surveillance) Unit to look after the safety of the waters in theregion.

4 Conventions on the Marine Environment:• Dumping of Toxic Wastes, and• Land-based Sources of Marine Pollution.

5 Maritime surveillance.6 Explore the idea of joint marine scientific research.

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The ‘second-track’ process

Since the early 1990s, there has been a burgeoning of non-governmental activities and institutional linkages, now generallyreferred to as the ‘second-track’ process.41 According to a currentcompilation, these second-track meetings now exceed one perweek.42 Some of these are small workshops, sometimes involvingless than two dozen participants, and designed to address specificissues (such as security of the sealanes through the region orterritorial disputes in the South China Sea).

The Council for Security Cooperation in the Asia Pacific(CSCAP)

At the second-track level, the most structured and ambitiousinitiative has been the establishment of the Council for SecurityCooperation in the Asia Pacific (CSCAP). The essential purposeof CSCAP is to provide ‘a more structured regional process of anon-governmental nature . . . to contribute to the efforts towardsregional confidence building and enhancing regional securitythrough dialogues, consultation and co-operation’.43

Established in 1992–93, CSCAP is a non-governmentalorganisation (NGO), but one which integrally involves governmentofficials, albeit in their private capacities. Although it is consideredessential that the institution be independent from official controlin order to take full advantage of the extraordinary vitality andfecundity of NGOs engaged in the second-track process, as wellas to allow relatively free discussion of diplomatically sensitiveissues that cannot be brought up in official forums, it is alsorecognised that official involvement is necessary in order to attractgovernment resources and to ensure that the value and practica-bility of the NGO efforts secures official appreciation. In otherwords, the prospects for implementation should count for as muchas the intrinsic worth of any ideas generated in the second-trackprocess. It is considered important that the official involvementinclude senior military personnel as well as defence civilians andforeign affairs officers.

The progress that CSCAP has made over the past five yearshas been quite remarkable. In addition to the founding ten mem-bers of the council (Australia, Canada, Indonesia, Japan, SouthKorea, Malaysia, the Philippines, Singapore, Thailand and theUnited States), six other countries have joined (New Zealand,Russia, North Korea, Mongolia, Vietnam and China), as well asfour associate and observer members (European CSCAP, India, the

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United Nations and Taiwan). Nineteen member committees havebeen established, as well as a CSCAP Secretariat in Kuala Lumpur.

Five Working Groups, which are the primary mechanism forCSCAP activity, have also been established. These are a WorkingGroup on CSBMs, which has been mainly concerned with trans-parency measures, such as Defence White Papers and regionalarms registers, but is now also considering the question of anAsiaAtom for dealing with security aspects of nuclear energydevelopments in the region; a Working Group on Concepts ofComprehensive and Cooperative Security, which has produced aCSCAP Memorandum [No. 3] on The Concepts of Comprehensiveand Cooperative Security which was submitted to the ARF SOMsin 1996;44 another on Security in Northeast Asia, which has hada slower start than the others, due to the relatively recent accessionof North Korea and China to CSCAP; and a Working Group onMaritime Cooperation, which has been the most productive. Thefifth Working Group, on Transnational Crime and Regional Secu-rity, was established in 1996–97.

The CSCAP Working Group on Maritime Cooperation

The CSCAP Working Group on Maritime Cooperation is oneof the most important second-track activities in the region. Underthe leadership of Indonesian and Australian co-chairs, Rear Admi-ral R.M. Sunardi (Retd) and Commodore Sam Bateman (Retd),this group has been well structured, efficiently organised, con-scious of its objectives, and has a perspective plan designed toachieve those objectives. Its membership includes serving andretired naval officers, marine scientists, international lawyers,ocean and coastal management authorities, and scholars fromvarious disciplines. A broad view of security has been adopted,encompassing such issues as maritime safety, resources conserva-tion, coastal zone management and unlawful activities at sea (forexample, drug smuggling, illegal population movements andpiracy), as well as more conventional maritime security issues.45

The Working Group on Maritime Cooperation has now hadfive meetings—in Kuala Lumpur in June 1995 and April 1996, inJakarta in December 1996, in Bangkok in May–June 1997, andin Tokyo in November 1997. The group has now produced threeedited volumes.46 The meeting in Jakarta in December 1996 pre-pared a draft Guidelines for Regional Maritime Cooperation,which began as a proposal for a Regional Agreement on theAvoidance of Incidents at Sea but has been substantially broadenedto serve as a multilateral instrument for maritime cooperation

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quite generally. It contains articles on matters such as respect forsovereignty and sovereign rights, law and order at sea, marinesafety, marine scientific research and disaster mitigation.47 TheGuidelines have recently been forwarded to the ARF SOMs.

The papers prepared for the meeting in Bangkok in May–June1997 were published in early 1998.48 They are concerned with‘Regional Oceans Management and Security’, and include discus-sions of jurisdictional rights and responsibilities concerningactivities such as navigation, fishing, mining, waste disposal, tour-ism and recreation in oceans; possible management regimes;conflict and dispute settlement regimes; marine environmentalmanagement; law and order and safety at sea; and other possibil-ities for enhancing dialogue, cooperation and regional relationswith respect to maritime matters.

Regional oceans management and security

Improved mechanisms for ‘oceans governance’, by national gov-ernments, regional organisations and international agencies, arean increasingly urgent necessity. The expansion of economic activ-ities at sea has led to over-fishing, pollution, and irreparableenvironmental damage. There are numerous overlapping claims tojurisdiction, a lack of agreed maritime boundaries, and no agreedmechanisms for dispute resolution.

Good oceans governance is important for regional security inseveral ways. It may well be not only that agreements for regionalcooperation with respect to marine scientific research, resourceand environmental management, safety, and economic activitiesare easier to reach than agreements concerning conventionalsecurity cooperation, but also that they provide opportunities forregional dialogue which build mutual trust and confidence andenhance regional security overall. It has immense potential valueas a basis for preventive diplomacy.49

Conclusion

Extraordinary progress has been made over the past decade withthe institutionalisation of CSBMs in the Asia–Pacific region. Ascompared to the situation in the early 1990s, the process is nowmuch more structured and focused. The ARF has been establishedand has endorsed a schedule for implementation of a wide varietyof CSBMs; and a second-track process, of which CSCAP is thepremier institution, has been developed to support the ARF.

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The maritime aspect has been central to this process—reflectingthe maritime dimensions of the Asia–Pacific region and the increas-ing importance of maritime factors (including economic activities,arms acquisitions, and issues of national conflict) in the regionalsecurity environment. This importance has been acknowledged atthe official level in the ARF’s agenda, which features maritimematters in both its ‘immediate’ and ‘medium and long term’time frames, as well as in more specific forums such as theWorkshops on Managing Potential Conflict in the South ChinaSea. At the second-track level, it is evinced in the activities of theCSCAP Working Group on Maritime Cooperation.

It has been appreciated that the maritime aspect of security isvery comprehensive. Conventional maritime security issues remainimportant—such as the security of SLOCs and naval develop-ments. However, non-conventional security issues, such as marinesafety, resources conservation, coastal zone management andunlawful activities at sea (e.g., drug smuggling, illegal populationmovements, waste disposal and piracy)—i.e., matters which com-prise ‘oceans governance’—are increasingly important.

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6 Oceans governance andregional security cooperationJi Guoxing

OCEANS GOVERNANCE AND REGIONAL SECURITY COOPERATION

Following a variety of United Nations (UN) ‘years’ to mark globalissues ranging from human rights to poverty eradication, 1998was the UN International Year of the Ocean. The aim of the Yearof the Ocean was to draw the world community’s attention to theissue of the ocean and to encourage them to take actions forsustainable economic development and environmental protectionof the world’s oceans.

The world is now faced with population increase, resourcescarcity and environmental degradation. Global and regional ten-sion and conflict is becoming increasingly associated with accessto and control over resources and concern for the environment.Many countries are pinning their hopes on solutions to thesethorny issues, on the oceans. Taking advantage of the opportuni-ties created by the Year of the Ocean, progress might be madetoward some substantial and practical agreements on cooperativeefforts in oceans governance. With the entry into force of the UNLaw of the Sea Convention (LOSC) in November 1994, a newperiod of peaceful utilisation and comprehensive governance ofthe oceans has begun. However, a maritime cooperative securityregime, both regional and global, has not been correspondinglydeveloped, and critical uncertainties in maritime jurisdiction arematters of common concern.

Oceans governance in fact is part of security, and maritimecooperation is an essential element of security cooperation. Untilnow, maritime security cooperation has not been given enoughattention. As the sea is the central component of the Asia–Pacific,

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maritime cooperation could act as a catalyst for establishinga security regime, and serve as a bridge for broader securitycooperation.

Professional sailors share a common maritime heritage and uniqueway of life that provide fertile ground for achieving broaderinternational goals.

Despite differences in cultures, religions, and politicalpersuasions, there is much in our common experience at sea thatbinds seafaring men and women together. In raging seas andtyphoon winds there are no enemies, only survivors.1

The comprehensive cooperation in oceans governance and mar-itime security in the Asia–Pacific should be put on the regionalagenda as soon as possible.

Regional oceans governance and maritime cooperation couldbe unfolded within either the Association of South East AsianNations (ASEAN) Regional Forum (ARF) or Asian Pacific Eco-nomic Cooperation (APEC). But the reform and restructuring ofARF and APEC should be done first so that they themselves willbe efficient enough to deal with challenges.

Present status

The sea is the very source of life on earth. More than 70 per centof the earth’s surface—361 million square kilometres—is water,and 3.6 billion people live within 60 kilometres of coasts. Themarine resources are enormous. Apart from many other minerals,there are an estimated 135 billion tonnes of oil and 140 trillioncubic metres of gas under the sea, constituting 45 per cent of theworld total oil and gas resources. More than 12.5 million fisher-men annually net 90 million tonnes of fish.

The Asia–Pacific is distinctively maritime in nature. The SouthPacific region is almost entirely water. Southeast Asia has a vastspan of water, with the South China Sea covering an area approx-imately 2.5 million square kilometres. Northeast Asia has theYellow Sea, East China Sea, the Sea of Japan, the Sea of Okhotsk,and the Bering Sea. There are several straits of strategic impor-tance, such as the Straits of Malacca, Lombok, and Sunda inSoutheast Asia and the Straits of Tsushima, Tsugaru, and LaPerouse in Northeast Asia.

In terms of ship movement, the seas and straits in the regionare among the busiest in the world. The Strait of Malacca, withas many as 200 ship movements per day, is one of the busiestchannels in the world, and there are more naval accidents in the

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Sea of Japan than in any other region. Many countries in theregion rely on the sea to develop trade and acquire resources fromother continents. The bulk of US trade with Asian–Pacific coun-tries is done across the sea, and Japan depends on the sea forresources and shipping of its manufactured goods. ‘In the AsiaPacific region, tension over access to energy resources is becomingacute. There are fears among several nations in the region overthe security of their energy supply.’2

There exist a lot of maritime disputes in the Asia–Pacific.LOSC has created for the first time an all-round legal frameworkfor the oceans, and has made a substantial contribution to oceansorder; but despite its intention to minimise conflict and eliminateambiguity, the LOSC is itself a source for new conflicts. Overlap-ping jurisdiction in the exclusive economic zone (EEZ) andcontinental shelf is an inevitable outcome of this new regime.In Southeast Asia, for example, all littoral states have declared200 nm EEZs, and it is estimated that probably 90 per cent ofthe living resources and almost all of the presently exploitablenon-living resources are found within the 200 nm EEZs. The EEZsof most bordering states overlap with adjacent neighbours, thusgiving rise to boundary delimitation problems. The jurisdictionalproblems over high seas enclaves within the semi-enclosed Sea ofOkhotsk and the Bering Sea are also a source of internationaldispute.

The situation is further complicated by existing territorialdisputes that have direct relevance to maritime jurisdiction. InNortheast Asian waters, there is the contention between Chinaand Japan over the Diaoyu Dao/Senkaku Islands, the contentionbetween Japan and South Korea over the Dok-Do/Takeshima, andthe conflict between Japan and Russia over the Northern Islands.In Southeast Asian waters, the most contentious issue is themulti-claimed Nansha/Spratly Islands, which are of strategicimportance because of their marine resources, potentially largesubmarine deposits of oil and gas, and the location in the middleof sea lines of communication (SLOC) between the Indian andPacific Oceans.

To defend respective maritime rights and interests, many coun-tries in the region, including a number of medium and small states,are engaging in defence build-ups. Maritime capabilities are at theforefront of these defence acquisition programs. In the near future,there will be more navies of consequence on the maritime scene.With the significant increase of regional maritime strike capabili-ties, the risk of local misunderstanding and miscalculations willbe much higher than it is at present.

Marine environmental degradation in the Asia–Pacific is

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another serious problem. This includes land-based sources ofmarine pollution, vessel source pollution, hydrocarbon pollution,decline of vulnerable marine animals, etc. In the region, ‘[a]growing set of pervasive environmental problems including funda-mental alterations of biological and geophysical conditions areundermining economic growth and creating societal disputes’.3

This greatly affects the sustainable development of the region, andis in contradiction with Chapter 17 of Agenda 21, agreed at theUN Conference on Environment and Development in Rio deJaneiro in 1992 on the sustainable development of the coastal andoceans environment of the world.

What is more worrisome is that there is no maritime securitycooperation mechanism in the region. Unlike Europe, there are nowell-defined and established rules. Except for a few bilateraltreaties, no broadly recognised procedures provide guidelines forthe conduct of maritime activities within the region. Maintenanceof the status quo ‘ignores manifold signals of approaching dangerand invites mistrust, miscalculation, and miscue in the evolvingregional security environment’.4 The suspicion in interstate rela-tions is fostered by a network of potential conflicts which couldescalate dangerously. Furthermore, countries in the region lack thepolitical will to deal with the sovereignty disputes over islands.

Scope of cooperation

The scope for regional maritime security cooperation includestransparency, confidence-building measures (CBMs) and navalarms control. These measures may be developed both progressivelyand alternately. They overlap to a certain extent, and can com-plement and promote each other. They may also be divided intoseveral stages for adoption. Transparency would be set for the firststage, and naval arms control for the last stage. Due to the highmobility of naval forces that can be easily moved from theatre totheatre, naval arms control is ideally accomplished on a globalbasis; but owing to difficulty of global process, regional navalarms control in the Asia–Pacific might be encouraged to take thelead.

The establishment of maritime CBMs is an important part ofmaritime security cooperation. This is an effective step to reducethe risks of maritime conflicts and misunderstanding of maritimeactivities at sea. The underwater environment is particularlyopaque, and underwater operations are particularly subject touncertainty, confusion, loss of control, accidents and inadvertentescalation. Maritime CBMs exactly meet the requirements.

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The ARF Concept Paper has well specified both maritimeCBMs and maritime cooperation measures. The former includemaritime information databases; cooperative approaches to SLOC,beginning with exchanges of information and training in suchareas as search and rescue, piracy and drug control; mechanismsto mobilise relief assistance in the event of natural disasters; andthe establishment of zones of cooperation in areas such as theSouth China Sea. The latter include ‘a multilateral agreement onthe avoidance of naval incidents that apply to both local andexternal navies’, and various mechanisms involving ‘oceans gov-ernance’ (for example, conventions on the marine environment,joint marine scientific research, a regional sea level/climatemonitoring system, search and rescue measures and maritimesurveillance).5 It is time now for the relevant countries to takeactions based on the Concept Paper.

In view of the present conditions, the following four regimesmight be built first in the long-term process of maritime cooper-ation:

1 The first would be a regional maritime surveillance and safetyregime. This would be useful in peacetime for enhancingmaritime safety along the busy shipping routes in the area.

It is unlikely that, at least in the first instance, any regionalcountry would agree to the regime extending into sovereignwaters. This may be possible in the longer term as countriesdevelop joint operating procedures and gain confidence in theregion. But in the shorter term, countries should at leastperceive benefit in the regime providing data to nationalsurveillance centers on the movements of vessels entering andleaving archipelagic waters and territorial seas.6

2 The second would be a regional avoidance of incidents at seaagreement (INCSEA). The 1972 agreement between the UnitedStates and the Soviet Union to prevent incidents on and overthe high seas is an excellent example of a practical maritimeCBM. A review of that agreement has identified several reasonsfor its success: mutuality of interest; involvement of profes-sional naval officers; consistency with agreed customaryinternational law; a working and workable agreement; and abilateral forum. More recently Russia has signed INCSEAswith Japan and South Korea, creating conditions for a regionalINCSEA.

3 The third would be a regional LOSC application regime. Itmight include a unified interpretation of the LOSC stipulations,and suggestions on amendments and supplements to be madein LOSC for reducing ambiguity and conflicts.

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Conventional international law, in the form of the 1982UNCLOS [UN Conference on the Law of the Sea], customaryinternational law, and judicial decisions have all failed to comeup with an acceptable set of criteria which express normativedistinctions between the different justifications utilised by statesfor the breadths of their claims. The uncertain nature ofrelevant norms has permitted wide discrepancies to emergebetween claims and counterclaims.7

Thus discussions on these relevant norms and on an acceptableset of criteria are much needed for confidence-building andconflict resolution.

4 The fourth would be a regional environmental security regime.Opportunities do exist for environmental issues to be the focusof confidence-building and cooperation. Of special note is theopportunity for regional cooperation in oil pollution preven-tion and emergency response, in control and monitoring ofvessel source pollution.

Determining those military facilities that contribute to theproduction of toxic wastes, air and water pollutants, as well assolid wastes in the region may also be another usefulcooperative exercise.8

Maritime cooperation mechanism

Given the fact that economic development has been the toppriority of Asian–Pacific countries and that maritime issues are atthe forefront of regional security concerns, the increase of regionalmaritime cooperation would be well appreciated by regional coun-tries. LOSC establishes in general terms the regime for managingthe oceans and seas of the world, and Agenda 21 further containsthe broad agenda for the sustainable development of the coastaland oceans environments of the world. They serve as guidelinesfor Asian–Pacific countries to follow in oceans governance. How-ever, Asian–Pacific countries have to adapt them to the regionalconditions, and to concretise them in the implementation. Forexample, ‘Despite the general acceptance of the EEZ concept, thereexisted the potential for much debate as to how the regime shouldactually operate’.9

At present, some forms of maritime cooperation, mainly bilat-eral and sub-regional, have existed in the region, such as the1979/90 Malaysia–Thailand Joint Development Agreement, the1989 Australia–Indonesia Timor Gap Zone of Cooperation Treatyand the 1992 Malaysia–Vietnam Memorandum of Understanding.Besides these are the Indonesia-initiated Workshops on Managing

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Potential Conflict in the South China Sea; the Western PacificNaval Symposium, a biennial conference initiated by the RoyalAustralian Navy in 1988; and the February 1995 Indian-sponsorednaval meeting of ships and leaders from both the Indian Oceanand Southeast Asia. The trilateral security dialogue among Japan,the US, and Russia since 1994, and the first non-governmentalsecurity dialogue among Japan, the US and China in mid-July1998 in Tokyo may also involve the maritime dimension. But onthe whole, they are scattered and fragmentary with limited effects,and have not formed an organic mechanism.

Notable progress in CBMs has been made over the past decadein the Asian–Pacific region.

The ARF has been established and has endorsed a schedule forimplementation of a wide variety of CSBMs; and a second-trackprocess, of which CSCAP [Council for Security Cooperation in theAsia–Pacific] is the premier institution, has been developed tosupport the ARF.10

With these developments, the Asian–Pacific countries need toembark on the building of a regional maritime cooperation mech-anism based on the present CSCAP Working Group on MaritimeCooperation.

This new maritime cooperation mechanism would deal withall the major issues in oceans governance, which include marineresource exploitation and management, SLOC security, maritimeboundary delimitation and dispute resolution, marine environmentprotection and other maritime CBMs. Certainly it would nottackle all the issues at the same time. It would handle the easyones first, then go on to the difficult ones. It should work outplans for the short, medium and long terms. It is evident thatcooperation would be more easily agreed upon in relation to thejoint exploitation of shared natural resources than in cases ofdisputed offshore territories. The mechanism would coordinate allthe bilateral and sub-regional activities in the region, and wouldtry to bring them into line with its overall plan.

At present there exist two regional organisations, ARF andAPEC. The regional maritime cooperation mechanism might fallwithin the framework of one of the two organisations. But ARFand APEC have to reform and restructure themselves first so asto become more efficient institutions.

The ARF, built on the style of ASEAN, works on a consensusbasis; and APEC emphasises the unbinding nature of its decisions.They have worked fine in the past, but now faced with thefinancial crisis in Asia, they have done nothing and have provedto be inefficient. Their credibility has greatly been affected. To

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improve the situation, they need to undergo fundamental changesin the decision-making and decision implementation process.

In spite of the problems existing in ARF and APEC, it ismeaningless and unfeasible for the maritime cooperation mecha-nism to be independent. These two organisations have existed foryears, and a series of functional mechanisms have been in placeto support them. What’s more, they have successfully broughttogether regional leaders. Their problem is reform and readjust-ment. To enlarge their functions and mechanisms is comparativelyeasy.

China’s positive attitude

China has important maritime interests. It has a total coastline of18 400 kilometres, some 6500 coastal islands, and possibly morethan 3 million square kilometres of maritime jurisdictional zones.China’s maritime jurisdictional zones are estimated to encompass20 billion tonnes of oil reserves and 2.9 trillion cubic metres ofnatural gas, constituting 20 per cent of the country’s total oil andgas resources. Besides, they encompass 0.44 billion tonnes ofoffshore mineral deposits, 1 billion kilowatts of marine energyreserves and an annual turnout of 5 million tonnes of fisheryproducts.

Having realised the importance of oceans to its sustainabledevelopment, China is developing a national strategy for oceanmanagement. There was no overall plan to develop the country’soceans in the past, but with the acceleration of the exploitation ofocean resources in recent years, a plan has been worked out,emphasising the investigations of ocean resources and conservationof marine surroundings. The output value of China’s maritime andoceanic products industry is expected to increase to 10 per cent ofthe country’s gross domestic product by 2010 from 4 per centrecorded in 1996. Many provinces and municipalities have set upspecial agencies in charge of ocean management.

China is improving its oceanic legislation. China will developits oceans in accordance with LOSC, which it formally ratified in1996. ‘A draft of the State law to manage the country’s exclusiveeconomic zones and continental shelves has been presented to theNational People’s Congress for examination and approval.’11 Thestate law on protecting oceanic environment adopted 16 years agowill be revised to meet present requirements.

A second national survey on the basic environmental qualityof China’s oceans is under way. Survey results will become thefoundation for the state to draft policies to abate the deteriorating

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oceanic environment in the next century. In the 1970s, China dida similar survey. However, the situation has changed rapidly sincethen. The environmental quality of sea areas near coastal cities,river mouths and bays has been degrading year by year. Accordingto the statistics by the Chinese Oceanic Administration, there are217 major sources of waste water dumping on the coast, and some8.6 billion tonnes of untreated waste water annually flows intothe sea from these outlets.

Cooperation with other countries for ocean management andmaritime security accords with China’s national interests, and theestablishment of a regional maritime cooperation mechanismwould naturally win China’s support. China’s position is that itis the shared goal and mission of all Asian–Pacific countries topromote regional maritime security, and that regional maritimecooperation arrangements are the most effective and the leastexpensive means to defend national interests.

China and the US signed, on 19 January 1998 during USSecretary of Defence William Cohen’s visit to China, an agreementon the establishment of a consultation mechanism to strengthenmaritime safety. Both sides have agreed to adopt a modest,step-by-step approach to establishing mechanisms to increaseconfidence and reduce misunderstandings. This illustrates China’spositive attitude towards security cooperation with others.

As President Jiang Zemin says, China has attached greatsignificance to and taken an active part in East Asian cooperation.In respect to the first informal China–ASEAN Summit, whereChina and ASEAN have agreed to establish a good-neighbourlypartnership of mutual trust oriented towards the twenty-firstcentury, he suggested it should

make the best use of the existing mechanism of all-round dialogueand cooperation between China and ASEAN to broaden ourexchanges and cooperation in all areas, at all levels and through allchannels, and strengthen the exchanges and contacts betweenleaders and people from all walks of life of our two sides toenhance our mutual trust, expand common ground and promotefriendship.12

What he says reflects China’s sincerity and enthusiasm in partic-ipating in regional cooperation, including maritime cooperation.

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7 Regional cooperation formarine environmental andresources managementKilifoti S. Eteuati

REGIONAL COOPERATION

The Pacific region, the focus for this chapter, is an ocean region.The 22 countries and territories of Melanesia (West), Polynesia(South and East), and Micronesia (North) which make up thisregion are spread out over an area in excess of 30 million squarekilometres, of which 98 per cent is covered by the waters of thePacific Ocean. It is also a region of extreme diversity in landforms, populations, cultures, politics and economics. Of the totalland area amounting to a little over half a million squarekilometres, Papua New Guinea accounts for 84 per cent whilefour countries (Nauru, Tuvalu, Tokelau and Pitcairn) are eachsmaller than 30 square kilometres.

The high rugged mountainous islands of Papua New Guinea,New Caledonia, Solomon Islands, Vanuatu, Fiji and Samoa arecontrasted by 15 of the countries and territories which are madeup wholly or largely of tiny, highly vulnerable low-lying atolls andcoral islands. Except for Nauru with onshore mineral deposits, allthe atoll countries depend almost exclusively on the sea for theirexistence.

The total population of the region, estimated at 7 million for1998, ranges from Papua New Guinea with 4.5 million people,to Pitcairn with under 60 people. On the population growth scale,the population of the Commonwealth of Northern MarianaIslands has been growing annually at 5.6 per cent in recent years,while Niue on the other extreme has been losing people throughmigration at the rate of 2.4 per cent annually.

Politically, 14 countries are constitutionally independent while

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the remaining eight are territories of the United States (three),France (three), and the United Kingdom and New Zealand withone each.

The Pacific region lends itself to regional cooperation. Andnowhere has regional cooperation been better utilised and moresuccessful in this region than in the management of the marineenvironment and resources.

All the principal regional organisations—the South PacificForum, the Pacific Community (formerly the South Pacific Com-mission), the Forum Fisheries Agency (FFA), the South PacificApplied Geoscience Commission, and the South Pacific RegionalEnvironment Program (SPREP)—deal with some important aspectof marine environmental and resources management.

The South Pacific Forum (the Forum), established in 1971, isthe foremost political grouping in the region, being made up ofthe political leaders of the 14 constitutionally independent PacificIsland countries as well as Australia and New Zealand. Forumendorsement of a program or a proposal is a guarantee of prioritytreatment in the Pacific region.

Following the dramatic developments relating to the estab-lishment of the 200 nautical mile exclusive economic zones (EEZs)in the negotiations at the third UN Conference on the Law of theSea which started in late 1973, the Forum in 1976 embraced theEEZ concept and formally resolved that Forum member countrieswould cooperate and harmonise their fisheries policies and adopta coordinated approach towards access negotiations with distantwater fishing nations. In making this decision the Forum quicklyrecognised that the effective implementation of this decisionand the overall necessary promotion of the conservation andrational utilisation of fish stocks in the region would require amassive effort in building up an extensive base of information andknowledge about the marine living resources and the marineenvironment in the Pacific region.

At its 1977 meeting, the Forum established the FFA to under-take this task. The mandate of the FFA was to collect, analyseand distribute statistical and biological data on the living resourcesof the region, especially the highly migratory species; to collectinformation on the management procedures, legislation, and agree-ments on fisheries resources adopted by governments both withinand outside the region; and to inform, advise and assist membercountries in their development of fisheries policies, drafting oflegislation, negotiation of agreements, authorisation of licences,collection of fees, and in matters relating to surveillance andenforcement.

The FFA convention restricted the FFA membership essentially

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to members of the Forum, but it recognised that ‘effective coop-eration for the conservation and optimal utilisation of the highlymigratory species in the region will require the establishment ofadditional machinery to provide for cooperation between allcoastal states in the region and all states involved in the harvestingof such resources’. This provision was aimed to accommodate therequirements of Article 64 of the Convention on the Law of theSea 1982. It was necessary for the Forum to adopt this approachbecause in 1977 they needed to move urgently on this issue, butsome important distant water fishing nations were not preparedto recognise the rights of the coastal states over highly migratoryspecies in their exclusive economic zones.

At the moment, one of the most important developments inthe region has been the ongoing negotiations which started in1994 between the Pacific region coastal states and the distantwater fishing nations to develop an appropriate regionalmachinery for the conservation and management of highly migra-tory fish stocks in the Western and Central Pacific.

The FFA has been highly successful in fulfilling its mandateand its success has resulted in the adoption by the other oceanregions of the world of the Pacific regional cooperative approachin the management of ocean living resources.

Perhaps the most spectacular success of the FFA group was theconclusion in 1987 of the unique multilateral fisheries treatybetween the 16 FFA member governments and the government ofthe United States. The United States fishing fleet has been catchinglarge quantities of tuna under the high seas regime which gavethem the freedom to fish as they wished. A non-signatory to the1982 Law of the Sea Convention at the time, the United Statesrefused to recognise that coastal states have sovereign rights overhighly migratory fish in their economic zones. This situation ledto dramatic confrontations which included the capture of Ameri-can fishing boats by the South Pacific surveillance and enforcementunits.

For three years the 16 FFA countries, with their widely diversebackgrounds and national interests, stood solidly together andnegotiated as a group with the US Government until a treaty wassuccessfully concluded. The treaty allowed a certain number ofUS-registered purse seiners to fish for the highly migratory tunain the exclusive economic zones of the Pacific Island countries fora significant licence fee, which is divided among the FFA membercountries according to a formula which they have negotiatedamongst themselves.

The treaty specifically recognises the heavy dependence by thePacific Island countries on marine resources and the importance

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of the sustainable development of these resources. The strongmanagement provisions in the treaty clearly reflect this concern.Some of the measures included in this treaty to protect the rightsand interests of the Pacific Island parties were: limitation on thenumber of licensed vessels; designation of closed areas and limitedareas to fishing; strict reporting requirements on vessel location,catch location and catch size; regulation of fishing seasons; andthe placement on the fishing vessels of trained observers from theFFA countries. Significantly, the US Government agreed to a treatyobligation for it to be ultimately responsible for ensuring that theUS fishermen abide by the provisions of the treaty. The US hasnot entered into a similar treaty elsewhere in the world.

Since 1987, the parties have refined and improved the imple-mentation of the provisions of this treaty, which has resulted inbetter compliance and greatly increased licence fees.

The negotiation of this treaty presented the most difficultchallenge to regional cooperation in the Pacific region. The FFAmember countries with extensive economic zones in the WesternPacific possessed some of the richest tuna fishing grounds in theworld, while the countries to the east, even those with largeeconomic zones, have relatively poor fishing areas. The Americanfishermen made some very lucrative offers to the FFA members inthe west to negotiate bilateral fishery agreements. The nationalinterests of these countries clearly pointed to the desirability ofentering into bilateral fishery agreements and, understandably,their senior officials and advisers gave these proposals seriousconsideration. This resulted in many tense and prolonged discus-sions among the FFA member countries during the treatynegotiations. At times, certain contentious issues had to bereferred to the Pacific political leaders and at this level thecommitment to regional cooperation, certainly in marine affairs,never wavered.

The ongoing negotiations with the distant water fishing nationson the conservation and management of highly migratory fishstocks in the Western and Central Pacific is a crucial one for thePacific Island countries. These negotiations will again testthe strength of regional cooperation as vital national interests areweighed up against regional solidarity. The high-level conferenceon this issue held in Majuro on the Marshall Islands in June 1997decided in the Majuro Declaration to work towards the estab-lishment of an effective mechanism for the conservation andmanagement of highly migratory fish stocks of the region inaccordance with the Law of the Sea Convention 1982 and theImplementing Agreement of 1994. It also decided on an overalltime frame of three years from June 1997 in which to negotiate

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and establish this mechanism. The Forum meeting in Rarotongain September 1997 endorsed the Majuro Declaration, which meansthat this matter has now become a top priority for the Pacificnations and for FFA.

The 1977 Forum meeting, in considering the marine resourcesissue, accepted that any discussion on resources must necessarilyinclude the environment and vice versa. So, in addition to theestablishment of the FFA, the 1977 Forum meeting also resolvedthat ‘South Pacific countries will more effectively manage theirunique South Pacific environment by the adoption of commonapproaches and standards to development planning and environ-ment conservation and by strong regional cooperation’. Themeeting directed the Forum secretariat to take active steps toestablish a regional environmental body in conjunction with theSouth Pacific Commission, which had already undertaken severalregional initiatives in environmental management in the Pacific.SPREP was established within the South Pacific Commission in1980, and its headquarters was relocated to Apia, Samoa in late1991 after its member countries decided to upgrade it to be anindependent regional organisation.

SPREP’s first major task was the coordination of the prepara-tions for the Conference on the Human Environment in the SouthPacific which was held in Rarotonga in 1982. This was the firstmajor international conference on the South Pacific environmentand it brought the resources of the United Nations EnvironmentProgram as well as those of the International Union for theConservation of Nature to bear on the environmental issues ofthis region, in conjunction with the environmental ministers andsenior officials from the Pacific countries. This conference adoptedtwo important documents, the South Pacific Declaration on Nat-ural Resources and the Environment, and the Action Plan forManaging the Natural Resources and the Environment of theSouth Pacific Region. The Declaration emphasised the importanceof sustained and integrated environmental, economic, social andresource planning and management. It stressed the need for aneffective program of public information, education and trainingin skills related to environmental management, and proposed theestablishment of legal instruments and institutional arrangementsfor the effective implementation of environmental policies.

Following the Rarotonga conference, SPREP (with the assis-tance of the United Nations Environment Program’s Regional SeasProgram) was directed by the South Pacific Conference, the gov-erning body of the South Pacific Commission, and with theendorsement of the Forum, to organise the 27 SPREP membergovernments to negotiate and establish a South Pacific Environ-

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mental Convention similar to those which have been concluded inother designated ocean regions around the world.

After four years of negotiation, in November 1986 the coun-tries of the region adopted: the Convention for the Protection ofthe Natural Resources and Environment of the South PacificRegion; the Protocol Concerning Cooperation in Combating Pol-lution Emergencies in the South Pacific Region; and the Protocolfor the Prevention of Pollution of the South Pacific Region byDumping. This is the SPREP Convention and it came into forcein August 1990.

The convention is an umbrella agreement for the protectionand management of the natural resources and the marine environ-ment of the South Pacific. The convention area covers the 200 nmEEZs of the 27 member countries in the region as well as theareas of the high seas which are completely enclosed by the mem-bers’ EEZs. The major environmental significance of wiselymanaging the marine resources in the region is reflected by theinclusion of ‘natural resources’ in the title of the convention,something which does not occur in similar conventions for otheroceanic regions.

The convention is exceptional furthermore because it containsan agreement by the parties, which included France and the UnitedStates, ‘to prohibit the dumping of radioactive wastes or otherradioactive matter in the Convention area’, and the parties alsoagreed ‘to prohibit the disposal into the seabed and subsoil ofthe Convention area of radioactive wastes and other radioactivematter’.

The convention lists the sources of pollution which need to becontrolled: vessels, land-based sources, seabed activities, dis-charges into the atmosphere, waste disposal, toxic and hazardouswaste storage, testing of nuclear devices, mining and coastalerosion.

It also lists the environmental management measures whichrequire regional cooperation: the protection of fragile ecosystemsand their wild flora and fauna, pollution abatement in cases ofemergency, environmental impact assessment, scientific and tech-nical cooperation, technical assistance, information sharing, andliability and compensation for damage from pollution in theconvention area.

Global warming, leading to climatic changes especially sea levelrise, constitutes one of the most serious threats to the Pacificregion and the survival of some island states. This issue thereforecontinues to be a major component in SPREP’s current ActionPlan 1997–2000, under the Climate Change and IntegratedCoastal Management Program. The principal project under this

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program is designed to strengthen the capacities of the participat-ing (most vulnerable) countries, in terms of training, institutionalstrengthening and planning activities, to enable them to meet theirreporting obligations under the United Nations FrameworkConvention on Climate Change. The project has six majorcapacity-building objectives which lead to these outputs:

• an inventory of greenhouse gas sources and sinks;• an evaluation of mitigation options;• national vulnerability assessments;• an evaluation of adaptation options;• a national implementation plan; and• the first national communication to the conference of the

parties to the United Nations Framework Convention on Cli-mate Change.

This SPREP-coordinated project is funded by the Global En-vironment Facility through the United Nations DevelopmentProgram.

The Pacific Island countries have warmly welcomed this project(it has been endorsed by the Forum) and it is recognised as themost constructive regional response to a most serious threat tothe survival of the whole land mass of states containing societieswith distinct and unique cultures.

The other regional agreements on the protection of the marineenvironment and resources management which need mentioninghere are the South Pacific Nuclear Free Zone Treaty 1985, andthe Convention on the Prohibition of Fishing with Long Driftnetsin the South Pacific of 1989.

Finally, I would like to refer to a development in the area ofregional security cooperation in the Pacific region which is boundto have a major impact on the marine environment and resourcesmanagement. The Forum Honiara Declaration on Law andEnforcement Cooperation in 1992 was aimed specifically at deal-ing with drugs and money-laundering in the region. This has nowbeen expanded to include environmental and resource damage. Inthe Aitutaki Declaration on regional security cooperation in 1997,the Forum leaders stated:

The Forum recognised the region’s vulnerability to natural disasters,environmental damage and unlawful challenges to national integrityand independence, and reaffirmed its commitment to take acomprehensive, integrated and collaborative approach tomaintaining and strengthening current mechanisms for cooperationamong members in dealing with threats to the security, broadlydefined, of states in the region and of the region as a whole.

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The project, with people on the ground at the Forum Secre-tariat in Suva to coordinate the law enforcement cooperation overdrugs and money-laundering in the region, started in January1999. The implementation of this broader mandate will not befar behind.

The Pacific region has been an outstanding example of effectiveregional cooperation, particularly in the area of marine affairs,and that cooperation is growing stronger—particularly now thatthe Forum has decided to bring the policing of the Pacific envi-ronment and its resources under its direct supervision.

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8 Regional naval cooperation

Chris OxenbouldREGIONAL NAVAL COOPERATION

The proceedings on which this book is based come at a veryopportune time as the Australian Defence Force (ADF), and moreparticularly the Royal Australian Navy (RAN), learn to work inthe post–Defence Reform Program environment. That is because,in the midst of reorganisation, restructuring and accompanyinguncertainties, we have not lost sight of the fact that Australia’sgeographic and strategic situation has not changed. This geo-graphic and strategic situation is inextricably tied to the maritimeenvironment.

The 1997 paper Australia’s Strategic Policy (ASP)1 explicitlystated: ‘The fundamental strategic outcome the Government seeksis to prevent armed attack or coercion against Australia’. Anysuch attack would have to come through the maritime environ-ment and would have to be repelled in that environment if wehoped to deny an adversary taking the initiative and gaining accessto Australian territory. ASP further reiterated the importance ofour helping to avoid destabilising strategic competition betweenthe region’s major powers and helping to maintain a benignsecurity environment in maritime Southeast Asia.

With such key strategic interests in mind, the RAN recognisesthat issues of oceans management and governance are vital toAustralian strategic and economic interests—ours is manifestly amaritime nation:

• We are an island continent with one of the longest coastlines

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in the world—a maritime nation in an increasingly maritimeregion.

• As an island continent we are heavily dependent on seabornetrade.

• Any would-be aggressor must approach Australian shores fromacross the maritime environment.

In combination with these factors, we live in a region of almostunparalleled maritime complexity,

• with some of the busiest shipping routes in the world,• a number of vital choke points,• numerous disputed boundary claims,• two of the world’s major archipelagos, and• very small nation states with huge exclusive economic zones

(EEZs).

Regional economic growth, albeit temporarily halted, hasbrought with it a quantum leap forward in both the range anddepth of regional maritime interests. In recent years there has beena marked transfer from subsistence extraction of local livingresources to the complex and technologically advanced stages ofinternational resource awareness. Such development parallels atransfer in focus from internal security to security of substantialmaritime interests and regional security.

ASP acknowledged the complexity of such development in theAsia–Pacific region and reiterated the importance of Australia’scontribution to regional stability and security. It rightly assertedthat we cannot expect to be secure in an insecure region and itestablished a definite raison d’être for regional maritime cooper-ation. Australia’s position and regard in the region largely dependsupon us being a reliable and friendly neighbour and a responsibleinternational and regional citizen.

With this in mind, there are three fundamental reasons whythe RAN actively fosters maritime cooperation:

• It helps build trust and understanding between maritime forces.• Cooperative structures can be used to maintain communica-

tions when tensions rise.• Cooperation can help create an environment where maritime

forces can combine to do real work and achieve a level ofinteroperability, which contributes to the security of the regionand an understanding between forces.

Interoperability is in fact vital to the Australian situation. Ifwe are to defend Australia’s assets and defend our regionalinterests we must be able to successfully operate in the maritime

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environment with our allies, close friends and neighbours. Theissue of interoperability directly impinges on the level of cooper-ation we can realistically sustain with various forces throughoutthe region. However, regardless of the level of capability, there aremany ways in which we cooperate very successfully with nationsin Southeast Asia, Southwest Pacific, and Northeast Asia.

Southeast Asia

Australia has a long history of maritime engagement with South-east Asia. Certainly our level of involvement in the region iscentred on the Association of South East Asian Nations (ASEAN)nations to our north. This is not to say that the RAN does notvalue interaction with the smaller nations in the region, only thatthe ASEAN nations have formed a traditional element of Aus-tralian Government policy of involvement that stems back to thepost–Second World War period.

The relationship between Australia and Southeast Asian coun-tries has evolved from the Five Power Defence Arrangement(FPDA) to being more one of equal partnerships and sharedinterests. Obviously our levels of interaction vary but the type ofcooperation the RAN engages with in this region includes:

• High level visits.• The exchange of strategic perceptions using such tools as

navy-to-navy Talks which allow for close, personal interactionbetween the RAN and other regional and non-regional navies.

• Exercises of increasing complexity.• Personnel exchanges and attachments—at all levels. For exam-

ple, there was an Australian midshipman on the IndonesianTall Ship when it recently visited Hobart and there are regularstaff course exchanges.

• Personnel training in a range of disciplines. We always try tooffer training where there is commonality and mutual benefit.

Cooperation between the RAN and the nations of SoutheastAsia is usually either bilateral or conducted under the auspices ofFPDA. Australia also makes an effective contribution to regionalresilience through exercises conducted under bilateral arrange-ments with Indonesia, Singapore, Thailand, Brunei, thePhilippines, Papua New Guinea and New Zealand.

One notable exception to bilateral operations is Fleet Concen-tration Period (FCP) Kakadu which involves both navy and airforce components. In 1997 the Concentration Period involvedunits or observers from Brunei, Indonesia, Malaysia, New Zea-

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land, the Philippines, Singapore and Thailand. The regional aimsof enhancing interoperability and improving cultural awarenesswere successfully met during the Concentration Period through aneffective observer program, the rotation of command duties andmaximum participation in a range of social and cultural activities.

Kakadu provides the ADF with an opportunity to foster andfurther the personal contact we have with the navies of regionalnations. However, while Kakadu has proved very successful, it is butone aspect of our cooperative relationship with regional countries.

When considering interaction and interoperability betweenAustralian and regional forces, we aim to match the rate of effortwith which a particular country is comfortable. Such an approachensures mutual benefits are maximised.

Within Southeast Asia our navy-to-navy relationship withMalaysia has always been close, despite the vagaries of the polit-ical situation. However, the RAN recognises the need to continueclosely nurturing personal contacts with the Royal MalaysianNavy and to respect the cultural differences between our twocountries. We conduct maritime patrols from Malaysia to theSouth China Sea and Indian Ocean, excluding areas under dispute.

Similarly, our navy relationship with Indonesia has developedsteadily over recent years until we are at a point where there isa real exchange of training, personnel and information in theplanning and conduct of exercises and operations. The JointDevelopment Zone in the Timor Gap provides an operationalfocus for our relationship that builds on exercises such as ExerciseCassowary—conducted twice a year, and once in the Timor Gap.Within the area of joint development, we also conduct jointpatrols, share information, coordinate security arrangements andcooperate in search and rescue on an opportunity basis.

Clearly, our activities with Indonesia will depend on futureevents in that nation. Nevertheless, whatever the outcome, we arekeen to build on the current relationship.

Further to these operations, both the RAN and IndonesianNavy (TNI-AL) are keen to progress discussions aimed at increas-ing hydrographic and oceanographic cooperation between ournavies. At this stage it is intended that the main areas of cooper-ation will centre around:

• on the job training,• cooperative hydrographic surveys, and• support for the TNI-AL Hydrographic School.

Because the Indonesians prefer extensive planning and pre-exercise preparation, our personal contacts and mutual under-standing have continued to develop. There is now a direct

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communication link between Australia’s Northern Command andIndonesia’s Eastern Fleet and we conduct two Ausina exercises andExercise New Horizon with the TNI-AL each year. As with Malaysia,the success of our relationship with Indonesia relies on the develop-ment and maintenance of personal contacts and on our understandingand appreciation of the cultural differences which exist between us.

At recent TNI-AL/RAN navy-to-navy talks, we discussed ourintention to develop a regional mine warfare officers course, tobe made available to the Indonesian, Malaysian, Singaporean, Thaiand Philippines navies. The first course was conducted in early1999. On completion of the course, a workshop was held todiscuss regional mine countermeasures (MCM) cooperation,involving the course students and two representatives from eachof the participating navies from naval and MCM headquarters.The TNI-AL sent two officers to the course, while allowing oneof their officers to assist with the development of the mine warfarecourse.

While the Singaporean Navy is relatively young, it is perhapsthe regional navy which has most actively embraced technology.On a bilateral basis we conduct Exercise Singaroo—involvingsurface combatants; Exercise Hunter involving MCM forces; andan annual clearance diving exercise—Axolotl—with the RoyalSingapore Navy. We also conduct an MCM exchange with them,the first exchange program Singapore has entered into.

Our interaction with the Thai Navy is well developed. Weconduct an annual, single-focus Australia–Thailand naval exercisecalled AUSTHAI and the Royal Thai Navy (RTN) participates inKakadu. The focus of the RAN’s interaction with the RTN is toprovide assistance with the development of standard operatingprocedures, which are then exercised in RAN and RTN units. Asboth our navies move towards acquiring more technologicallyadvanced units, our relationship is likely to revolve more aroundtraining.

With Brunei our relationship is continuing to develop. Alongwith training some of their officers, we also conduct an annualpatrol boat exercise and, as I have mentioned, the Brunei Navysent observers to FCP Kakadu in 1997. Hopefully, their involve-ment in the FCP will extend in future to active participation inthe sea phase.

Southwest Pacific

The RAN also has a long operational history in the SouthwestPacific. However, there is a major difference between Australia’s

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defence relations with Southwest Pacific countries and those withSoutheast Asian nations: there are no formal defence arrangementsequivalent to the FPDA. This has led to the formation of bilateralarrangements for defence cooperation in which the RAN plays acentral role.

The key Australian Government initiative in this region hasbeen the Pacific Patrol Boat Project, providing patrol craft tonavies and police forces in the region to our east and northeast.Australian involvement with the project occurs under the auspicesof providing smaller island nations with a means by which topolice vital fisheries stocks within their EEZs. The boats arespecifically designed for fisheries surveillance, sovereignty protec-tion, search and rescue and disaster relief. A vital part of theproject is extensive support by the RAN for initial and operationaltraining of personnel and in-country support through a networkof liaison officers, technical assistants and exercises with visitingAustralian patrol boats.

While our cooperative efforts with Papua New Guinea (PNG)are very similar to those we share with countries in SoutheastAsia, our relationship with other countries in the Southwest Pacifichas a slightly different focus.

In addition to the Pacific Patrol Boat Project, training providesthe majority of cooperative interaction between nations of theSouthwest Pacific and the RAN. While much of the traininginvolved is conducted at the Maritime College in Launceston, onbehalf of the RAN, some ADF and RAN training is conducted inareas such as clearance diving, engineering and logistics support.

Exercise Paradise is possibly the largest exercise conducted aspart of our cooperation effort in this region. Conducted withPNG, the exercise is essentially a patrol boat exercise with someoccasional landing craft involvement. It is typical of the level ofinteraction shared between the RAN and PNG Defence Forcemaritime element.

Naval cooperative measures in the South Pacific tend to centreon sovereignty concerns and the patrolling of the vast EEZs inthe region. The introduction of the Niue Treaty on Cooperationin Fisheries Surveillance and Law Enforcement has further devel-oped cooperative measures in the region. This important treatywas developed by the Honiara-based Forum Fisheries Agency inrecognition of the need to protect the important fisheries resourcesof the South Pacific and sets in place an agreement wherebynations, on a bilateral basis, are able to arrest illegals in anothernation’s waters. The Niue Treaty is a ground-breaking and uniquevehicle for maritime cooperation. The treaty’s success indicatesthe extent to which maritime cooperation measures can be

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implemented to the benefit of all involved. Opened for signatureat the 23rd South Pacific Forum in 1992, to date 14 Forumcountries have signed while four have ratified the treaty.

The level of defence cooperation we enjoy with New Zealandis designed to benefit the armed forces of both countries, and toenhance the capabilities we each possess. Like us, New Zealandis a maritime nation and like us it too is heavily dependent onseaborne trade and recognises the importance of the maritimeenvironment to defence. A traditionally close relationship hasmatured since World War I, the RAN and Royal New ZealandNavy regularly participating in exercises, ship visits and trainingprograms and exchanges.

Northeast Asia

Our cooperative relationship with countries in Northeast Asia isgradually evolving as we acknowledge the strategic importance ofthe region and seek to enhance contact between our naval forces.

Relations with China received a boost with the visit of Aus-tralian fleet units to Qingdao in 1997. Similarly, our relationshipswith Japan and South Korea are evolving very positively.

Navy-to-navy talks are held with Japan and, in conjunctionwith similar talks held with Singapore and Indonesia, are doingmuch to further personal contacts between our navies and tofurther the mutual understanding that exists around the region.

Certainly, it is fair to say that our relationship with Japan isthe most well developed relationship we enjoy with any nation inNorth Asia. A recent manifestation of this is the introduction ofa passage exercise with our forces, which will be held every secondyear.

Western Pacific Naval Symposium

There is clearly a great deal of work being done on enhancingregional security through the development of mutual under-standing and interoperability in the region. One of the bestinitiatives in recent years has been the formation of the WesternPacific Naval Symposium (WPNS), a body which has been ableto progress some issues that would perhaps have been moreproblematic if dealt with in the ASEAN Regional Forum, forexample. The WPNS aims—to increase naval cooperation in theWestern Pacific by discussing both global and regional maritimeissues, and to generate a flow of information and opinion between

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naval professionals—have been very successfully met since itsinception in 1988.

Current WPNS initiatives include:

• The Maritime Information Exchange Directory (MIED)—designed to be used as a reference manual for ships deployedto, or transiting, the waters of other WPNS members. TheMIED contains information on those matters which requirereporting when a ship is observed in the waters of a WPNSmember. For example, such matters could include piracy, illegalfishing or marine pollution.

• A Replenishment at Sea Manual, which details ship’s layoutand replenishment procedures for each WPNS navy with a viewto eventually conducting replenishment at sea exercises.

• Establishing a set of procedures to guide unscheduled contactbetween naval forces.

• Regional MCM cooperation.

All such initiatives ensure the development of regional cooperationand interaction through relationships based on equality andmutual understanding. It is most important that the chiefs of navyget to know each other.

Possible avenues for enhanced cooperation

While regional naval cooperation has been significantly developedin recent times, there is always room for improvement. Thedevelopment of greater interoperability with our neighbours is oneof the RAN’s foremost priorities. We recognise that we have todo more warfighting exercises, for example conducting an MCMexercise with countries in the region, if we hope to increaseinteroperability on all levels. We will continue to train together,leading to greater mutual understanding and appreciation—a pro-cess to which FCP Kakadu is fundamental.

While we currently conduct joint patrols and maritime surveil-lance operations with Indonesia in the Joint Development Zonein the Timor Gap, there is room to explore ways in which ourinvolvement in these operations with other nations in the regioncan be increased.

The development of maritime patrol aircraft cooperation withASEAN air forces to interact with current naval cooperativemeasures would greatly enhance the overall maritime capabilityof all our maritime forces and focus cooperation measures at thebroader maritime (naval and air forces) level. While the submarineforces of countries in our immediate region are small, there exists

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the potential for interaction between the Collins Class and othersubmarine forces.

Expansion of the scope of exercises held between nations ofthe region is one area which will occupy planners in the years tocome. For example, the development of an MCM or amphibiouselement of FCP Kakadu is something which would provide foreven greater interoperability of a wider range of capabilities in aregion susceptible to mining in the event of a conflict. Similarly,the inclusion of a patrol craft component into the FCP will enableactive invitations to be extended to PNG, Brunei and the Philip-pines—thus ensuring maximum benefit from the activity.

The RAN recognises that the level of engagement must besuitably matched to the country or countries with which we aredealing. For example, naval interaction with PNG and the Philip-pines may be best kept at the patrol craft level rather thanescalating it to the destroyer level; thus adding an additional levelto FCP Kakadu would best serve the involvement of smaller navalforces such as these.

In a 1998 visit to New Zealand, Australian Minister forDefence Ian McLachlan stated his intention to investigate just howfar we can go in pooling efforts in areas such as training,education, logistics and industry support while retaining com-pletely separate forces. Clearly, the interoperability benefits of suchcomprehensive cooperation programs make them an attractiveprospect.

Conclusion

The RAN recognises the importance of regional naval engagementand cooperation in maintaining a secure and stable region. Assuch, we continue to actively seek and support cooperative oppor-tunities with other naval forces in the region. In many ways, ourlevel of regional engagement is simply an extension of the navy’smission to defend Australia and our interests. By helping to ensurethe continuation of friendly relations with our neighbours, we arehelping to ensure Australia’s security.

The already strong links we have developed with SoutheastAsian countries will continue to develop as we gain greaterinteroperability between our forces and learn to respect the dif-ferent cultures and traditions within the region. Similarly, the closerelationships we enjoy with nations in the Southwest Pacific willgrow as we work together to increase and ensure the security ofthis vast maritime area.

While we have only recently begun to develop our naval

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relationship with countries in Northeast Asia we will continue tofoster closer interaction, initially through ship visits and personnelexchanges. The scope for greater cooperation with the nations ofNortheast Asia certainly exists. In the interim, the ongoing devel-opment and fine-tuning of activities such as FCP Kakadu, ExerciseCassowary, New Horizon and Exercise Paradise, to mention buta few, will ensure greater interoperability and involvement withinthe region—something that can only enhance our own securityand that of the Asia–Pacific. All of these initiatives are comple-mentary to, and strongly supportive of, oceans governance andmaritime strategy.

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9 Maritime pollution

Rosalie BalkinMARITIME POLLUTION

Customary international law contains few rules directly relevantto the control of marine pollution. Two cases are sometimes citedto illustrate the existence of such rules. In the Corfu Channel Case(1949), we find the much quoted statement by the InternationalCourt of Justice to the effect that each state is under an obligationnot to knowingly allow its territory to be used for acts contraryof the rights of other states. In the Trail Smelter Arbitration(1938–41), an even earlier case involving damage to property inthe United States (US) caused by noxious fumes emitted by asmelter in Canada, the arbitral tribunal held that no state has theright to use or permit the use of its territory in such a manner asto cause injury by fumes in or to the territory of another state.

It is difficult, however, to adduce any particular standardsregarding the control of maritime pollution from these two cases,let alone find in them sufficient evidence of the necessary opiniojuris and state practice required for establishing settled rules ofcustomary international law. The Corfu Channel Case was not,as such, concerned with pollution damage but with other types ofharm resulting from the unauthorised mining of the channel. Inaddition, the statements issued by the court and the tribunalrespectively centred on the use of territory by states and theycannot be taken as establishing general principles of law applicableto acts beyond the territorial boundaries of a state. Accordingly,it is to the United Nations Law of the Sea Convention (LOSC)and other treaties that we must look to establish the legal basisfor control of pollution.

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The 1982 Law of the Sea Convention

Part XII of the LOSC sets out in some detail the current legalframework for the protection and preservation of the marineenvironment. Several features of this regime are especially notable.

First, there is an evident tension between the rights and obli-gations of coastal states and user states. On the one hand, theprinciple of freedom of navigation of user states is made subjectto the right of coastal states to take measures to preserve andprotect their environment. On the other hand, coastal states intaking these measures are required to operate within a strict legalframework so as to not unduly impinge on traditional rights ofpassage.

Second, the Convention lays emphasis on the duties of stateswith regard to the marine environment. Chapter XII opens witha statement of the general obligation imposed on states to protectand preserve the marine environment (Article 192). This sets thetone for the entire chapter. Other, more detailed rules follow.

Third, it is clear that, while coastal states have a large measureof flexibility with regard to their powers to legislate to protecttheir coastlines, they do not have the same flexibility with regardto enforcement where foreign-registered vessels are suspected ofhaving broken their laws. Enforcement powers in the Conventiondepend to a great extent on the seriousness of the damage andwhether it was caused wilfully.

Fourth, it is clear that, however detailed the rules set out inthe Convention may be, they are not of themselves adequate toprotect the marine environment. Rather they should be regardedas establishing the broad legal framework for environmental pro-tection. Other, more specialised treaty regimes fill in the detail.Some of these will be discussed below.

As far as the prescription of pollution standards is concerned,the LOSC reiterates the traditional competence of flag states toprescribe legislation for their vessels wherever they may be. Article211(2), however, goes beyond the traditional rule by furtherobliging flag states to adopt pollution regulations for their vesselswhich ‘at least have the same effect as that of generally acceptedinternational rules and standards established through the compe-tent international organisation or general diplomatic conference’.The reference in this article to ‘the competent internationalorganisation’ is taken to be a reference to the InternationalMaritime Organisation (IMO) which, since its inception half acentury ago, has actively promoted and facilitated the developmentand adoption of a range of international instruments regulatingvessel-sourced pollution.

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The wording of Article 211(2) presumably also means that,once an international instrument regulating marine pollution fromvessels gains general acceptance, flag states will be obliged toadopt and apply its provisions in respect of their own vessels.Arguably, this may in some cases oblige flag states (at least thosewhich are parties to the LOSC) to prescribe for their vessels(through national legislation) the provisions of maritime pollutionconventions which have attracted general international acceptanceeven though the flag state may not itself have become a party.

The LOSC also regulates the legislative competence of coastalstates. The extent of this competence varies depending upon theproposed reach of the legislation. In the territorial sea the coastalstate may prescribe pollution regulations for foreign vessels ininnocent passage (Article 21[1]), provided such regulations do not‘apply to the design, construction, manning or equipment offoreign ships unless they are giving effect to generally acceptedinternational rules or standards’ (Article 21[2]). Such regulationsmust be duly publicised, must be non-discriminatory and must nothamper the innocent passage of foreign vessels (Articles 21[3], 24,and 211[4]). Conversely, the Convention also provides that foreignvessels in innocent passage are obliged to have regard to theselaws and regulations (Article 21[4]).

With regard to the regime of transit passage through interna-tional straits, the coastal state’s legislative competence is morerestricted. Here pollution regulations may be adopted only if they‘give effect to applicable international regulations regarding thedischarge of oil, oily wastes and other noxious substances inthe strait’ (Article 42[1]). Again, such regulations must be non-discriminatory, must not hamper transit passage and must be dulypublicised by the strait state (Article 42[2], [3]).

Coastal states also have powers to legislate for marine pollu-tion from foreign vessels in the exclusive economic zones (EEZ).Under Article 211(5) of the LOSC a coastal state may adoptpollution legislation for its EEZ which conforms and gives effectto ‘generally accepted international rules and standards establishedthrough the competent international organisation or general dip-lomatic conference’. Where these rules are inadequate to providesufficient ecological protection for certain areas of the EEZ, thecoastal state may adopt regulations implementing internationalrules and standards or navigational practices which the IMO hasmade applicable to special areas, or it may adopt additionalregulations of its own, provided that these do not impose design,construction, manning or equipment standards on foreign vesselsother than generally accepted international rules and standards.In each case, however, special procedures are required: these

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include consultation with the IMO and obtaining its approval,and giving at least 15 months’ notice of entry into force of thecoastal state’s regulations (Article 211[6]).

The requirement that special procedures be adopted is aimedat maintaining a balance between coastal states which are able todemonstrate particular environmental needs and the preservationof traditional rights of navigation by user states. To date thespecial areas procedures have been utilised very sparingly. Aus-tralia was, however, successful in its attempt to have the GreatBarrier Reef declared a specially sensitive area and as a result alsopersuaded the IMO to adopt unique regulations for the protectionof the area, namely, the introduction of a compulsory pilotagescheme through the reef. These measures were implemented inAustralia through the Great Barrier Reef Marine Park Act.

On the question of enforcement jurisdiction, Article 217 of theLOSC provides that flag states must enforce violations of pollutionlaws applying to their ships wherever such violations are commit-ted. Enforcement action includes laying down penalties adequatein severity to discourage violations, prohibiting vessels from pro-ceeding to sea unless they comply with the requirements ofinternational rules and standards, ensuring that vessels carry thecertificates required by such rules, periodically inspecting vessels,and investigating alleged violations of the rules by flag vessels.On one reading, Article 92 of the LOSC, read in conjunction withArticle 58(2), indicates that the flag states’ jurisdiction over itsvessels possibly extends, at least in some cases, to arresting flagvessels even in the EEZ of a foreign state.

Enforcement by coastal states against foreign-registered vesselsis governed largely by Article 220 of the LOSC. Where a foreignvessel is suspected of having violated the coastal state’s anti-pol-lution legislation or applicable international rules relating topollution from ships during its passage through the territorial sea,the coastal state may undertake physical inspection of the vesseland, where the evidence so warrants, institute legal proceedings.

Where the pollution from the foreign vessel is ‘wilful andserious’, then the passage of that vessel is no longer innocent andthis gives the coastal state unrestricted enforcement jurisdiction.Arrest in a strait may only take place by a coastal state if theviolation causes or threatens ‘major damage to the marine envi-ronment of the strait’ (Article 233).

Where an alleged violation takes place in the EEZ, the coastalstate may require the offending vessel to give information regard-ing its identity and port of registry, its last and next port of call,and other information required to establish whether a violationhas occurred. Physical inspection by the coastal state of the vessel

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in the EEZ or territorial sea may take place where the allegedviolation in the EEZ has resulted ‘in the substantial dischargecausing or threatening significant pollution of the marine environ-ment’. However, the vessel may only be arrested where the allegedviolation has resulted ‘in a discharge causing major damage orthreat of major damage to the coastline or related interests of thecoastal State, or to any resources of its territorial sea or exclusiveeconomic zone’ (Article 220[3]–[8]).

Port states have greater powers. They may arrest and prosecutea vessel in one of its ports which is alleged to have violated thatstate’s pollution laws or applicable international rules in its ter-ritorial sea or EEZ (Article 220[1]). This provision mirrorscustomary international law. Article 218 extends customary inter-national law by enabling a port state to take legal proceedingswhere a vessel is alleged to have discharged polluting matterbeyond that state’s territorial sea or EEZ in violation of applicableinternational rules or standards.

Dumping of wastes at sea

The main instrument regulating the deliberate disposal at sea ofdredged material and land-generated waste is the Convention onthe Prevention of Marine Pollution by Dumping of Waste andOther Matter, 1972 (London Dumping Convention), whichentered into force in 1975 with 25 member nations and now hasbeen ratified by over 69 states.

The convention was inspired by the 1972 Stockholm Confer-ence on the Human Environment and was one of a number ofinternational treaties adopted in the early 1970s, when concernfor the environment and knowledge of the dangers of widespreadcontamination was rapidly growing.

The main purpose of the convention is the effective control ofmarine pollution through the regulation of the dumping of wastematerials into the sea. The convention also covers materials trans-ported to sea for the purpose of dumping, i.e., land-generatedwaste. Dumping as defined in the convention involves any delib-erate disposal at sea of material and substances of any kind, formor description from vessels, aircraft, platforms or other man-madestructures. It includes the disposal of vessels and aircraft, and thedeliberate disposal or abandonment of platforms or other man-made structures.

The convention operates by either banning or regulating thedumping of wastes, the measure of control depending on theirdanger to the environment. Amendments introduced by the 1996

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protocol prohibit all dumping except for a limited number ofbenign wastes listed in Annex I (Article 4[1]). This scheme replacesthe previous system which banned the dumping of a limitednumber of blacklisted substances and allowed the vast remainderto be dumped subject to lesser (those on the white list) or greater(those on the grey list) restrictions.

Incineration at sea of wastes and other material is nowexpressly prohibited by Article 5 of the protocol. This articlereflects the growing concern of the international community aboutthe practice of incinerating noxious liquid wastes at sea as a meansof waste disposal, first used in 1969 as a means of destroyingparticularly hazardous chemical by-products. This provision goesfurther than measures introduced in 1993 which banned incin-eration of industrial waste and sewage sludge but allowedincineration of other wastes subject to permit.

The protocol also reflects 1993 amendments to the conventionwhich prohibit the dumping of wastes containing levels of radio-activity greater than de minimus concentrations as defined by theInternational Atomic Energy Agency (Annex I, paragraph 3). Inaddition, changes to the definition effectively prohibit the emplace-ment of radioactive materials into the seabed (as opposed todumping in the sea).

The 1996 protocol has introduced several well-known conceptsinto the convention, notably the ‘polluter pays’ principle and the‘precautionary principle’, Articles 3(1) and (2) respectively. Underthe former, states are required to promote practices whereby thosepersons authorised to engage in dumping at sea meet the costs ofpollution prevention and control requirements associated withthose activities. Implementation of the precautionary principlerequires states to take preventative measures when there is reasonto believe that the dumping of wastes is likely to cause harm, evenwhere there is no conclusive evidence of a causal connectionbetween inputs and their effects.

The protocol (in Article 1[10]) also introduces a definition ofpollution which mirrors that contained in Article 1(4) of theLOSC.

The convention requires contracting parties to establish appro-priate administrative authorities for enforcing its provisions (inAustralia the issue of permits is controlled by the EnvironmentProtection Agency) and encourages the creation of regionalarrangements for preventing pollution by dumping. In this regard,in 1986 Australia and other South Pacific countries brought intoexistence the Convention for the Protection of the NaturalResources and Environment of the South Pacific Region (SPREP

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Convention) which, together with its protocol of the same name,is designed to protect the marine environment of the South Pacific.

The Basel Convention

The strict controls on the disposal of wastes introduced into manycountries often encouraged states wishing to dispose of thesewastes to send them to countries where the controls were not sotight. This aroused international concern because the wastesinvolved were often dangerous and required extremely carefulhandling. Article 6 of the protocol to the London Dumping Con-vention now prohibits the export of wastes to other countries fordumping or incineration at sea but does not otherwise deal withthe problem.

In 1989 an International Convention on the Control of Trans-boundary Movements of Hazardous Wastes and Their Disposal(Basel Convention) was adopted in Basel at a conference heldunder the auspices of the United Nations Environment ProtectionProgram. As suggested by its title, the Basel Convention sets upa rigorous regime governing the transboundary movement ofhazardous wastes. ‘Wastes’ are defined in the convention as ‘sub-stances or objects, which are disposed of or are intended to bedisposed of or are required to be disposed of by the provisionsof national law’.

Essentially, ‘hazardous wastes’ are those identified in Annex Iunless they lack the hazardous characteristics listed in Annex III.Recent amendments to Annex I and the introduction of AnnexesVIII and IX, adopted in 1998, clarify the categories of wastes thatare subject to the convention.

Radioactive wastes which are subject to other internationalcontrol systems and wastes which derive from the normal opera-tions of a ship, the discharge of which is covered by anotherinternational instrument, are not subject to the terms of theconvention.

Exports of hazardous wastes to parties who have prohibitedtheir import and who have notified the other parties of this arebanned. Moreover, exports to states which have not prohibitedthe import of hazardous wastes are also prohibited, unless thestate of import consents in writing to the specific import.

The regime established by the Basel Convention is designed toensure that states generate the minimum amount of wastes andmake adequate provision for their disposal in situ and so reducethe need for the transboundary movement of hazardous wastes tothe minimum consistent with the environmentally sound and

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efficient management of such wastes. To this end the conventionlimits the transboundary movement of hazardous wastes to situ-ations where the state of export does not have the technicalcapacity and the necessary facilities or suitable disposal sites todispose of the wastes in situ or to situations where the wastes arerequired as a raw material for recycling or recovery industries inthe state of import.

States are also obliged not to allow the export of hazardouswastes if they have reason to believe that the wastes will not bemanaged by the importing state in an environmentally soundmanner. Hazardous wastes which are exported must be packaged,labelled and transported in conformity with generally acceptedinternational rules and standards. Moreover, exporting states mustprovide information to the importing state with regard to theeffects of the proposed movement on human health and theenvironment.

As part of the regulatory controls, the exporting state is obligedto notify in writing not only the state of import of its intentionto move the hazardous wastes, but also transit states, whether ornot they are parties to the convention. Permission for transit maybe denied to the exporter or may be subject to a requirement ofinsurance or other guarantee.

The convention specifically prohibits the export of hazardouswastes for disposal within the area south of 60°S latitude. ForAustralia this protects the Southern Ocean and the Antarctic area.The convention also obliges states parties not to permit hazardouswastes to be exported to a non-party or to be imported from anon-party. Thus the ambit of the convention is very wide.

Article 12 of the Basel Convention provides for the adoptionof a liability and compensation protocol for damage resulting fromthe transboundary movement and disposal of hazardous wastes.An ad hoc Group of Legal and Technical Experts was establishedin December 1992 to consider and develop such a draft protocol.This instrument is expected to cover liability and compensationfor cases both of legal and illegal traffic and disposal of hazardouswastes. At present, however, there are few expectations that theprotocol will be adopted in the near future.

Discharges of oil and other substances from ships: MARPOL73/78

The enormous growth in the maritime transport of oil and thesize of tankers, as well as the increasing amount of chemicalsbeing carried by sea, made many states feel that the 1954 OILPOL

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Convention, which had been developed to cope with the problemof intentional discharges of oil from tankers, was no longer up tothe task.

In 1969 the IMO Assembly, prompted by the Torrey Canyonincident, arranged an international conference to consider a newconvention. The conference duly met in London in 1973. Theconvention which resulted—the International Convention for thePrevention of Pollution from Ships (MARPOL 73/78)—is the mostambitious international treaty covering maritime pollution everadopted. It deals not only with oil but with all forms of marinepollution from ships, except the disposal of land-generated wasteinto the sea by dumping, which the London Dumping Conventionalready covered. It applies to ships of all types (apart fromwarships and others owned and used by states for governmentnon-commercial service). Currently, 104 states have become par-ties to it.

The convention focuses on the control of intentional dischargesand regulates both how and where discharges are to occur. Acci-dental discharges resulting from damage to a ship or its equipmentare not covered provided all reasonable precautions are taken tominimise the discharge (unless the master acted either with intentto cause damage or recklessly and with knowledge that damagewould probably result). Also exempted are discharges for thepurpose of saving life or securing the safety of a ship at sea andapproved discharges for the purpose of combating specific pollu-tion incidents. Contracting parties are obliged to make violationsof MARPOL illegal and sanctions are required to be established(in this regard both the flag state and the state in which theviolation occurred are granted jurisdiction). Provision is also madein the convention for certificates of compliance to be issued toships and, through the exercise of port state control, the provisionsof MARPOL can be (and generally are) enforced even in respectof ships registered in non-state parties.

The convention has two protocols. These deal respectively withreports on incidents involving harmful substances, and arbitration.It also has six annexes, which contain regulations governingvarious types of discharges. Annexes I and II, which deal with oiland bulk noxious liquid substances respectively, are mandatoryin the sense that ratification of the convention is impossiblewithout ratification of these annexes. Annexes III, IV, V and VIdealing respectively with harmful substances in packaged form,sewage, garbage and air pollution, are optional. Work is currentlyunder way on yet another annex regulating pollution from ballastwater.

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The Intervention Convention

The International Convention Relating to Intervention on the HighSeas in Cases of Oil Pollution Casualties, 1969 (InterventionConvention), is worth mentioning because it highlights yet anotheraspect of the battle to control the effects of pollution at sea. Thetreaties described above are aimed at cutting pollution off at itssource—so ships are to be constructed which aim at the ultimatein safety, wastes are not to be dumped or only to be dumpedaccording to particular regimes, oils are not to be discharged orare to be discharged in safe areas and amounts. The InterventionConvention tackles another problem. As suggested by its title, thisinstrument attempts to minimise the damage caused by pollutionby allowing coastal states to intervene on the high seas once anaccident has occurred.

The powers of coastal states under international law in respectof incidents occurring on the high seas were called into questionby the Torrey Canyon disaster of 1967. In particular, questionswere raised as to the extent to which a coastal state could takepractical measures to protect its territory from pollution where acasualty threatened that state with oil pollution, especially if themeasures necessary were likely to affect the interests of foreignshipowners, cargo owners and flag states.

A general international consensus emerged to the effect thatthere was some need for a new regime which, while recognisingthe necessity for some coastal state intervention on the high seasin cases of grave emergency, nevertheless clearly restricted thatright to protect the legitimate interests of other states. A confer-ence to consider such a regime was held in Brussels in 1969. Theresult was the Intervention Convention, which entered into forcein May 1975. (It entered into force for Australia on 5 February1984.)

The Intervention Convention broke new ground by recognisingthe right of coastal states, following a maritime casualty, to takesuch measures on the high seas as might be necessary to prevent,mitigate or eliminate danger to their coastlines or related interestsfrom oil pollution or the threat thereof.

The convention, as originally drafted, applied only to casualtiesinvolving pollution by oil. However, in view of the increasingquantity of other substances—mainly chemicals—carried by ships,some of which would, if released, cause serious damage to themarine environment, the 1969 Brussels conference recognised theneed to extend the convention to cover substances other than oil.

A protocol adopted in 1973 which entered into force im-mediately on 30 March 1983 (for Australia on 5 February 1984)

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accordingly extends the right of coastal state intervention tosituations where grave or imminent danger is threatened to thecoastline or related interests from other pollution hazards.

The notion of related interests, as defined, includes fishingactivities, tourism and the wellbeing of marine living resourcesand of wildlife. Hence there is a power to intervene on purelyenvironmental grounds. The right to intervene is not limited totankers and applies to any seagoing vessel of any type whatsoeverand any floating craft. It does not, however, apply to an installa-tion or device engaged in the exploration and exploitation of theresources of the seabed. Warships and government-owned shipson non-commercial service are also excluded.

In Australia, the convention and the protocol are implementedby the Protection of the Sea (Powers of Intervention) Act 1981.The Act gives the Australian Maritime Safety Authority powers,after due consultation with flag states, cargo owners and shipown-ers, to move, salvage, sink or destroy the ship or part of it andto remove, salvage, sink or destroy its cargo. The requirement forprior consultation reflects those provisions of the conventionintended to effect a balance between the rights and interests ofcoastal states and other relevant states and individuals. A coastalstate which takes measures beyond those permitted by the con-vention is liable to pay compensation for any damage caused bysuch measures.

The OPRC Convention

The primary objectives of the International Convention on OilPollution Preparedness, Response and Co-operation, 1990 (OPRCConvention), which is yet to enter into force, are to facilitateinternational cooperation and mutual assistance in preparing forand responding to a major oil pollution incident and to encouragecountries to develop and maintain an adequate capability to dealwith oil pollution emergencies.

The convention, developed in the wake of the 1989 ExxonValdez disaster, is intended to fill a gap in the internationalframework of treaties dealing with marine pollution. Its impor-tance lies in its role of facilitating international cooperation at theglobal level, as well as in reinforcing regional arrangements andnational oil pollution preparedness and response.

Once the convention enters into force, parties will be requiredto establish measures for dealing with pollution incidents, eithernationally or in cooperation with other countries. Ships will berequired to carry on board an oil pollution emergency plan, the

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contents of which are to be developed by the IMO. Ships willalso be required to report incidents of pollution to coastal author-ities and the convention details the actions that are then to betaken. In addition, the convention calls for the establishment ofstockpiles of oil-spill-combating equipment, the holding of oil-spill-combating exercises and the development of detailed plansfor dealing with pollution incidents. Parties to the convention willbe required to provide assistance to other states in the event of apollution emergency and provision is made for the reimbursementof any assistance provided in such a situation.

Australia acceded to the OPRC in 1992 and many of its articlesare reflected in existing Australian legislation and administrativearrangements. Australia already has in place a requirement foroffshore units to have contingency plans, and a recent amendmentto the MARPOL Convention means that Australian flag ships willbe required to carry such a plan. Australia also has a reportingsystem, a national preparedness and response plan, and a back-ground in training and technical cooperation.

On a regional basis, Australia has agreements relating to oilspill response with New Zealand and Papua New Guinea and hasplayed a major role in the development of a marine pollutionemergency contingency plan for the South Pacific Regional Envi-ronment Program.

Liability and compensation regimes

To date the international community has implemented a compre-hensive liability and compensation regime covering spills of oilfrom tankers and has developed a similar regime (which has notyet entered into force) applicable to spills of other hazardoussubstances such as chemicals. The missing link—a regime coveringspills of bunker oils from non-tankers—is currently being debated,at the instigation of Australia, within the Legal Committee of theIMO.

At the time of the Torrey Canyon incident off the southerncoast of England in 1967, none of these regimes existed. Thismeant that if, at that time, oil from a tanker polluted the shoresof one or more countries, the question whether any person orgovernment could sue for any resulting damage, and if so in whichcountry, was a matter not of international law but solely oneconcerning the internal law, if any, of the states affected by theincident. Just as significantly, there was at that point in time nolegal obligation for a shipowner or any other person to insureagainst pollution liability. Consequently, if an incident occurred,

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victims of such incidents could not be guaranteed compensationeven if they did manage to get the matter into court and obtaina decision in their favour. The difficulties were compounded bythe system of fault-based liability and the consequent legal require-ment to prove that the shipowner or someone else had not onlybeen responsible for causing the incident but was negligent in sodoing.

Prompted by the Torrey Canyon incident, and subsequently bythe even more serious Exxon Valdez incident, the internationalcommunity developed a regime which has revolutionised recoveryin such circumstances, The treaty regime, known as the CivilLiability/Fund regime, is based on two separate conventions,namely, the International Convention on Civil Liability for OilPollution Damage, 1969 (Civil Liability Convention) and theInternational Convention on the Establishment of an InternationalFund for Compensation for Oil Pollution Damage, 1971 (FundConvention). Taken together these conventions provide for atwo-tier system of recovery against the tanker owner in the firstinstance and thereafter, if required, against the cargo interests. TheFund Convention was adopted once it became apparent that theamount of compensation available under the Civil Liability regimewas not always adequate to cover the damage caused by anincident involving supertankers.

The regime is remarkable for its introduction of three novelconcepts. These concepts are:

• a requirement for compulsory insurance of the vessel againstthe possibility of an oil pollution incident,

• the strict liability of the tanker owner and the fund repre-senting the cargo interests, and

• the liability of the tanker owner and the fund are limited.

The requirement that all oil tankers carry compulsory insurance,coupled with the concept that liability was to be strict, that is,based not on fault but simply on causation, meant that, in thefuture, victims of oil spills would essentially be guaranteed pay-ment of compensation, often without the need to resort to lengthylegal proceedings. In return for being obliged to take out compul-sory insurance, the legal liability of tanker owners and the fundwere limited according to a formula based essentially on the sizeof the ship, with an overall sum payable in respect of any singleincident. As is the case with most anti-pollution conventions, theCivil Liability/Fund regime exempts warships and other shipsengaged on government, non-commercial business.

The geographical scope of the conventions, originally limitedto the territorial sea, has been extended by two protocols adopted

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in 1992 to include damage in the EEZ, or where states have notproclaimed one, to the area within 200 nautical miles of the coast.

The 1992 protocols also extended the definition of oil frompersistent oils carried as cargo to include oil carried in the bunkersof the ship. This was very significant because of the vast amountsof bunker fuel oils carried by most ships and because the persistentnature of such oils contributes enormously to the oil pollutiondamage in any maritime incident.

The definition of ‘pollution damage’ was also amended by the1992 protocols. It now reads that ‘pollution damage’ should bedefined as:

• ‘loss or damage caused outside the ship by contaminationresulting from the escape or discharge of oil from the ship,wherever such escape or discharge may occur, provided thatcompensation for impairment of the environment other thanloss of profit from such impairment should be limited to costsof reasonable measures of reinstatement actually undertakenor to be undertaken’; and

• ‘the cost of preventative measures and further loss or damagecaused by preventative measures’.

The limitation of damage to the environment to loss of profitsand costs of reasonable measures of reinstatement actually under-taken or to be undertaken brings the regime into line withnumerous decisions of the Fund Assembly that damages shouldnot be awarded on the basis of any abstract quantification calcu-lated in accordance with theoretical models. This means in practicethat, while damages may be recovered, for example, for loss ofprofits due to tourists cancelling their bookings, there can be noclaim for compensation where there is no intention to take anysteps to replace fish or other wildlife or where there is no intentionactually to expend money on repairing the damaged environment.

A convention to cover damage to the marine environment byan incident at sea involving hazardous and noxious substancesother than oils covered by the Civil Liability/Fund regime, butmodelled on that regime, was adopted at a diplomatic conferenceheld at the IMO in 1996. The convention, known as the Hazard-ous and Noxious Substances Convention, has not yet been ratifiedby any state and is not expected to enter into force for some years.Whether a liability regime for damage caused by bunker fuels fromnon-tankers will ever see the light of day is difficult to assess.Although Australia and some other states are pressing stronglyfor its development, currently there is opposition on the part ofsome states within the Legal Committee of the IMO on the basisthat there is no proven need for such a convention.

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Conclusions

By way of concluding, it is as well to ask how well these varioustreaty regimes are functioning. The main problem in fightingmarine pollution remains one of inadequate implementation.Nearly all of the most important conventions are in force andhave been ratified by the great majority of maritime nations. Thisshould mean that maritime standards are more or less the sameall over the world. In reality, they vary enormously from state tostate and flag to flag—a difference which is reflected in thecasualty statistics, which show that the chances of a ship beinginvolved in a serious accident are more than 100 times greaterunder the flag with the worst record than under the flag with thebest. The problem is compounded by the fact that the fleets withthe best safety records have tended to shrink over the last decade,while those whose records are not so good have grown in size.

This situation is similar with regard to individual anti-pollutionregimes. MARPOL 73/78, for example, requires governments tosubmit regular reports to the IMO, yet a survey carried out forFriends of the Earth International in 1991 showed that 30 of the72 then contracting parties to MARPOL had never submitted areport of any kind.

Some governments have shown a similar reluctance to providethe facilities for receiving wastes that are required by four of theannexes to MARPOL 73/78. A survey carried out by the Interna-tional Chamber of Shipping in 1990 revealed that, where facilitiesare available, there are often considerable differences in feescharged for the reception of wastes.

The IMO has sought to tackle the problem through variousmeasures, which include: the provision of technical assistance todeveloping countries; fostering training through institutions suchas the World Maritime University at Malmo, Sweden; and adopt-ing measures to encourage flag state implementation and port statecontrol. Much, however, still remains to be done.

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10 Outstanding issues withregimes for oceansgovernanceMarcus Haward

REGIMES FOR OCEANS GOVERNANCE

The consideration of ‘outstanding issues’ with respect to regimesfor oceans governance invites two, complementary, interpretations.The first is the need to examine unresolved issues; the second theextent to which achievement in a range of ocean regimes over thepast three decades can be seen as a remarkable example of globaland regional governance. It can be argued that much needs to bedone, but it is also clear that one of the more significant achieve-ments of the world community has been the negotiation and(eventual) entry into force of the Law of the Sea Convention(LOSC) and its related instruments.

Despite the obvious difficulties in achieving ratification of theLOSC—the 12-year period from the Convention being opened forsignature and its entry into force—it remains a comprehensiveregime for oceans governance; ‘a constitution for the oceans’.1

Like all constitutions the LOSC is evolving, and will continueto evolve. Recent developments including the establishment ofthe ‘tripartite key institutions’ under the LOSC (the Interna-tional Tribunal on the Law of the Sea; the Commission on theLimits of the Continental Shelf; and the International SeabedAuthority) are milestones in the evolution of legal regimes.2 Thischapter begins with a brief survey of general issues related tooceans governance before considering outstanding issues andfuture directions.

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Regimes for oceans governance

There is a veritable ‘alphabet soup’ of international and regionalregimes related to oceans governance.3 The proliferation ofregimes, international conventions and regional arrangements pro-vide an important and at times a complex framework. The vastmajority of these regimes are concerned with sectoral managementof different resources, or providing management, amelioration orprevention of particular problems. A key issue, particularly in thegovernance of the world’s oceans in the political and socialenvironment since the United Nations Conference on Environmentand Development (UNCED), is the need to increase integrationbetween and within various international regimes.

Thus the question of integration needs to be considered in twodimensions: vertically in relation to the harmonisation of nationallegislation with the provisions of the LOSC and horizontally interms of the relationships between various management regimes.A second and equally important focus is to increase the level ofintegration within national management arrangements.4 Manage-ment of the ocean domain involves integration between the coastalstates’ exclusive economic zones (EEZs) and the high seas, acentral point in the United Nations (UN) Agreement on StraddlingFish Stocks and Highly Migratory Fish Stocks.5

UNCLOS to UNCED

The movement towards oceans enclosure in the 1970s under theprovisions of the EEZ at the third United Nations Conference onthe Law of the Sea (UNCLOS) was a pivotal element in oceansmanagement. The declaration of 200 nautical miles EEZs orfishing zones reinforced the rights (and responsibilities) of coastalstates. The development of these zones raised problems of over-lapping jurisdictional claims and concomitant boundarydelimitation issues. Areas such as the South China Sea which arethe subject of a number of overlapping claims pose difficulties inthe development of management regimes for the exploitation ofnon-living marine resources.

Transboundary problems are also found in the management ofmarine living resources. Here potential conflicts can arise betweencoastal and distant water fishing states over access to fisheriesresources within EEZs and over stocks which straddle the EEZboundary. While coastal states have gained considerable rightsover fish resources within the EEZ, considerable problems have

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arisen over the management of straddling stocks, or over stockswhich migrate through a number of EEZs and/or high seas areas.

Questions of access to marine resources and transboundarydisputes have the potential to raise tensions over resource andenvironmental security. The possibility of such tensions emphasisesa need to continue the development of conflict resolution tech-niques and institutions in the ongoing evolution of ocean regimes.This evolution will include the recognition that rights to oceanresources also lead to a number of obligations. While muchattention has been given to the impact of national ratification of,or accession to, the LOSC in terms of sovereignty (including thepublicity surrounding the notion that Australia more than doubledits area of jurisdiction), less public attention has been drawn tothe concomitant national obligations under the LOSC. Theseobligations are significant and include a considerable effort inmapping and delimiting the continental shelf margin as well asbeing able to show that resources within the EEZ are not onlyutilised but wisely managed. The concept of stewardship or wiseuse6 provides a significant link between the LOSC—the outcomeof UNCLOS—and the outcomes of UNCED, clearly focused onecosystem management and sustainable development.

The outcomes of UNCED, the Rio Declaration and Agenda 21(particularly Chapter 17) as well as the Biodiversity Conventionand the Framework Convention of Climate Change have alreadyhad significant impacts in the development of oceans governance.Key post-Rio principles—sustainable development, integration, theprecautionary principle/approach, and intergenerational equityhave increased the significance of ecosystems approaches to man-agement of marine living resources. These approaches areappearing in a number of national policy documents; for examplethe Canadian Oceans Act and the current development of anAustralian Oceans Policy.7 A further, related, development in theperiod since UNCED has been the negotiation of instruments suchas the Food and Agriculture’s Code of Conduct for ResponsibleFishing—a voluntary ‘soft’ law instrument.8 Such instruments arethose which seek compliance from states and entities but lackformal means of enforcing their provisions. Clearly significantchallenges relate to the ongoing efforts to seek compliance with,and effecting enforcement of, the range of regimes affecting gov-ernance of the oceans.

Despite considerable work over the past two decades andincreased interest in enhancing oceans governance, several keyissue areas have been identified. These relate to enhancing theeffectiveness of existing regimes and organisations; the questionof capacity building and national policy and legal arrangements;

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the establishment of a regime for high seas fish stocks; andongoing development in a range of sectoral regimes.

The establishment of the tripartite institutions envisaged underthe LOSC as outlined previously is a major development in theinternational governance of the oceans. The development of oper-ational procedures and norms for these international bodies is partof a major institution-building effort for the international com-munity. Experiences of other international organisations indicatesthat the development of effective operational practices can taketime. The International Tribunal on the Law of the Sea, the Com-mission on the Limits of the Continental Shelf, and theInternational Seabed Authority do, however, have considerablesupport and back-up. A second and most important adjunct tosuch UN organisations is, as noted by Miles,9 the need to increasenational capacity to match the increasing requirements undersuch instruments as the straddling and highly migratory stocksagreement.

Continued development of legislation at the national level isalso needed to ensure effective governance of the oceans. Domesticlegislation needs to provide effective enforcement of flag stateresponsibilities and port state control, elements critical in themanagement of both ship-sourced marine pollution and fisheries.The question of domestic legislation and institutional capacity isparticularly significant for small island states which may havelarge EEZs, requiring considerable resources to manage and es-tablish effective enforcement regimes.

The issue of the management of fisheries resources in the highseas, particularly related to straddling and highly migratory stocks,emerged as a key issue in the years following the conclusion ofUNCLOS. Commentators had noted the inadequacies of the pro-visions in the LOSC regarding these issues.10 The management ofhigh seas fisheries was the focus of international discussions priorto UNCED. As a result of these discussions, a specific UnitedNations–sponsored conference on high seas fisheries was estab-lished. The UN Conference on Straddling Fish Stocks and HighlyMigratory Fish Stocks had its first substantive session in thesummer of 1993 and concluded its final round of deliberations inearly August 1995. The conference produced a legally bindinginstrument for the management of such stocks, which was openedfor signature in December 1995. The agreement is clearly asignificant development in oceans governance giving, for example,suggested guidelines for application of precautionary referencepoints in conservation and management of straddling fish stocksand highly migratory fish stocks. As of 8 April 1998, 59 countrieshad signed the agreement, with 17 ratifications or accessions.

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A number of issues affecting sectoral regimes have emerged inthe period following the conclusion of UNCLOS. Most notablehas been increasing concern at the degradation of the marineenvironment through pollution and attention to the maintenanceof marine biodiversity.

Ship-sourced pollution derives from the accidental discharge ofpollutants or from the dumping of wastes (including ballast water,plastics and other material) from vessels. Ship-sourced pollutionis regulated under two international conventions—the Conventionfor the Prevention of Pollution from Ships (MARPOL 73/78), andthe Convention on the Preservation of the Marine Environmentby Dumping of Wastes and Other Matter, 1973 (the LondonDumping Convention). The International Maritime Organisation(IMO) is responsible for the administration of MARPOL, and hasdeveloped a Global Program for the Protection of the MarineEnvironment, addressing basic principles of ‘safer ships andcleaner seas’. Annexes to MARPOL deal with different ship-sourced pollutants, with Annex V (governing garbage) totallyprohibiting the disposal of plastics, including fishing gear, into thesea. In response to Australian concern over the problem of ballastwater,11 the IMO has established voluntary international guidelinesgoverning ballast water. These guidelines were developed by Aus-tralia and include non-release of ballast water, ballast waterexchange and sediment removal and use of shore-based treatmentfacilities. The IMO is moving to establish a further annex toMARPOL dealing with ballast water.

While ship-sourced marine pollution from tanker accidents orgroundings often gains public attention—and may hasten thedevelopment of further regulations or actions governing tankeroperations—such sources provide only a small percentage of pol-lution within the world’s seas and oceans.12 Land-based sourcesof marine pollution pose a great threat to ocean and coastal areasand the management of such sources of pollution is clearly a majorissue. As Kimball notes, ‘the importance of land-based activitiesas a source of marine pollution was not recognized when theLOSC was concluded in 1982’.13 In the period followingUNCLOS, increased attention to this issue led the United NationsEnvironment Program to prepare a strategy for combating ‘deg-radation of the marine environment from land-based sources ofpollution and activities in the coastal area’.14 Following furthermeetings after UNCED, a Global Program of Action was devel-oped to manage the problems of land-based sources of marinepollution.

The LOSC contains significant provisions related to the pro-tection of the marine environment. As Rose notes, the entry into

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force of the convention ‘continues a process of consolidation,elaboration and extension of existing law for the protection andconservation of the marine environment’.15 This existing lawincludes a number of instruments developed after the conclusionof UNCLOS, in particular the Biological Diversity Convention,which have been directed towards the protection and maintenanceof biological diversity (biodiversity). In terms of marine biodivers-ity, attention has focused on the need for greater research andunderstanding of impacts on marine ecosystems. It is widelyrecognised that a ‘major problem is that the level of knowledgeof our marine biodiversity, whether at generic, population,community or seascape level, is substantially less than that ofterrestrial environments’.16 Given the increased attention to theliving resources of the world’s seas and oceans, protection of themarine environment and maintenance of biodiversity are tworelated issues. The salience of such issues cannot be underesti-mated. As Bridgewater notes, the ‘ultimate vision for marinebiodiversity is that of a safe sustainable harvest, with biologicalresources to be enjoyed and treasured by all, for now and in thefuture’.17

Outstanding issues and future directions

A number of issues remain ‘outstanding’ in the development ofregimes for oceans governance, despite (or perhaps because of) theentry into force of the LOSC and ratification or accession to thetreaty by a large number of states. The LOSC as a frameworkdocument provides the opportunity for the ‘nesting’ of otherregimes within the broad framework established under theconvention. Equally important is the opportunity for ongoingdevelopment of regional regimes, institutions and processesconcerned with oceans governance. Regional arrangements may,however, contribute to potential overlap between regimes.18 Over-lap may be deliberate—in the ‘nesting’ of a regional regime withina global framework19—or it may be inadvertent, where the devel-opment of a new regime affects the operation of pre-existingarrangements.20 In either case the overlap may have positive andnegative effects, enhancing collaboration or reducing spillovers butat the same time complicating management arrangements.

The LOSC itself is likely to face considerable challenges intothe future. One issue has already been discussed—the developmentand operation of the major institutions established under theconvention. Just as states face challenges in developing appropriatenational institutional arrangements to take account of current

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international obligations and norms related to ocean and coastalmanagement, so too do these UN-based institutions. One of thesechallenges will be the ongoing monitoring and evaluation of states’compliance with the LOSC and the need for regular assessmentsand reporting on issues related to the convention. Currentlymatters related to the law of the sea are discussed at the annualUnited Nations General Assembly debate on the oceans. Thisdebate could be supported by a meeting of states parties tothe convention.21 Such meetings would enhance cooperativemechanisms such as capacity building, assistance and informationtransfer, and scientific data gathering and exchange.

As the world’s fisheries are subject to increasing effort,continued development of ocean management regimes relating tomanagement of fisheries and effective institutional arrangementsto give effect to these regimes is needed. This needs to occur atboth the international level and at the national level. Effectiveand sustainable fisheries management within the EEZs of coastalstates is clearly essential. Effective enforcement and complianceregimes are critical elements in the development of sustainablemanagement practices. The development of regional managementbodies and ongoing developments within competent specialisedinternational management arrangements are also important.Particular attention needs to be paid to standardising the precau-tionary approach, minimising waste and discards and reducingincidental catches of fish and other ‘ecologically related species’.Key elements are the entry into force of the straddling and highlymigratory stocks agreement, support for the Compliance Agree-ment for fishing on the high seas and the broader stewardshipresponsibilities found within the Code of Conduct for ResponsibleFisheries.

Much remains to be done in terms of responding to bothship-sourced and land-based sources of marine pollution. Increas-ing the level of port state inspections and actions can have markedeffects on improving ship safety and integrity, reducing accidentallosses of pollutants.22 Continued work on other aspects of ship-sourced pollution, particularly in relation to problems with ballastwater transfer, is also important. International action in theseareas, such as appropriate annexes to MARPOL, need to beboosted by consistent national guidelines and adequate arrange-ments at ports to ensure efficient compliance with thesearrangements. In relation to land-based sources, continued workand increased national support for the Global Program of Actionon the Protection of the Marine Environment from Land BasedActivities is necessary. Again these initiatives need to be supported

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by appropriate national legislation and, where necessary, sub-national legislation and management practices.

Marine environmental protection has emerged as a major areafor ongoing action in the period following the completion of theLOSC. Maintenance and conservation of marine biodiversity isclearly a salient political issue in the late 1990s. Many of theworld’s fish stocks are heavily fished. Many coastal states aremoving to establishing marine protected areas as a means ofenhancing the protection of marine biodiversity. Marine protectedareas can be managed under multiple use arrangements and canhave important roles in maintaining biomass of fish stocks. Theestablishment of national systems of marine protected areas,including representative areas of a large enough scale to provideadequate protection of ecosystems, is one important outstandingissue and a clear direction for the future.

Conclusion

Much has been achieved in the development of arrangements andprocesses for oceans governance. It is also equally valid to arguethat this work has pointed to the ongoing need for further actionat international, regional and national levels to ensure sustainableuse and management of the world’s seas and oceans. While eachof the sectoral regimes has specific and immediate tasks andchallenges, it is also important to focus on one major outstandingissue: the need to provide integrated management of the oceans.Such management arrangements are not easy to establish ormaintain. Integration involves a vertical dimension linking inter-national instruments and regimes to national legislation andpractices. Within national jurisdictions integration also involvesan important horizontal dimension ensuring that national andsub-national government agencies are working together to ensureappropriate governance of coastal and ocean areas. Moving toensure coordination and integration within the ‘alphabet soup’,the major outstanding issue for oceans governance, recalls thepreamble to the LOSC ‘that problems of ocean space are closelyinterrelated and need to be considered as a whole’.23

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11 Maritime environmentalsecurityAlan Dupont

MARITIME ENVIRONMENTAL SECURITY

Although well entrenched in the lexicon of international securitystudies, it is remarkable how loosely the term environmentalsecurity is often applied and how much confusion still exists aboutits precise meaning. The range of subjects which have at one timeor another been either conceptually or operationally located in theenvironmental security basket are bewildering in their diversity.They include acid rain, agricultural yields, biodiversity, counter-terrorism, deforestation, economic competitiveness, failed states,flooding, fossil fuels, greenhouse warming, hazardous waste,infectious diseases, refugees, illegal migration, oil crises, over-population, poverty, soil degradation, sustainable development,trans-boundary pollution, urbanisation and vector-borne diseases.1

This list is far from exhaustive.A close examination of the literature reveals that there are, in

fact, three distinct sub-schools of thought and activities, which fitwithin the rubric of environmental security. The first of these, andthe one most commonly embraced by national security estab-lishments, focuses on the use of national defence forces andmilitary assets to monitor environmental change and to assist inprotecting or rejuvenating the environment.2 The second, the darkside of the force, is environmental warfare—the explicit targetingof an adversary’s resources or physical environment aimed atdegrading or destroying his capacity to prosecute war.3

A third category, and the one on which this chapter focuses,concerns itself with how human-induced environmental degrada-tion foments violent conflict.

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The underlying assumption of what might be termed the envi-ronmental security school of international relations4 is that theearth is rapidly approaching the finite limits of its capacity tosupport the global lifestyles and development practices which haveevolved in the twentieth century. Unless international society rec-ognises these constraints and makes commensurate adjustments,environmental stress will increasingly threaten economic growth,particularly in the developing world. Environmental pressures, itis argued, will also heighten competition for scarce resources,thereby increasing the risk of social and political disorder as wellas military conflict.

The main physical consequences of human-induced environ-mental degradation are:

• reductions in arable land, soil fertility, potable water andcritical natural resources due to overpopulation, pollution,deforestation and unsustainable development practices;

• damage to the global maritime environment from over-fishing,pollution, urbanisation and the degradation of ecologicallysensitive marine coastal environments; and

• climate change and associated sea-level rise, resulting from abuild-up of greenhouse gases and atmospheric pollution.5

Although the focus of this chapter is about maritime environ-mental security, it is important to recognise that the major threatsto the health, productivity and biodiversity of the marine environ-ment result, in the words of a United Nations (UN) report, ‘fromhuman activities on land, in coastal areas and further inland’.Nearly 80 per cent of all marine pollution and the physicalalteration of coastal environments globally is caused by agricul-tural and industrial runoff from the land and urban sprawl.6

The point here is that it is simply not possible to fullycomprehend the relationship between the environment and securityby taking a narrow sectoral approach to the subject. The environ-ment does not conform to political, oceanic or geographicalboundaries. The impact of human-induced ecological stressand resource scarcity on the ocean environment must be viewedholistically.

Population and conflict

This point can be illustrated by exploring the relationship betweenthe environment and security in Pacific Asia, beginning with theimpact of population growth. There are three demographic char-acteristics which are critical to understanding the linkage between

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population and conflict. The first is the unprecedented rate ofpopulation increase that has taken place in the twentieth century.7

The second is the absolute size of the world’s current and projectedpopulation levels. The third is the level of urbanisation, particu-larly in the developing world.

With the exception of Japan, Singapore, and the two Koreas,the developing states of Pacific Asia are experiencing substantialincreases in population and urbanisation in conjunction with highlevels of economic growth.8 The region will contain over 2 billionpeople by the year 2000, comprising just under one-third of theworld’s total population. Increasing numbers of these people aredestined to live in large urban agglomerations, which is a changeof historic proportions for the previously rural, agrarian-orientedsocieties of the region. In 1950, Asia as a whole had just58 million people living in cities with populations of over1 million. By 1990, however, the number of big-city dwellers hadswelled to 359 million, more than Europe and North Americacombined. The shift from rural Asia to urban Asia will acceleratein the coming century, aggravating urban crowding and increasingthe risk of social and political conflict.9 In 2015, Asia is expectedto have 903 million living in cities of over 1 million, more thanthe rest of the world combined,10 and this figure is expected torise to 2.5 billion by 2025. By that time, Asia will host half theworld’s urban population.11

While there is no direct link between population growth andconflict, the rapid increase in Pacific Asia’s population is beginningto reduce the availability and quality of natural resources andliving space. Dramatic increase in urbanisation will be a primarycause of environmental degradation as cities strain to cope withthe infrastructural and social demands of rapid influxes of newcity-dwellers. Population pressures will add to the problems ofgovernance by widening income disparities in developing statesand degrading coastal environments, which is where most of theregion’s large cities are located.

Environmental degradation is reducing the global carryingcapacity of the land and sea.12 On the land, the detrimental effectsof this assault on the earth’s natural resource base can be seen inthe steady disappearance of farmland due to rampant commercialand industrial development, soil erosion and the loss of soilfertility from over-logging and the overuse of pesticides. It hasbeen estimated that nearly half the 29 million tonnes of graingained every year from advances in technology and investmentsin irrigation, fertiliser and other inputs, is lost because of envi-ronmental degradation.13 Since 1981, the area given over to global

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grain production has shrunk by 55 million hectares to 680 millionhectares, while the per capita grain area has halved.14

Fish

However, for most Pacific Asian states, it is at sea rather than onthe land where the circular relationship between food security,population growth, ecological stress and conflict is most evident.Fish is a key source of food for all Pacific Asian states. Aspopulations have increased, so has awareness that the oceansconstitute one of the last remaining reserves of protein. For anestimated 1 billion Asians fish is the main source of protein andfishing supports more people than in any other comparable region.Over half the world’s fish catch is taken in Asian waters and fiveof the top ten fishing nations are in Pacific Asia.15 It is not sur-prising, therefore, that the Pacific has been described by one seniorAsian defence official as the region’s ‘rice-bowl’ for the twenty-first century.16 Unfortunately, despite its vastness, this maritimerice-bowl is already showing signs of environmental stress fromthe effects of coastal pollution, over-fishing and the unsustainableexploitation of other forms of marine living resources.

What is happening to regional fish stocks is part of a broadertrend. In 1990, the world fish catch fell for the first time in 13years and it has not recovered.17 As populations have continuedto increase, per capita fish availability declined by about 10 percent between 1990 and 1995, despite the $US45 billion in subsi-dies provided annually by national governments to their fishingindustries.18 The UN estimates that another 16 million tonnes offish will be required by 2010. In response to rising demand136 000 new ships have been added to the world’s fishing fleetssince 1989. Predictably, these additional vessels have only accel-erated the decline in supply, causing prices to spiral upwards.19

Between 1981 and 1991, the value of exports from the world’sfisheries rose by 260 per cent, from $US15 billion to $US39 billion.20

In 1994, a World Bank study warned that ‘the current harvestingcapacity of the world’s fleet far exceeds the estimated biologicalsustainability of most commercial species’.21 The depletion of fishspecies is a major concern in the Northwest Pacific, which providesnearly one-third of the world’s marine harvest.22 Fish stocks in theYellow and East China Sea are down significantly and the situationis no better in the South China Sea.23 While aquaculture may fillsome of the gap in supply, it is unlikely to ever be a substitute formarine fishing. Fish farming requires far more resources than

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harvesting fish caught in the wild and aquaculture can also causesignificant environmental damage.24

As traditional fishing grounds are depleted, or exhausted,competition for the remaining stocks has intensified. Countrieswhich once welcomed and even encouraged foreign fishing fleetsnow restrict their access and quotas, while fishing nations havebecome much more protective of their own fish resources. Oneresult has been a steady increase in the frequency of clashes andincidents at sea caused by foreign fishing trawlers illegallyencroaching into exclusive economic zones and territorial seas.

Pollution

The extent to which pollution is eroding the region’s productivebase is particularly evident at sea. Because most of Pacific Asia’smajor cities are located in coastal areas or adjacent to riversystems which drain into the sea, the shallow oceans and marginalwetland areas which spawn a large percentage of the region’smarine life are now being threatened by urban sprawl. As aconsequence, coastal regions are being denuded of their protectivevegetation, and ever-increasing amounts of untreated industrialand human waste are pouring into river estuaries and coastalwaters. Serious marine pollution now affects large areas of theregion, especially the Gulf of Thailand, Manila and Jakarta Bays,the South China Sea, the Mekong Delta and the waters off SouthKorea, Japan and China.25

As the search for energy has intensified, mining, oil and gasexploration has risen sharply, creating further pressures on themarine and coastal environments. The excessive use of chemicalfertilisers by farmers seeking to improve yields, and the exponen-tial rise in maritime traffic plying the region’s major shippingroutes, have contributed to high levels of pollution in the Yellow,East and South China Seas. Oil carried by rivers from the Beijingarea, and from ships and offshore drilling platforms, has seriouslypolluted Bohai Bay. In the mid-1980s, at least one-third of China’scoastal waters contained significant levels of cadmium, mercuryand heavy metals, and the situation has worsened since.26 Thelower reaches of the Tumen River in North Korea are also badlypolluted and ‘red tides’ have been reported.27

Oil pollution in all of East Asia’s seas is on the rise, a trendwhich is unlikely to be reversed as the region’s sealanes becomeincreasingly crowded with oil-tanker traffic and other shipping.The East China Sea experienced its first major oil spill in Novem-ber 1971, when the tanker Juliana spilled 6400 tonnes of oil,

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devastating fish and other marine life.28 Since then there have beennumerous spills at sea, one of the most serious of which was thebreak-up of a Russian oil tanker, the Nahodka, off the Japanesecoast in January 1997. The resultant discharge severely damagedJapan’s sensitive fish and aquaculture breeding grounds. The acci-dent also became a contentious political issue between Russia andJapan as the two states argued about who should accept theblame.29

In the heavily trafficked Malacca Straits, governments worryabout the danger of a major oil spill seriously disrupting or evenclosing the strait,30 which could have devastating economic andenvironmental consequences not only for the contiguous states ofMalaysia, Singapore and Indonesia, but also for the broaderregion, as the strait carries a high percentage of inter-regionaltrade.31 In the mid-1990s, over 1100 fully-laden oil tankers werepassing through the Malacca Straits, ‘many with only a meter ortwo of clearance between their keels and the channel bottom’.32

Indonesia and Malaysia have recently stepped up maritime coop-eration to prosecute offending ships which dump oil and waste atsea, resulting in several high speed chases at sea and shots acrossthe bows of offending ships attempting to escape into internationalwaters.33

There is little doubt that pollution will become a significantenvironmental policy issue for the region. The growing sensitiv-ity of governments to pollution will influence the security-policyclimate, although it is unlikely to be a primary cause of militaryconflict.

Nuclear power and environmental security

While strategic analysts are apt to focus on the weapons potentialand proliferation aspects of nuclear power, its environmentalsecurity implications will become increasingly important forPacific Asia for two principal reasons. First, domestic politicalsensitivity to the risks of accidental discharges of radioactivityfrom nuclear power reactors has increased markedly since theinfamous Three Mile Island accident in the United States in 1979and the Chernobyl disaster in the Ukraine in 1986. There is aheightened awareness of the potential damage that highly toxicradioactive waste can wreak on the environment and humanhealth. As domestic opposition to nuclear power becomes moreentrenched and vocal, the potential for violence will grow accord-ingly. Second, waste disposal and the transshipment of nuclearfuel will become a more pressing political and security issue—and

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one with a significant maritime dimension—as the region’s con-sumption of nuclear energy increases and the space at existingstorage sites declines.

In January 1993, the Japanese Government attempted to dis-creetly ship 1.7 tonnes of plutonium from France aboard theAkatsuki Maru for use in its fast breeder reactor program. Priorto the shipment, alarmed officials from Singapore, Malaysia andIndonesia expressed their concern to Japan over reports thatthe plutonium shipment might pass through the Malacca Straits,pointing out the environmental and safety implications shouldthere be an accident in the heavily trafficked channel. Even whenthe ship eventually sailed a circuitous course well south ofAustralia before transiting the Pacific, its passage was marked bya storm of international and regional protest.34 In the same year,Japan demanded that Russia cease its practice of dumping liquidnuclear waste into the Sea of Japan. The Japanese protest wasunusually sharp, with a senior official of the Foreign Ministrywarning the Russian Ambassador: ‘We demand that you stop thiskind of dumping. We demand that you never again do this in thefuture’.35

Inter-state tensions over the disposal of nuclear waste in North-east Asia underlines the growing capacity of a new class ofenergy-related environmental-security issues to aggravate conflict,especially when bilateral relations are already under pressure fromother political and strategic rivalries.

Cooperation or conflict

It should not be inferred from this catalogue of environmental illsthat ecological stress will inevitably lead to conflict. Regionalcooperation can substantially mitigate the security fallout ifgovernments act decisively to address the root causes and conse-quences of environmental degradation and conflict. To their credit,East Asian governments have already taken some steps down thisroad. At the national level, greater efforts are being made tocorrect some of the environmental excesses of past eras. Indone-sia’s Environmental Impact Management Agency, for example, hasbegun to evaluate the environmental record of private companiesand to give a black rating to the most egregious offenders, whileenvironmental officials in China closed down 50 000 pollutingfactories in 1996 because they threatened health and createdenvironmental chaos.36

Sub-regionally, the Association of South East Asian Nations(ASEAN) Environmental Program was established in 1978, in

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order to promote sustainable economic development and, in 1981,ASEAN issued its first major declaration on the environment. Thiswas followed in 1990 by the Kuala Lumpur Accord on theEnvironment and Development, which confirmed the commitmentto sustainable economic development.37 ASEAN has taken initia-tives to combat major oil spills by setting up the ASEAN Oil SpillResponse and Preparedness project.38 Major oil companies havealso established an organisation to manage oil spills with anti-pollutant equipment pre-positioned in Singapore and Malaysia.39

Northeast Asia’s track record on the environment has been lessimpressive, due to the residual effects of the Cold War, which havecircumscribed multilateral cooperation more generally. However,there are environmental regimes such as the Northwest ActionPlan, the Prevention and Management of Marine Pollution in theEast Asia Seas and the Interim Scientific Committee for Tuna andTuna-like Species, which held its first meeting in May 1996.40

Region-wide environmental programs have also been implementedby the Asia–Pacific Economic Cooperation (APEC) forum. In July1990, APEC initiated a dialogue on the maritime transport ofhazardous substances, the discharge of marine pollutants, and theproblem of marine debris. In March 1994, the first APEC Envi-ronmental Ministers’ Conference was held in Vancouver, Canada.The Track-Two Council for Security Cooperation in the Asia–Pacific, the only multilateral regional organisation whichspecifically focuses on the security aspects of the environment, hasconsidered proposals aimed at safeguarding the marine environ-ment and providing for ‘environmentally responsible defence’.41

Australia, for its part, has signed Memorandums of Understandingwith New Zealand, Indonesia and Papua New Guinea whichinclude provisions for joint responses to oil spills originatingwithin and outside territorial waters.42

It is difficult to escape the conclusion, however, that themeasures so far adopted by regional states to combat the delete-rious effects of environmental degradation fall a long way shortof what is required.43 Most efforts, to date, have targeted theeconomic and maritime aspects of the problem, which althoughimportant represent only part of the environmental picture.44 Andthere is still insufficient appreciation of the multi-dimensionalnature of the linkages between the environment and security.

Conclusion

Environmental issues will increasingly feature on the maritimesecurity agenda of Pacific Asia. But it is important to recognise

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that there can be no simple judgements about the relationshipbetween the environment and security. Those who see a closeconnection between environmental degradation and militaryconflict exaggerate their case: there is no compelling evidence thatenvironmental problems have been the primary cause of any majorsub-national or inter-state conflict. This is not, however, an argu-ment for complacency. Ecological pressures will be increasinglyimportant in shaping the economic and political environment inPacific Asia and, by extension, its security environment. War isunlikely to result purely—or even primarily—for environmentalreasons, but Pacific Asia suffers from many tensions that haveenvironmental sources. Understanding security in Pacific Asiatherefore requires an understanding of environmental issues.

The precise impact and the strategic weight of environmentalfactors will vary considerably from one conflict situation toanother. In some they may play no role at all. In others theirinfluence will be associative rather than causative, or they mayact as catalysts, sparking violence and political instability inter-nally, although rarely major inter-state war.

Environmental degradation is particularly evident at sea.Marine oil spills can cause political tensions between states, asthe sinking of the Nahodka illustrates, and a major oil spill wouldcertainly have significant economic security consequences if it wereto occur in a confined sealane like the Malacca Strait. However,oil pollution at sea is unlikely to lead to military conflict. Pollutionshould be seen more as a reflection of the economic, social,environmental and demographic forces shaping Pacific Asia’s secu-rity environment rather than as a fundamental cause of them.

Population growth, on the other hand, has more palpable andimportant implications for regional security. Not in the apocalypticand deterministic way that neo-Malthusians conceive but becausepopulation increases of the order Pacific Asia will experience overthe coming century will aggravate existing political and social divi-sions within states and accelerate the decline in the region’s stocksof natural resources.

Inter-state confrontation over fish and other living resourcesin the disputed seas of Pacific Asia is emerging as a significantlong-term security problem for the region and one which bears allthe hallmarks of environmental scarcity—on the supply side fromthe depletion and exhaustion of traditional fishing grounds causedby unsustainable levels of harvest and the destruction of sensitivemarine ecosystems, and on the demand side from populationpressures and Pacific Asia’s growing affluence.

The real long-term food security issue for Pacific Asia isthe cumulative and accelerating destruction of the region’s

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food-producing capacity, through a combination of populationpressures and widespread ecological stress. For this reason, thepreservation of arable land, the protection of coastal and marinehabitats and the sustainable management of natural resources mayin time come to be seen as intrinsic elements of conflict prevention.

There is perhaps no better example of the interaction betweentraditional and geo-environmental causes of conflict than themaritime disputes, which infect the South and East China Seas.The hunger for resources has clearly complicated and compoundedthe jurisdictional and sovereignty issues which are at stake.Without the press of rising populations, high levels of energydependency and the exhaustion of fish and other marine livingresources, the maritime sovereignty and territorial issues in theWestern Pacific would almost certainly not have attracted the samedegree of prominence nor proved as difficult to resolve.45

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12 Energy resources andsecurity in Asia–PacificMark J. Valencia

ENERGY RESOURCES AND SECURITY IN ASIA–PACIFIC

In Northeast Asia energy and security are locked in an unusuallytight and fateful embrace because of the distinctive energy vulner-abilities of many nations within the region. Asia’s energy demand,centring on oil, will not only rise but will also progressivelybroaden to include a wide range of even more rapidly growingnearby economies.

The energy demand factor: rising regional competition forsupply1

Recent Asia–Pacific Economic Cooperation Forum (APEC) fore-casts (Table 12.1) suggest that within 15 years there will be fouror five major competitors for existing Asian oil supplies in regionalmarkets traditionally dominated by Japan. By 2010, if currentforecasts prevail, Japan’s share of Asian oil imports will havefallen 50 per cent to 37 per cent of the region’s total. China(including Taiwan and Hong Kong) will account for 28 per cent,with mainland China’s share rising sharply. South Korea and theAssociation of South East Asian Nations (ASEAN), both withcontinually rising demand, will have to fight for the rest inpotentially tight regional and global markets. Emerging multipolarenergy-supply rivalries in Asia could have a particularly severeimpact in Northeast Asia, where energy deficits are often intrac-table and political relations delicate.

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China

There are powerful factors that could force offshore oil ontoChina’s political front burner. The incentives for China to developoffshore oil rather than onshore reserves include the fairly shallow,easily worked continental shelf and the closeness of offshore oilbasins to domestic demand centres and facilities for transportationof exports. Other factors likely to push China’s oil search offshoreinclude the lack of significant success in China’s other offshore(and onshore) areas, the growing evidence that the East China Seacontains petroleum, the growing uncertainty with respect toMiddle Eastern supplies, increasing foreign oil company interestin this last ‘frontier’, and China’s own growing capabilities inoffshore oil exploration and development.

China has been sending rigs and seismic vessels on reconnais-sance surveys far from shore where Chinese claims directly overlapthose of its maritime neighbours. The Longjing 1 well was morethan 40 miles beyond a hypothetical Chinese–South Koreanmedian line suggested by Seoul as a basis for dividing up theresources of the Yellow Sea and adjacent areas of the East ChinaSea. Since Longjing 1 and Longjing 2, Donghai 1 and Pinghu 1in 1982, the Ministry of Geology has drilled at least one explo-ration well each year in contested areas of the East China Sea,some of them unannounced. Indeed, in February 1996, China’sKantan No. 3 drilled a test well and flared gas near Diaoyutai,some 570 miles beyond an equidistant line between the mainChinese and Japanese coasts.2

Japan

Best known and most long-standing are the energy vulnerabilitiesof Japan, which has never had a single major developed oil field.In the mid-1990s, Japan imported more than 99 per cent of its

Table 12.1 Emerging Asian oil import rivalry

Share of total Asian oil imports (%)

Importing Nation 1992 2000 2010

Japan 77.4 53.2 36.5China – 10.9 19.4Taiwan/Hong Kong 10.0 9.7 9.0Korea 21.0 20.3 18.3ASEAN – 5.9 16.9

Source: APEC International Advisory Committee for Energy Intermediate Report,1 June 1995.

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oil. Japan’s proportion of imports to overall energy consumptionis 85 per cent, currently the highest proportion among majorindustrialised nations.

Japan’s fuel import bill was more than $US50 billion by themid-1990s, even with all the conservation of the 1970s and the1980s taken into account. Oil accounted for more than half ofthat total, even at $US20 a barrel. If oil prices returned to thelevels of the 1970s and 1980s, the burden on Japan would beeven greater.

Given the massive—nearly $US4 trillion—scale of the Japaneseeconomy, Japan’s lack of energy resources naturally has a majorimpact on global and regional energy markets. Japan importsnearly three times more oil than any other nation in East Asia,and almost two-thirds of the liquefied natural gas movingin international trade. Since 1987 Japanese oil demand has risen5 per cent per year, adding 900 000 barrels per day to Asianregional requirements.

South Korea

South Korea has large energy-consuming petrochemical, steel andship-building industries, and a growing middle class increasinglyaddicted to driving. Oil demand has risen 20 per cent annually,and petrol demand, propelled by a 22 per cent annual increase invehicle registrations since the late 1980s, soared 29 per cent peryear.

Overall, South Korea tripled its per capita consumption ofenergy from 1975 to 1991, to almost 2200 kilograms per capita.This constituted an import bill of $US13 billion, roughly tripleJapan’s present energy import bill relative to overall national GNP.As a smaller nation, South Korea has had even more troublecompeting for oil in time of shortage. This was graphically clearduring the two oil shocks of the 1970s and during the Gulf crisisof 1990–91.

The maritime dimension

Since the late 1960s, the marine awareness of nations has beenenhanced by technological advances in marine use and resourceexploitation capabilities; increased expectations of benefits frompotential ocean resources; and perceptions that the ‘freedom ofthe high seas’ was advantageous to those countries with theknowledge, capital and technology to harvest ocean resources.This enhanced marine awareness has resulted in widespread

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unilateral extensions of national jurisdiction over ocean resourcesout to 200 nautical miles or more from shore. All the coastalcountries in Asia have now extended their maritime jurisdictions,leaving real winners and losers and many areas where claimsoverlap. As a result, Asia can no longer be thought of as mainlandand islands separated by expansive seas. Indeed, these extendedjurisdictional claims have produced new, sometimes unfriendly,maritime neighbours.

Asian coastal states are now engaged in efforts to identify andpursue their national development interests in the ocean arena.But the superimposition of a mosaic of national policies ontransnational resources and activities multiplies the possibilitiesfor international conflict. The interest of the developed world inthe resources which have come under coastal state jurisdiction—particularly oil and sea space—may exacerbate intra-regionaltensions. Indeed, extension of jurisdiction has opened a Pandora’sbox of continued uneven growth; volatile mixtures of competition,nationalism and militarisation; potential outside power involve-ment; and environmental degradation.

The geography of political entities in Asia is remarkably mar-itime. With extension of jurisdiction, this geography presupposesthere will be real conflicts and possibly explosive resource in-equities. For example, several countries in Southeast Asia havegained enormous marine areas with extended jurisdiction.Although maritime area gained is not by itself a measure ofresource wealth, it is indicative of windfall advantages. The largestof these gains were made by Indonesia, the Philippines, China andVietnam; others, such as shelf-locked Cambodia, Brunei, Singaporeand Thailand, and landlocked Laos were much less fortunate.Malaysia, although gaining considerable area, has been divided byIndonesia’s Natuna salient.

Asian countries formally claiming geographic disadvantage inLaw of the Sea negotiations due to extended jurisdiction includeLaos, Mongolia, Cambodia, Thailand, and Singapore. Laos andMongolia desire guaranteed marine access as well as compensatoryaccess to neighbouring countries’ marine resources. Cambodia isshelf-locked and has a restricted coastline, and Brunei is nearlyshelf-locked; both are zone-locked and have marine access onlyon a semi-enclosed sea. Thailand is both shelf-locked and zone-locked in the South China Sea. Moreover, the Thai distant waterfishing grounds in the South China Sea have come under Malay-sian, Cambodian, Vietnamese and Indonesian jurisdiction.

All those nations which have extended their jurisdiction willnow have to delimit their sea boundaries with their maritimeneighbours. Because tiny flyspecks on a map may be used as a

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basis of claims to 200 nm exclusive economic zones (EEZs),disputes over ownership of such islets—e.g. Tokdo/Takeshima inthe Sea of Japan, the Senkakus/Diao-yu-tai in the East China Sea,and the Spratlys and the Paracels in the South China Sea—haveintensified, and even affected international relations.

Potential conflict over petroleum

Many of the areas of overlapping claims harbour good oil andgas. Increasing energy needs, decreasing indigenous energy suppliesand a greater reliance on foreign oil are spurring offshore explo-ration for new sources throughout Asia. Thus major problems arebrewing as exploration and drilling extend farther offshore intodeeper and disputed waters and as international oil companiesjoin the hunt. Although maritime issues are generally a relativelyminor part of the regional strategic picture, the tenuous relationsbetween many of the states and the likelihood of petroleum indisputed continental shelf areas mean that such maritime issuescould become the ‘tail’ that wags the ‘dog’. Examples aboundthroughout the region.

In March 1982, Cambodia protested Thailand’s granting ofconcession areas on Cambodia’s claimed continental shelf toAmoco and declared that: ‘Any foreign company which searchesfor oil on the Kampuchean continental shelf without Kampuchea’spermission will be responsible for all consequences which mayarise from their illegal actions’.3

In the Spratlys, perceived potential oil is a factor in thedisputes. China, Taiwan and Vietnam each claim all the islands,reefs and rocks in the main Spratly archipelago that stand oremerge above sea level, each government arguing that these fea-tures have long been part of their territory. The Philippines alsoclaims the islets within a slightly more limited area it callsKalayaan (‘Freedomland’). China, Taiwan, and the Philippinesclaim submerged features in the Spratly region as well. Malaysiaclaims seven features outright in the southern Spratlys becausethey fall within its continental shelf boundary. Brunei’s EEZ claimtakes the form of a corridor extending 200 nm from an arbitrarypoint off its coast, enveloping Rifleman Bank as well as a smallcorner of the Philippines-claimed Kalayaan. Military forces ofVietnam occupy 21 to 24 features, those of China 8 or 9, thoseof Taiwan 1, those of the Philippines 8 and those of Malaysia 3to 6 including Louisa Reef. China’s February 1995 occupation ofthe Philippines-claimed Mischief Reef triggered an international

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row that pushed the South China Sea disputes onto the ‘frontburner’ of ASEAN and United States Asian security worries.

Some argue that news reports of enormous commercial oil andgas reserves in the Spratlys are greatly exaggerated. It does appearthat the reports of major hydrocarbon potential are based oninsufficient information and that the Spratly area is not a highpriority for major oil companies at this time. It also needs to berecognised, however, that oil companies often downplay the poten-tial of frontier areas, hoping for more liberal and lucrativecontract terms. On the other hand, governments and speculatorstend to play up the potential of their frontier areas in order toattract investment and exploration there. This posturing mayexplain the difference in views between Chinese and Philippinegeologists who are optimistic about the potential in the Spratlys,and some major oil companies which are rather pessimistic.

With regard to the concern that the water is too deep forcommercial attractiveness, about 4000 square miles of seabed liesunder less than 200 metres of water on the Reed Bank and nearbybanks. Still more seabed in the Spratly region lies within the1000-metre isobath. Concessions are being let in deep water inand adjacent to the Spratlys, e.g. by the Philippines to Kirklandand Alcorn (for a desktop study only), by China to Crestone(recently taken over by Benton), by Vietnam to Conoco, and byMalaysia to Sabah Shell. It is true that the size of reserves mustbe large to justify the expenses of deep-water drilling, perhaps100–150 million barrels at a lifting cost of $US10/barrel. Theinitial estimated size of the 1 West Linacapan strike situatednorthwest of Palawan on the geologic margins of the Spratly blockis in this range, although doubts have now arisen over the field’sviability. Oil prices will certainly go up at some point and liftingcosts may be reduced. The conclusion is that it is not wise tomake public ‘guesstimates’ on the oil potential in this area onscant second-hand information—one way or the other.

The granting of hydrocarbon concessions in disputed oceanareas is a common but provocative way for claimant states toexercise jurisdiction. Requirements that the concessionaire conductactive work are frequently suspended pending solution of conflict-ing claims, but during the 1970s and early 1980s, Amoco, Salenand Philippine Oil Development Company drilled wells on theReed Bank under concessions granted by the Philippines. In thelate 1980s, Kirkland Oil Company received a geophysical surveyand exploration contract from the Philippine Government coveringabout 6000 square miles including most of the Reed Bank, and aseismic survey was completed in June 1995. China has reportedlyeven drilled a well—Nanyang #1—on Fiery Cross Reef. The May

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1992 concession granted by China to the Crestone Energy Cor-poration in the southwest corner of the South China Sea—nowsubsumed by Benton Oil Company—has unambiguous workrequirements such as seismic surveys, an activity requiring aphysical presence in the concession area. Unopposed operationsin the concession, particularly drilling, might demonstrate effectivecontrol over the area, which is one criterion for ownership.

Vietnam has also attempted to drill in that block, apparently toreinforce its claim. In July 1994, Vietnam delivered two ‘economic-technological service stations’ to the Vanguard Bank. It then hiredVietSovpetro to drill for oil in the Crestone concession. China hadearlier pledged to protect Crestone’s operations there with force, ifnecessary, and did blockade the VietSovpetro’s rig to prevent foodand supplies from reaching it. When Conoco initially negotiated forVietnam’s blocks 133, 134 and 135, which overlap the Crestoneconcession, China threatened to take retaliatory action against theinterests of Conoco’s parent—Dupont—in China. Meanwhile, aconsortium including Mobil Sekiyu (a Japanese subsidiary 100 percent owned by Mobil Oil Corporation of the United States), thegovernment-owned Japan National Oil Company and several otherJapanese oil companies have a financial stake in Blue Dragon—apromising nearby structure let by Vietnam but also claimed by China.Mobil has a three-well commitment for Blue Dragon and China’sMinistry of Geology announced it was also planning to drill the BlueDragon structure. A clash is possible.

Countries must and do think long term and multi-dimension-ally, particularly when ‘territory’ is involved. For example,resources other than petroleum may eventually be discovered orexploited, such as deep seabed minerals or the energy potentialcreated by marked vertical temperature differences in the watercolumn (Ocean Thermal Energy Conversion). It is thus doubtfulthat the claimants would dampen their interest in this area simplybecause the oil potential may be modest.

In the Gulf of Tonkin, Vietnam asserts that the 1887 Sino–French Convention on the delimitation of the frontier betweenChina and Tonkin (Vietnam) made longitude 108º3’3"E the ‘seaboundary line’ between the two countries in the gulf. In response,China stated that

the sea area here has never been divided, yet you assert that it has.You insist on drawing a dividing line close to our Hainan Island,so as to occupy two-thirds of the Beibu Gulf (Gulf of Tonkin) seaarea. Being neither fair nor reasonable, this is unacceptable to us.4

Problems continue. In March 1997 China sparked a diplomaticrow when it sent an oil exploration ship across the median line

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in the gulf. And in November 1997, Hanoi protested China’saward of a concession to US-based Atlantic Richfield5 whichextends into Vietnamese-claimed waters.

Northeast Asia is certainly not immune to maritime disputeswhich can rattle international relations. In late 1996 and contin-uing through 1997, the Tokdo/Takeshima dispute raised its uglyhead, stressing already fragile South Korea/Japan relations. NorthKorea got involved, warning Japan not to seek ‘territorial expan-sion’, and South Korea conducted air and naval exercises aroundthe disputed islets in a clear attempt to intimidate Japan intodropping its claim.6

Tokdo (in Korea) or Takeshima (in Japan) are two tiny islets29 kilometres east of South Korea’s Ullung Do and 50 kilometresnorth-west of Japan’s Oki Islands. Tokdo is uninhabitable andunder most scholars’ interpretation of the Law of the Sea Con-vention should not have an EEZ or continental shelf, though itmay have a 12 nautical miles territorial sea. Since 1952, the twocountries have disputed the ownership of Tokdo, which maypermit claims to about 16 600 square nautical miles of sea andseabed. It is occupied by South Korea.

At stake in the Sea of Japan is a polyhedron encompassing thenortheastern Tsushima Basin, and the southwestern Yamato Riseand Trough, both of which may have petroleum potential. Thearea is also a rich fishing ground. If Japan owns Tokdo, it willobtain a small northeastern portion of the Tsushima Basin andalmost the entire Yamato Rise and Trough. If South Korea ownsTokdo, then it would gain the northeastern portion of theTsushima Basin as well as the southwestern end of the YamatoRise and Trough.

Failure to agree on a modus operandi for Tokdo/Takeshima andthe surrounding waters and thus on a maritime boundary led inJanuary 1998 to Japan’s unilateral termination of its fisheries agree-ment with South Korea. South Korea then lifted all restrictions onSouth Korean fishing boats operating near Japan’s waters. Inresponse, Japan began arresting South Korean boats fishing withinits territorial seas. This in turn inflamed the South Korean public,resulting in anti-Japanese demonstrations and calls by politicians forSouth Korea to recall its ambassador to Tokyo.7

The Senkakus in the East China Sea erupted into the news inJune 1996 when China and Taiwan protested Japan’s declarationof a 200 nautical mile EEZ around the islands. The issue cameto a boil in September and October 1996 when a right-wingJapanese group erected a lighthouse on one of the islands. Anti-Japanese demonstrations broke out in Hong Kong and Taiwan,with Hong Kong and Taiwan activists eluding Japanese coastguard

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vessels and planting the flags of China and Taiwan on one of thefeatures. Japan and China struggled to keep the issue from causinga confrontation between two Asian giants, but Japanese national-ists repeated the landing in June 1997. Earlier, a flotilla of Taiwanand Hong Kong protest vessels was blocked by the Japanesecoastguard from landing on the disputed islands. In September1997, Hong Kong activists again set sail for a fresh ‘raid’ on theDaioyu Islands. But their vessel had to put in to Taiwan for repairsand the ‘raid’ was aborted.8

The three have overlapping claims in the East China Sea basedin part on their conflicting claims to the Senkaku Gunto (knownin Chinese as Diao-yu-tai), a group of five coral islands about90 nautical miles north-east of Taiwan. Possession of the islandscould confer title over 11 700 square nautical miles of continentalshelf with good petroleum potential. Perhaps not by coincidence,the northern limit of Taiwan’s claim includes almost all thepotential oil-bearing sediment of these basins. At stake is atrapezoidal area encompassing portions of at least three majorsub-basins, and which has good prospects in its northern two-thirds and in its south-western corner.

Even if the Senkaku issue were settled, there would remain apotential difficulty. The equidistant line between the undisputedislands of Japan and the Chinese mainland leaves on the Japaneseside of the line 9000 square nautical miles of Asian continentalshelf landward of the 200-metre isobath. China claims the broadadjacent continental shelf and argues that the shelf ends at theOkinawa Trough—near the Ryukyu (Okinawa) Islands—withwater depths of 2000 metres. Japan argues that the trough is justan incidental depression in a continuous continental margin be-tween the two countries and that the equidistant line is theapproximate boundary.

Many of these disputes have an underlying commonality.9 Theyare primarily driven and fuelled by domestic politics. Indeed, thisis what makes them much more dangerous than they should be.

While not discounting the importance of competition overperceived resources in the disputed waters around the variousislands, resource issues are not the fundamental barrier to achiev-ing a resolution of these disputes. Rather, the disputes areprimarily about unassuaged historical grievances and the politicsof national identity. As an indication of the primacy of nationalismin these disputes, if either side in any of the disputes were preparedto concede sovereignty, there is little doubt that the other wouldbe generous in granting a share of any resources as compensation.

Somewhat paradoxically, democratisation in South Korea andTaiwan has made these sovereignty disputes more rather than less

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difficult to resolve. Strong governments unconstrained by domesticconstituencies can make deals more easily than those that mustheed domestic political concerns. It is no accident that authoritar-ian China (and its citizens), which can and does control domesticprotest, responded in a more measured way to the Senkakus/Diao-yu-tai incidents in 1996 than did Taiwan. Democratic governmentsare by definition susceptible to domestic political pressures, whileweak democratic governments facing elections, as were Japan andKorea in the 1996 flare-ups, are most susceptible to domesticpressure.

These sovereignty disputes have been exploited for domesticpolitical ends that have little to do with the islands in question.In the Senkakus/Diao-yu-tai dispute, for example, Taiwan’s NewParty used the fishing disagreements and the emplacement of thelighthouse by Japanese rightists to attack President Lee Teng-huifor being too ‘soft’ on Japan. The timing of the incident also madeit difficult for Japanese Prime Minister Hashimoto to be concili-atory. An election was looming in Japan and Hashimoto, himselfa nationalist who had caused considerable controversy by visitingthe yasukuni war shrine, could not afford to be seen to be softon such a sensitive sovereignty issue.

The February 1996 flare-up of the Takeshima/Tokdo disputealso took place just weeks before elections in South Korea. Becausepopular antipathy towards Japan is widespread in Korea, compet-ing political parties and the government seized the opportunity totry to outbid each other in their condemnation of Japan.

China also has its own domestic reasons for pursuing suchissues. Although these are perhaps best exemplified by its actionsin the Spratly/South China Sea disputes, they are applicable to theDiao-yu-tai dispute as well. Beijing seems to want to demonstrateto its increasingly assertive provinces, as well as to the democracymovements in China and Hong Kong and the independence move-ment in Taiwan, that it is firmly in control of national policy.China’s actions seem to be the result of a rising tide of nationalismthat is replacing socialism as the preferred societal glue. In thisview, the economic reforms that Deng pushed put China’s conser-vatives on the defensive, and they are using nationalistic issues,such as sovereignty over the Spratlys (Nansha) and the Diao-yu-tai, to reassert themselves.

Given that swift resolution to these disputes is impossible, themost pressing immediate task is to find effective mechanisms tomanage them and prevent any escalation of incidents that cannotbe prevented. The key problem lies not so much with governments,but nationalist political constituencies within the polity of eachstate and the pressures they can bring to bear. In the short and

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medium term, it is therefore critically important that the govern-ments involved in these disputes take seriously the fact thatgovernments of other claimant states are also constrained bydomestic political considerations. There has been a marked failureto do so in the past.

Second, while democratic governments may feel unable or beunwilling to prevent citizens embarking on legal, but provocative,actions like the 1996 erection of a lighthouse on the Senkakus,they must refrain from conferring official status on such actions.Moreover, if they disapprove of them, they should have thecourage to say so publicly. If this is perceived to be too politicallydifficult, they should at least ensure that their disapproval iscommunicated to the government of the rival claimant state.

Third, greater emphasis needs to be placed on the role ofpreventive diplomacy. This is an issue now being taken up by theASEAN Regional Forum (ARF) and the Council on SecurityCooperation in the Asia–Pacific, but so far with little practicalimpact on policy. None of the claimant states has indicated anyinterest in taking the disputes to formal legal adjudication, but itmight be still possible via the good offices of the chairperson ofthe ARF for an ‘eminent persons group’ to be created. Such agroup should preferably undertake its preventive diplomacy taskduring a spell of relative calm. The task would not be to seekresolution, but rather to consider ways of managing the disputenon-violently and preventing or at least controlling escalationshould there be more flare-ups in the future.

Fourth, if the creation of an eminent persons group is consid-ered premature, Track-Two meetings involving scholars, ‘thinktank’ analysts, and officials ‘acting in their private capacity’ couldbe set up to investigate a range of confidence-building measuresdesigned to foster conflict management and to prevent conflictescalation rather than to seek a long-term solution. The Indones-ian-hosted Track-Two effort, the South China Sea Working Group,which deliberately avoids engaging in discussions on sovereigntyissues, provides a possible precedent. Here, the focus has been onbuilding confidence between claimant states by encouraging mar-itime cooperation between them in non-controversial areas suchas marine scientific research, environmental protection, includingbiodiversity, fisheries assessment and management, and mineralresource assessment. The focus is on what is achievable at thetime. Although these are formally ‘Track-Two’ meetings, officialsfrom the claimant states take part under the polite fictionthat they are acting in their ‘private capacity’. The hope is thatTrack-Two cooperation will form the eventual basis for formalofficial cooperation.

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Domestic politics is thus a prime and dangerous factor in thesedisputes. But domestic politics runs in cycles of intensity. Whenthe cycles in the respective nations reach their next commonpositive peaks, wise and courageous leaders must seize the oppor-tunity to hammer out a preventative modus operandi to managethese conflicts. The alternative is continued mutual suspicion,unstable relations, unmanaged resources and an increasing fre-quency and intensity of incidents, fuelling nationalist sentimentsand movements.

Possible cooperation

Most of the countries in Asia rely on multinational capital,technical expertise and equipment for offshore hydrocarbon devel-opment. While it is not feasible to estimate the precise effects ofunresolved offshore boundaries on the progress of hydrocarbondiscovery and development in the region, they are an importantfactor. Multinational or extra-regional government oil companiesare reluctant to invest in hydrocarbon development in disputedareas, particularly if the dispute is potentially serious enough tothreaten the security of their investment. Also, the conditions forexploitation and export of any oil found may differ markedlydepending on which nation controls the resource. Thus, resolutionof boundaries or muting of boundary disputes may be a prereq-uisite for major development of any hydrocarbon resources in suchareas, regardless of potential.

This is where the joint-development approach comes in. Thailandand Malaysia, Vietnam and Malaysia, Indonesia and Australia, andJapan and South Korea have all taken up this option. That is, theyhave agreed on the extent of the area in dispute, set aside the actualboundary question, and reached agreement on joint explorationand exploitation of hydrocarbons in the area of overlap. Thisapproach is supported by the Law of the Sea Convention, whichstipulates that pending agreement on the delineation of the continen-tal shelf or EEZ boundary, states shall make every effort to enterinto provisional arrangements of a practical nature and, during thistransitional period, not jeopardise or hamper the reaching of anagreement.

Perhaps the strongest reason for a state to opt for a jointundertaking is a sense of urgency or obligation to protect itsinterests in potential oil or gas deposits, combined with a desireto maintain good relations with another state which has an equallyvalid claim to the area. Joint development is an idea whose time

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has come and one which will look increasingly attractive as theneed for oil intensifies.

What are the prospects for a solution to the major remainingdisputes? In the eastern Gulf of Thailand, conflict is turning tocooperation. That is, joint development is now being explored byThailand and Vietnam, and by Thailand and Cambodia. However,the disputes between China and Vietnam in the Gulf of Tonkinand between China/Taiwan and Japan in the East China Sea stillseem closer to conflict than to cooperation.

The Spratly disputes hang somewhere between hope and fear.The status quo in the South China Sea is ‘leaking’ in China’sfavour. Further, China’s ‘salami’ approach of claims and occupa-tions has mitigated the reaction from other claimants because eachstep is so small and the costs of calling China’s ‘hand’ could bevery large. On a more positive note, Beijing’s behaviour in otherterritorial disputes indicates that it may simply be manoeuvringfor a stronger bargaining position and when other economic orsecurity interests override the narrow concerns in the Spratlys, itmay be willing to compromise. China’s strategy on this issueappears to be a combination of ambiguity, incrementalism, divideand dominate, selective use of force, and tactical timing. But it isnot clear that these dimensions are integrated or coherent. Andthe question of intent remains.

Regardless of intent, China’s actions—including the occupationof Mischief Reef—rattled ASEAN governments and drew theattention of the United States, Japan and even Russia, which isconcerned about the security of sealanes on which it depends forcommunication between its European and Asian parts.10 For thefirst time since the 1970s, the notion of China as a threat to theregion regained currency. A mini arms-buying spree in the regionis in the offing. The worst scenario is one of an increasedfrequency and scale of violent incidents endangering freedom ofnavigation along strategic sealanes and eventually involving theUnited States or Japan in the disputes.

China’s ability to use force is currently constrained by thepossible reactions of the United States, Japan and ASEAN, whichwould probably view any use of force by Beijing as confirmationof its intent to dominate the South China Sea. Although thePeople’s Liberation Army could probably dislodge the Vietnamesefrom the islands, defending the islands against a counter-attackwould be a logistical nightmare. Unless major oil or gas depositsare confirmed, Beijing is unlikely to squander its military resourcesand political capital to seize these barren flyspecks.

With the end of the Cold War and the widespread ratificationof the Law of the Sea Convention, there is now an opportunity

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to resolve the South China Sea disputes; however, it may beoverlooked. Indeed, these problems could well get worse beforethey get better. In particular, it is not yet clear whether China’sseeming change of heart regarding international law of the sea isthe product of a desire not to antagonise neighbours at a timewhen China’s relations with the United States are strained; aconsequence of present limited military capability; or a manifes-tation of a genuine interest in regional cooperation, inspired bythe priority of economic reform. The proof will be in the pudding.To truly instil confidence, China must follow up its soothing wordswith further positive actions.

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13 Policing the high seas:straddling fish stocks andhighly migratory speciesAnthony Bergin

POLICING THE HIGH SEAS

Any discussion of the topic of policing the high seas, particularlywhen it comes to the subject of the international law of fisheries,must of course start with the 1982 Law of the Sea Convention(LOSC). That treaty, which came into force on 16 November 1994and now has 116 parties, drew some very clear markers in theworld’s oceans. The 200 nm exclusive economic zone (EEZ)separates the high seas from those waters that are under theexclusive jurisdiction of the coastal state.

Inside that 200 nm zone the coastal state has the exclusiveauthority to conserve and manage fisheries, subject to generalobligations to prevent over-fishing and, where they exist, to allo-cate surplus fisheries to other nations. Outside the 200 nauticalmile EEZ line, all nations have the right to fish, but this right ismade subject to certain responsibilities and to general obligationsto cooperate in the conservation and management of the fishery.

The EEZ regime as reflected in LOSC is now accepted as partof general customary international law. We should not forget thatthis is a significant achievement. It ended many years of quitebitter disputes about the extent of coastal states’ rights to exercisejurisdiction over fisheries.

LOSC and unfinished business

Unfortunately, the general obligations regarding conservation andmanagement of fisheries in the Convention were not specific and

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comprehensive enough to protect a number of fish stocks. Overthe last 20 years we have seen a crisis in world fisheries. Asreported by the United Nations (UN) Food and AgriculturalOrganisation (FAO), about 70 per cent of the world’s fisheries arein need of urgent attention. Of the world’s 15 major marinefisheries regions, the catch in all but two has fallen and in four,the catch has shrunk by more than 30 per cent.1 At the same timewe have seen increasing demand for fish, problems with intensiveaquaculture, gross subsidisation of world fishing fleets, reflaggingand some violent conflicts on the high seas. In many areas highseas fishing states have ignored conservation measures and refusedto cooperate with other fishing states or adjacent coastal states inthe sustainable management of fishery resources. Such unregulatedfisheries have had serious impacts on stocks and catch levels incoastal waters.

With around 10–20 per cent of the world catch on the highseas, this area is seen by many fishing nations as the last frontieras their fleets are displaced from EEZs. The problem is aggravatedbecause there are few incentives to reduce fishing capacity. Thereare too many vessels chasing too few fish. The size of the world’sfishing fleet increased at twice the rate of the increase in the globalcatch between 1970 and 1990. FAO estimates that world-wide,governments underwrite the growth of national fleets with subsi-dies of the order of $54 billion annually—to catch $70 billionworth of fish.2 The problems of policing the high seas are com-pounded also by varying standards of flag state control. Morevessels are avoiding restrictions to regional agreements by adopt-ing a flag of convenience—a flag of a non-signatory to a regionalagreement or arrangement.

International response

The international community has responded to the crisis in marinefisheries by developing the necessary and more specific elaborationof the international legal responsibilities flowing from LOSC.These new instruments include the implementation of the provis-ions of the United Nations Law of the Sea Convention of10 December 1982 Relating to the Conservation and Managementof Straddling Fish Stocks and Highly Migratory Stocks—the UNImplementing Agreement (UNIA), the FAO Code of Conduct onResponsible Fisheries (covering all fishing operations, not simplyhigh seas fisheries) and the Agreement to Promote Compliancewith International Conservation and Management Measures by

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Fishing Vessels on the High Seas, which is part of the Code ofConduct.

Turning first to UNIA. From about 1990 there emerged anumber of problems in high seas fishing, specifically related toenforcement issues.3 The most well known of these are: Canadaversus the European Union (EU) on the Grand Banks over cod;Russia versus Poland in the Sea of Okhotsk over pollock; and theUnited States (US) versus a number of countries in the Bering Seaover pollock. In the early 1990s a number of countries, includingArgentina, Canada, Chile and Peru, passed legislation enablingnational enforcement action in the high seas which arguably wentbeyond the legal limits of the existing provisions of LOSC.4

At the 1992 Earth Summit in Rio de Janeiro, all nations joinedin the call for new international agreements to achieve sustainablemarine fisheries. Negotiations were held in six working sessionsunder the auspices of the UN between July 1993 and August 1995on straddling and migratory fish stocks.5 The main players were:a core group of coastal states (New Zealand, Argentina, Chile,Peru, Canada, Iceland and friends); distant water fishing nations(DWFNs) such as Japan, ROK, the EU and others (freedom tofish the high seas); the South Pacific countries—16 members ofthe South Pacific Forum Fisheries Agency (FFA), including Aus-tralia, that were concerned with highly migratory fish from acoastal state perspective; and the US, whose interests were mixed.The outcome of the negotiations was the UNIA which concernedboth straddling stocks and highly migratory species from both acoastal state and a DWFN perspective.

United Nations Implementing Agreement

As its name implies, UNIA builds upon the general fisheries rules ofLOSC as they relate to the conservation and management of strad-dling fish stocks and highly migratory stocks.6 This includes specieslike tuna, swordfish, billfish, marlins, oceanic sharks, mackerel andsquid, all of which inhabit both coastal areas and the high seas atvarious times during their life cycles. As specified in Articles 63 and64 of LOSC, the agreement recognises that these fish stocks must bemanaged throughout their range. Article 63(2) of LOSC providesthat for straddling stocks, the coastal state and the state fishing forsuch stocks on the high seas shall seek to agree upon the measuresnecessary for conservation on the high seas. Article 7 of UNIAimplements this general obligation further by requiring that theconservation and management measures established for the high seasand those adopted under national jurisdiction are to be compatible

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in order to ensure conservation and management of straddling fishstocks in their entirety.

UNIA provides for several factors that states are to take intoaccount in developing compatible conservation and managementmeasures. These factors include the conservation and managementmeasures adopted by the coastal state and those applicable onthe high seas; other agreed measures established by regionalorganisations; biological and geographic considerations; the de-pendence of the coastal state and other fishing nations on thestocks concerned; and the need to ensure measures do not resultin harmful impacts on living marine resources as a whole. Itcreates new ground rules for regional fisheries bodies. Parties mustagree on conservation and management measures, and allocationamongst their members, in addition to providing for greatertransparency and prompt resolution of disputes. UNIA prescribesthe ways in which coastal states and DWFNS are to cooperate.

Although UNIA establishes clear principles for high seas man-agement of straddling stocks and highly migratory stocks, itdelegates the task of developing and implementing detailed man-agement measures to regional fisheries management organisationsor arrangements. Membership of these organisations/arrangementsis open to all states and entities that have a real interest in thefishery concerned.

Most importantly the UNIA imposes strict requirements on stateswhose vessels fish on the high seas. The essential duties of a flagstate are to ensure that vessels do not engage in unauthorised orunlicensed fishing and that their vessels do not fish in an areagoverned by an organisation or an arrangement of which the flagstate is not a member unless it can ensure that the conservation andmanagement rules of the organisation or arrangement will beobserved. Flag states are also required to ensure that their measuresare compatible with the monitoring, control, and compliance systemsof sub-regional, regional or global regimes.

UNIA limits the freedom to fish the high seas. The tighteningof enforcement regimes, particularly with regard to countries notparty to a regional management body or arrangement, representsan important step forward in enabling the international commu-nity to conserve stocks on the high seas. It provides for the firsttime rights of enforcement by non-flag states on the high seas.

Breaking new ground in international law

Traditionally the rule is that ships on the high seas are subject tothe exclusive jurisdiction of the state whose flag they fly. The only

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exceptions relate to pirate ships or ships taken by piracy, the rightof visit, the right of hot pursuit, or cases of unauthorised broad-casting from the high seas. In the case of narcotic drug traffickingat sea the 1988 Convention Against Traffic in Narcotic Drugs andPsychotropic Substances provides for boarding and searching bya non-flag state but this must be preceded by agreement in theform of an existing or ad hoc treaty or otherwise with the flagstate concerned.

UNIA breaks new ground in international law as it relates toenforcement mechanisms for the high seas.7 It provides that a statewhich is a party to a regional conservation and managementagreement may board and inspect a vessel of another party to theregional agreement, or another party to UNIA, fishing in the highseas covered by the regional agreement. If a violation is found,the inspecting state should notify the flag state and the flag stateis required to investigate the violation and take enforcement actionif appropriate. The flag state must, within three days, take actionby itself or authorise the inspecting state to act on its behalf. Ifthe flag state fails or refuses to exercise either of these twooptions, the inspecting state may investigate the vessel further andin the case of a serious violation, which is defined, may requirethe vessel to go to the nearest port. Where there are reasonablegrounds for believing a vessel on the high seas is without nation-ality, the inspecting state may board and inspect the vessel and,if evidence warrants, take enforcement action.

The object of this provision is to ensure that conservation andmanagement measures are observed by strengthening the hands ofthose who share the responsibility.8 At the same time, UNIAprovides that this provision should not be abused or used for theharassment of distant water vessels for which the inspecting statemust take responsibility. The details of these provisions are con-tained in articles 21 and 22 of UNIA and will apply automatically,unless within two years from the date of the adoption of theagreement (i.e. 4 August 1995), the parties to a regional agreementestablish their own procedures for boarding and inspection whichare consistent with procedures in the agreement.

The agreement also recognises the authority of the port stateto take measures to promote effectiveness of regional conservationand management measures. The state may adopt regulations pro-hibiting landings and transshipments if those measures areundermined and it can inspect documents, fishing gear and catchon board fishing vessels that have entered the port. The LOSC isitself without any similar provisions applying to port states andvessels violating international fisheries conservation and manage-ment measures, though the concept is clearly modelled on the

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provisions in the convention which regulate harmful dischargesfrom ships.

UNIA is the first global instrument to establish a frameworkprocedure allowing non-flag states to board and inspect fishingvessels of another state on the high seas. Parties to UNIA agreeto have their vessels subject to inspection by another party on thehigh seas even if they are not party to regional measures. Bybecoming parties to UNIA a state would be bound to respect theconservation measures for straddling stocks and highly migratoryspecies which two or more states may adopt for any region of theworld, as far as such measures are consistent with the rules ofinternational law as reflected in the LOSC.

Ratification or accession by 30 states is required to bring UNIAinto force. To date it has received 18 ratifications and been signedby 59 states. Japan and Korea have signed it and the US hasratified. Australia signed UNIA on 4 December 1995 and iscurrently determining what the full legal implications of ratifica-tion are.

Compliance Agreement

The Compliance Agreement9 is another significant element inelaborating the rules of international law to high seas fishing. Thisagreement, which was adopted in 1993, is part of the FAO Codeof Conduct of Responsible Fisheries and is the only part of thecode that is legally binding. Its main objectives are to impose uponall states whose vessels operate on the high seas an array ofobligations designed to make the activities of those vessels consis-tent with conservation and management needs and, in addition,increase the transparency of all high seas fishing operationsthrough the collection and dissemination of data. States arerequired to maintain records about their vessels and the activitiesof those vessels, and to make this information available to inter-ested parties. The Compliance Agreement is designed to combattwo practices. First, the practice of reflagging to a country not amember of regional organisations as a means of avoiding fishingrestrictions placed on member states, and second, the growingpractice of registering newly built high seas fishing vessels in statesthat are not members of the major fishery organisations becausethese states are not bound by the regulations of those bodies. TheCompliance Agreement requires 25 instruments of ratification tocome into force and to date it has received only nine and the EU.

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Australia and high seas policing

Australia’s interest in fisheries compliance on the high seas ismainly that of a coastal state that wishes to control the unregu-lated high seas fishing of others. Australia has itself a very limitedcapacity for high seas fishing, although in the past Australian tunavessels have operated in the South Pacific. There is a limitedAustralian presence in the Southern Ocean. Australian trawlersfish high seas stock of orange roughy in the Tasman Sea.10

In the future the Australian industry may wish to develop ahigh seas capacity. Australia may also want to encourage anAustralian port to be the base for Southern Ocean fishing. Sowhile Australia has an interest in meeting its international obliga-tions it would want to do this without providing a disincentiveto Australian fishing operations beyond the EEZ. Australia wouldobviously not wish to impose rules so stringent that a potentialAustralian high seas fleet saw it in its interests to reflag.

While Australia has the potential to develop a high seas fleet,DWFNs, on the other hand, are active in all nearby oceans andthere are valuable transboundary resources: in the south, southernbluefin tuna and Antarctic fish stocks, e.g. icefish, toothfish; inthe east, orange roughy in the Tasman Sea and South Pacific tunastocks; in the north, shared stocks of tuna with Papua New Guineaand Indonesia; and in the west, tuna in the Indian Ocean.

For Australia the most important regional fisheries regimesconcerned with high seas issues are the Commission for theConservation of Southern Bluefin Tuna (CCSBT), the FFA, theIndian Ocean Tuna Commission (IOTC) and the Commissionfor the Conservation of Antarctic Marine Living Resources(CCAMLR).

Illegal fishing around Heard and McDonald islands

The most difficult recent enforcement issue for Australia has beenunregulated fishing in the 200 nautical mile fishing zone aroundHeard and McDonald Islands (HIMI). HIMI is located around4000 kilometres south-west of Perth. This is not a high seasissue as such, because the fishing has taken place within the200 nautical miles fishing zone of HIMI; however, because theforeign vessels are also operating in areas of the high seas as well(toothfish straddle areas of the high seas as well as areas undernational jurisdiction), a longer term solution will require controlof high seas operations in the southern oceans.

Australia has been developing the fishery over the past 18 months

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and during 1996/97 set total allowable catches for Patagoniantoothfish at 3800 tonnes and for mackerel icefish at 311 tonnes.11

The two Australian vessels operating in the region are subject tostrict conditions, which include being restricted to trawling, carriageof observers, installation of vessel monitoring systems, detailedshot-by-shot logbook and electronic reporting of catches, prohibitionon the discharge of fish by-product to minimise the interaction withseabirds, limits on by-catch, and prohibitions on the discharge ofkitchen waste to minimise the possibility of the introduction of exoticorganisms at HIMI.

The first confirmed reports of illegal fishing at HIMI werereceived by Australian vessels, which first frequented the area inApril 1997. Since then there have been over 20 incidents ofreported illegal fishing. The illegal catch could be as much as fivetimes the sustainable catch. The illegal fishing is using longlinegear which could be killing up to 10 000 seabirds annually. Illegalvessels also pose a risk for the introduction of exotic species toHIMI, as they do not meet waste disposal requirements.

It is suspected that the potential for illegal fishing around HIMIis high. There is a high market value for toothfish. Surveillanceand enforcement in the west, in particular by the French in theirEEZ surrounding Kerguelen Islands, have forced the illegal fleetinto an area subject to less surveillance.

As a result of these concerns, Australia mounted a navaloperation during October 1997, which led to the apprehension oftwo vessels. The Salvora and Aliza Glacial, registered in Belizeand Panama respectively, are alleged to have been fishing incontravention of Australian laws and were escorted to Fremantle,Western Australia. Charges have been laid against the masters andfishing masters of both vessels and if convicted they could facefines up to $275 000 and confiscation of vessels, fishing gear andcatch. On 21 February 1998 another vessel, the Big Star, registeredin the Seychelles, was also apprehended in the fishing zone offHIMI.

In order to address these problems a number of options areopen. One is to provide some long-term response capacity atHIMI. This no doubt will be a significant factor in planning forthe kind of ship that replaces the Fremantle class patrol boatsfor the Royal Australian Navy (RAN). Another option is toexplore the feasibility of cooperating on surveillance and enforce-ment activities with other like-minded nations who have aninterest in sub-Antarctica, such as New Zealand, Norway (BouvetIsland), France (Kerguelen Islands) and South Africa (PrinceEdward Islands). These countries have already formed an informalgroup named the Eastern Antarctic Coastal States to discuss the

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issue of unregulated fishing. Australia could continue to press formeasures in international forums and other agreements aimed atimproving the management of toothfish on a sustainable basis.

Role of CCAMLR

The role of CCAMLR in policing the southern oceans is critical.The two vessels arrested in October 1997 off HIMI, while regis-tered in Panama and Belize, are owned by companies based inNorway and Spain. Both countries are members of CCAMLR.CCAMLR could be much more proactive in areas such as insistingon vessel monitoring systems, vessel registers, placing non-nationalinspectors on vessels while they are in the convention area andthe EEZs of members, and setting national quotas (as opposed tothe current CCAMLR approach of the setting of total allowablecatches and letting countries compete). Members of CCAMLRcould refuse to land catch from vessels not party to conservationmeasures. Multilateral trade measures are also a possibility. TheInternational Commission for the Conservation of Atlantic Tunas(ICCAT) has recently put in place a measure requiring its membersto impose trade measures against three nations, Belize, Hondurasand Panama, all of whom seem determined to have vessels fishingin a manner that diminishes the effectiveness of ICCAT con-servation measures for bluefin tuna. Finally, CCAMLR partiescould take advantage of the provisions outlined earlier in UNIAto board and inspect vessels where there is suspected violation ofconservation measures.

It should be noted that CCAMLR can be regarded under UNIAas a regional fisheries management organisation.12 CCAMLR hasa regional focus; covers areas of high seas as well as areas undernational jurisdiction; has straddling stocks such as toothfish,lantern fish and krill which are harvested in the convention area;manages fish resources within the convention area; and is inter-nationally recognised as a regional management organisation.CCAMLR is in a strong position therefore to draw on the benefitsoffered by UNIA in areas such as improved cooperation betweenstates, strengthened arrangements for data sharing, and enhancedsurveillance.

South Pacific issues

Currently the South Pacific sustains one of the largest tuna fish-eries in the world. Forty-two per cent of the world tuna catch is

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taken from the region. The EEZs make up 81 per cent of the totalarea of the region and the land area is 2 per cent. Only 17 percent of the total area is high seas. But a substantial share of thecatch of each species of importance to regional countries is takenin the high seas, raising concerns about the potential for the stocksto become exploited through uncontrolled fishing on the high seas.For instance only 20 per cent of the albacore taken in the regionis caught in the EEZs of the island countries, while 80 per centof skipjack and yellowfin is taken within the EEZs. Bigeye is amajor problem due to significant uncertainty about its distributionand it is unknown whether there is a single or multiple stocks. Ifit is a stock peculiar to the Western Pacific, then most of thecatches are likely to be taken within zones; however, if it is partof a Pacific-wide stock, the large majority of catches are taken onthe high seas. It is likely to be several years before the stockdistribution issue is resolved.

The South Pacific countries are negotiating with DWFNs overregional fisheries management arrangements and have set a dead-line of June 2000 to conclude these negotiations. Critical will behigh seas compliance issues.13 While some reporting of US andother vessels on the high seas in the region occurs, full reportingwill be required for effective management of the tuna resourceson the high seas. Of particular concern in the region is anincreasing use of fishing vessels registered under a flag of conve-nience. The Niue Treaty on Fisheries Surveillance and LawEnforcement in the South Pacific Region, which entered into forcein 1993, provides a framework for regional maritime surveillanceand enforcement in national zones in the South Pacific. In theorythe Niue Treaty could be extended to cover other states in theregion, including high seas fishing states and high seas areas. Thiswill require cooperation on matters such as boarding and inspec-tion procedures; reporting of inspections to coastal states, flagstate, or fishing entity; duties and responsibilities of observers;and establishment of compliance and enforcement points of con-tact for each coastal state, flag state and fishing entity. It maymean that the 22 Pacific class patrol boats donated by Australiato 12 island countries could become involved in high seas inspec-tions. Or it may mean an international enforcement bodycomposed of the parties to any final arrangement is established.In effect, a regional coastguard undertaking high seas inspectionscould be formed.

One issue in terms of high seas compliance that warrantsnoting is the commitment of regional countries to the use of vesselmonitoring systems (VMS). The island countries are now commit-ted to making the carrying of a VMS a condition of licence within

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their zones. However, the issue of VMS on the high seas is oneof great sensitivity. These issues relate mainly to security andexchange of data from high seas VMS. The introduction of VMSon the high seas is likely to take some time, since it is closelylinked to the agreement on overall high seas management arrange-ments. If a joint surveillance authority were to emerge under theregional arrangement, such an authority should have access toVMS information.

Southern bluefin tuna

The majority of the world catch of southern bluefin tuna (SBT)is in the high seas, although Australian vessels are not fishing SBTon the high seas. SBT was until recent years managed under avoluntary trilateral arrangement between Japan, Australia andNew Zealand. These countries, however, have now formalised thatarrangement and are the founding members of CCSBT, an inter-national organisation that sets a total allowable catch and thenational allocations for its member countries.14 In 1997, the totalallowable catch of SBT was 11 750 tonnes—5265 tonnes allocatedto Australia, 6065 tonnes to Japan, and 420 tonnes to NewZealand. Japan has continued to press for a 3000-tonne increasein the global total allowable catch, as well as a 2010-tonneunilateral experimental fishing program above and beyond its totalquota. Japan has announced that it was preparing to start exper-imental fishing in June 1998. Australia believes that the SBT stockis severely depleted and that the proposed catch increase is unsus-tainable and that the experimental fishing program has majorflaws relating to its statistical validity and scientific merit. Aus-tralia has advised the Japanese Government that a bilateralagreement to fish SBT in the Australian EEZ will not be concludeduntil quotas for SBT have been agreed with the CCSBT.

Korea, Taiwan and Indonesia are all catching SBT on the highseas. The challenge in the future will be to get these countries intothe CCSBT or at least get the flag state to implement the conser-vation measures set by the CCSBT. This would be greatly assistedif these other fishing nations were to become parties to UNIA.No doubt countries such as Korea will, however, hold back fromsigning UNIA until they see what CCSBT and other regionalbodies decide on allocation. (On the other hand, there may be anincentive for countries such as Korea to join on the grounds thatthere may only be the ‘crumbs’ left to allocate.)

In admitting any new entrants to the CCSBT, the allocationissue is the most difficult issue. Allocation is an issue not really

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dealt with by UNIA. The current arrangement under the CCSBTis that the parties stay at the table until it is decided. Under thetreaty the CCSBT can consider the following criteria in allocationissues: relevant scientific evidence (e.g. stock status); the need fororderly development of SBT fisheries (e.g. who needs the fish most,whose catch is most valuable, has everyone caught last year’squota?, the management standards in each country); the interestsof the parties through whose EEZs SBT migrates (e.g. developedcoastal states such as Australia, developing coastal states whichmay join, e.g. Indonesia, and possibly range states such as SouthAfrica with fish but no fishery); the interests of parties fishing forSBT including those with SBT fisheries under development (whowas fishing first?, high seas versus EEZ fleets, interests of estab-lished fleets); the contribution to conservation and enhancementof, and scientific research on, SBT; and any other factors whichthe commission may determine.

While admitting new entrants to the CCSBT and encouragingSBT fishing nations to become parties to UNIA, one step that theCCSBT could take to control unregulated fishing for SBT is tointroduce a certification scheme along the lines that ICCAT hasdone for northern bluefin tuna. Entry of product to a market isonly agreed if a certificate of origin is provided. In the ICCAT,the EU and the US are part of this arrangement, thus giving ithigh level political backing. At present Japan is opposed to sucha scheme for SBT. It should also be noted that Japan is the mainworld market for SBT.

Challenges for Australia

In the absence of an Australian high seas fleet the issue of howmuch resources Australia should be devoting to high seas enforce-ment is a critical one. While the Australian industry has acceptedthe use of VMS, there would be some resistance if more expensiveresources such as observers were part of any future requirementon Australian flag vessels operating in the high seas. On the otherhand, Australia does have a direct interest in managing trans-boundary and highly migratory species in our neighbourhood andthus issues relating to the capability for high seas surveillance andenforcement are important.

The use of Australian Defence Force assets will be thorny,particularly if the RAN (even if it is only used as a ‘taxi’ service)is required to conduct operations against Australian vessels on thehigh seas. Does Australia devote significant resources to high seasinspections or perhaps adopt a more conservative approach such

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as having a standby force of fisheries inspectors that could bedeployed when necessary? Where there are significant resourcesthat Australia has a direct interest in protecting, it makes senseto demonstrate through surface and aerial surveillance that Aus-tralia can contribute to cooperative arrangements.15 But for theimmediate future, Australia should devote resources to observersand data collection rather than a significant high seas enforcementpresence. Australia will, however, need resources to play a respon-sible part in the various regional management organisations thatseek to manage high seas fisheries. It must be said, though, thatmost of the commissions do not have in place many conservationmeasures. In the case of the Indian Ocean, there are none.16

Given that Australia worked very constructively to bring aboutUNIA, it would be in Australia’s interest to become an originalparty to the treaty. In order for that to occur Australia shouldcertainly have some form of register of vessels that are fishingoutside our zone. The current arrangement whereby each fisherymanagement body keeps its own lists means that it is almostimpossible to find out if Australian flag vessels are operating onthe high seas.

Australia will have to make some legislative changes so as togive foreign fisheries officers parties to UNIA the right to boardand, following authorisation by Australia, direct Australian ves-sels. Australia will need to sustain good networks with foreignfishing agencies to detect offenders. Changes will also need to bemade to provide Australian fisheries officers with the right toboard and direct foreign flag vessels of any party to UNIA whenconducting inspection activities as a member of a relevant regionalmanagement organisation.

The overall outlook for high seas policing in Australia’s regionlooks reasonably promising, with greater regional cooperation, theincreasing use of vessel monitoring systems and generally bettercompliance by countries such as Korea and Taiwan. Market-basedcontrols are also being put into force. For example, in early 1998Australia and New Zealand reached an agreement on fishing inthe high seas area of the South Tasman Rise which prohibits thevessels of any state which is not a signatory to the arrangementfrom landing, in their respective ports, orange roughy caught onthe high seas area of the South Tasman Rise.17 The net is closingon unregulated high seas fishing. This may mean, ironically, thatthe flag of convenience problem may get worse before it getsbetter.

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14 Oceans policy, pollution,dumping and maritimeaccidentsJohn Gillies and ConallO’Connell

POLLUTION, DUMPING AND MARITIME ACCIDENTS

The world, and Australia in particular, is entering an ocean erawhich is based on the exclusive economic zone (EEZ). The conceptof the EEZ and other marine jurisdictional zones has arisen fromthe ongoing development of an oceans governance system whichis aimed at bringing order to the management of the world’soceans and the resources that are contained within them.

Domestically, the development of public policy and the role ofthe Commonwealth in establishing the parameters for the success-ful and sustainable use of our oceans’ resources has become animportant component.

The world’s system of oceans governance is based largely oninternational conventions and their associated legal and manage-ment regimes. Broadly, the principal functions of internationalconventions and their regimes are to:

• put in place uniformity and certainty of law;• promote justice between interested parties by establishing, in

a clear and fair manner, rights and responsibilities for allparties; and

• provide a framework for international cooperation.

Australia is a party to many bilateral and multilateral internationaltreaties and instruments which influence the use and managementof our oceans, including those dealing with shipping, protectionof the marine environment, dumping, fishing, customs, maritimecrime, enforcement and maritime boundaries.

Australia has also supported certain declarations in order to

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progress the sustainable development and management of itsoceans and their resources. For example, these non-legally bindingarrangements include the 1992 Rio summit’s Agenda 21 and theJakarta Mandate on Marine and Coastal Biological Diversity.

Australia has accepted the rights and responsibilities which anoceans governance system based on international conventionsbestow upon a nation. Accordingly, how we exercise our rightsand implement our responsibilities in Australian waters will becrucial.

Our domestic regimes for maritime law and policy arise froma number of disparate sources including relevant internationaltreaties and instruments, Australia’s Constitution, the OffshoreConstitutional Settlement and our sectoral-based approach tomarine management. As a result of our system of governmentthere are a number of government departments and agencies whichhave an interest in pollution, dumping and maritime accidents inthe marine environment.

Generally, the Commonwealth Government has responsibilityfor matters such as sea dumping; ship-sourced pollution; searchand rescue; offshore fisheries and the detection of illegal fishingactivities; monitoring of illegal activity in protected areas; wildlifematters including endangered species and marine mammals; andillegal movement of people and goods with their associatedquarantine, customs and health implications.

Within each state and territory there are agencies responsible forthe regulation and enforcement for state/territory laws specificallywithin the 3 nm coastal waters for such matters as boating safety,local search and rescue, land-based sources of marine pollution,inshore fisheries and state national parks and wildlife matters.

This chapter discusses the key issues of pollution, dumping andmaritime accidents under three broad themes: the internationallegal regime, the domestic regime, and the proposed strategies andactions outlined in Australia’s Oceans Policy—An Issues Paper,1

which address these specific issues.

Australia’s Oceans Policy—An Issues Paper

In 1994 the United Nations Law of the Sea Convention (LOSC)entered into force and Australia declared an EEZ of some11 million square kilometres—almost 15 million square kilometreswhen our claimable continental shelf area is determined. To putAustralia’s zone into some sort of perspective, this area is nearlytwice the size of the landmass of continental Australia. This EEZis one of the largest in the world and one of the most diverse in

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its geographic spread and its physical and biological diversity.Added to this Australia has a small population with a limitedability to resource national maritime activities.

Now that Australia has ratified the LOSC we have an obliga-tion to protect and sustainably manage the entire EEZ ocean onthe basis of the best available scientific information. Others maybe permitted access to the living resources not being used byAustralia, subject to appropriate terms and conditions and to thelimits of sustainability.

Australia has well-established regimes for managing specificocean sectors such as shipping, fisheries, oil and gas, and marineprotected areas. But we lack a comprehensive planning and man-agement regime that can resolve conflicts and competing interests,and identify gaps.

To manage the oceans effectively we need to develop anoverarching policy framework which accommodates, in a rationaland orderly manner, the full range of sectoral and cross-sectoralinterests and ensures the ecologically sustainable development ofAustralia’s oceans. To achieve this goal, and for the first time inthe nation’s history, the government is developing a comprehensiveand integrated oceans policy to ensure that we meet this challenge.

The oceans policy will provide the strategic framework for theplanning, management and ecologically sustainable development ofamong other things—fisheries, shipping, petroleum, gas and seabedresources—while ensuring the conservation and protection of ourmarine environment. The policy will set a vision, goals and guidingprinciples for our oceans which will be common to all ocean usersand will be adopted by sectoral management agencies. Specificoutcomes and actions for each sector and cross-sectoral interest willbe developed to assist us use, care and understand our oceans.

Australia’s Oceans Policy—An Issues Paper will form the basisof a national oceans policy for the vast marine areas under Australia’sjurisdiction. The paper has been jointly developed by the Common-wealth, state and Northern Territory officials and describes waysgovernments, industry and the community can work together toachieve healthy, productive oceans to benefit current and futuregenerations. It identifies a vision for our oceans and principles andactions necessary for the conservation and sustainable use of ourmarine and coastal waters and their resources.

Pollution and dumping

The primary international convention for promoting effective con-trol of pollution from ocean disposal which is hazardous to human

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health, could harm marine life, or interfere with other uses of thesea is the London Convention, to which Australia is a party. Ofcourse, there are also the broad obligations in the LOSC to protectand preserve the marine environment and to minimise marinepollution.

A protocol has been developed under the London Conventionwhich restricts to seven the types of waste which can be dumpedat sea, including dredge material, vessels and platforms. Theprotocol also incorporates the polluter pays and precautionaryprinciples. Under the protocol, dumping can only occur whenwaste prevention audits have been conducted and alternative wastemanagement options have been exhausted. The outcome will bethat less waste is dumped, to the benefit of Australia’s marineenvironment.

On a regional level, the Convention for the Protection of theNatural Environment of the South Pacific Region 1986 is impor-tant to Australia. This is a comprehensive umbrella agreement forthe protection, management and development of the marine andcoastal environment of the South Pacific region. It lists sources ofpollution that require control and identifies environmental man-agement issues requiring regional cooperation.

The convention is supplemented by two protocols whichaddress cooperation among the parties to protect the South Pacificregion from the threats and effects of pollution incidents, and theprevention, reduction and control of pollution by dumping ofwastes and other matter.

While Australia is a signatory to both the convention and theprotocols, its effectiveness is limited. The convention and theprotocols form a truly regional treaty that specifically defines anarea to which they apply. In Australia’s case this region is boundedon the western side by the east coast of Australia, effectivelyexcluding the rest of the country from the convention’s provisions.

In 1995, the United Nations Environment Program’s Inter-Gov-ernmental Conference in Washington adopted a Global Programof Action for the Protection of the Marine Environment fromLand-Based Activities (GPA). This agreement establishes a volun-tary framework of actions to be taken at the national, regionaland global level to deal with marine pollution from variousland-based sources such as sewage, waste water, oil and hydro-carbons, nutrients, sediments, litter and port waste. Australiais involved with nine other Southeast Asian governments indeveloping and implementing a regional GPA strategy for the seasof East Asia.

Within Australia, the primary legislative framework for regu-lating dumping is the Commonwealth’s Environment Protection

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(Sea Dumping) Act 1981. The legislation applies to all Common-wealth waters and by agreement with the states and the NorthernTerritory, it is also applicable to the 3 nm state coastal waters.The Act is being amended to take account of the new protocolof the London Convention. Once the Act has been amended,Australia will ratify the protocol. Dumping of industrial waste atsea is banned under both the existing convention and the protocoland Australia accepts the prohibition on the dumping of industrialwastes at sea for all types of industrial wastes.

Ocean ecosystem health and productivity depend on high qual-ity marine and estuarine water. Poor water and sediment qualityare the most serious known pollution issues affecting Australia’scoastal and marine environments. Particular concerns relate tonutrients which damage ecosystems and pathogens which threatenhuman health.

The 1995 State of the Marine Environment Report found thatpollution from land contributes up to 80 per cent of all marinepollution and is a major threat to the long-term health ofnearshore marine systems. It affects ecological processes, publichealth, and social and commercial use of marine resources.Improving the environmental performance of land-based activitieswhich cause pollution will improve ecosystem health and willimprove the security for investment in industries and activities thatare sensitive to water quality.

Primary responsibility for the management of land-sourcedmarine pollution lies with state and local governments. TheCommonwealth has a particular interest because of the linkagesbetween marine systems in inshore and offshore waters andAustralia’s international responsibilities. There is also a significantcommunity expectation that the Commonwealth Governmentshould address this nationally important issue. The communityand industry also have moral and legal responsibilities to preventpollution. They share with governments the responsibility to helpunderstand and solve one of the most pressing and entrenchedproblems in the marine environment.

Unless the issues can be addressed successfully, increased devel-opment in the coastal zone and in inland catchments will riskprogressive increases in pollutant loads and in the range of potentialpollutants from diversified agricultural, urban and industrial pro-cesses. Improved waste-water treatment and waste minimisationprograms may counter some of the impacts of additional develop-ment, but changes in the values and behaviour of individuals, industryand rural sectors, and government will be required for managementin the longer term.

All governments are increasing efforts to reduce land-sourced

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pollution through complementary regulatory and non-regulatorymeans. They recognise that deferral of mitigating action is unjus-tifiable.

Land-based sources of pollution are varied and the specificproblems vary from locality to locality. They range from point-sources such as sewage outfalls and industrial effluent to diffusesources such as agricultural and urban run-off and the disturbanceof acid sulphate soils. Adelaide, Brisbane, Melbourne and Sydneyare carrying out reforms of urban stormwater systems to reducepollution through combinations of source reductions and specifictreatment measures. These programs are applying integratedcatchment management approaches to urban environments. Com-monwealth, state and territory programs, such as the NaturalHeritage Trust, the National Landcare Program and the NationalWater Quality Management Strategy are directed at measureswhich will reduce land-sourced pollution.

Some of the proposed strategies and actions outlined in Aus-tralia’s Oceans Policy—An Issues Paper which address the keyissues of pollution and dumping are:

• Through the National Environment Protection Council explorethe development of a National Environment Protection Mea-sure for marine and estuarine water quality. An NEPM couldbuild on the work of the National Water Quality ManagementStrategy and could include:

a national goal for marine and estuarine water quality tofocus efforts nationally,national mandatory standards for ambient water quality inmarine and estuarine waters,a protocol for monitoring requirements for marine andestuarine water quality, andguidelines for achieving the standards.

• Apply the National Water Quality Management Strategy’sguidelines. These guidelines included the development andadoption of market-based regulatory measures, establishmentof appropriate water quality monitoring, development of catch-ment management policies, and promotion of communityeducation and awareness.

• Develop benchmarks for water quality monitoring that aresufficiently flexible to accommodate varying national circum-stances within the framework of the National Water QualityManagement Guidelines.

• Implement a range of projects under Coasts and Clean Seas topromote:

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innovative management of waste water and stormwater,long-term monitoring of water quality and the effects ofwater quality changes on species and ecosystems,development of new Australian technologies,rehabilitation of polluted areas, andconsiderations of sustainable water management in urbandesign and development in coastal areas.

• Tackle land-based pollution at a regional level, emphasisingperformance-based strategies to meet the particular conditionsof the marine and coastal environment in different parts ofAustralia.

• Promote integrated or total catchment management plansdesigned to deal with pollution problems at their sourcesthrough natural resource use initiatives such as the NationalLandcare program and the National Rivercare Initiative.

• Promote understanding and awareness of the impacts of indi-vidual behaviour and actions on the marine environment.

• Establish targeted estuarine monitoring systems for particularlysensitive areas where there may be serious health and environ-mental impacts on seafoods and ecosystems from land-basedsources of marine pollution.

• Use the National Pollutant Inventory to determine the principalorigins of industrial and commercial pollution of the marineenvironment.

• Develop mechanisms for enforcing the polluter pays principleamong those who generate waste and pollution.

• Contribute to the development and implementation of theRegional Plan of Action for the implementation in the seas ofEast Asia of the GPA.

• Complete action for accession to the protocol to the LondonConvention and implement the total ban on industrial wastedumping at sea.

• Continue regulation of artificial reef construction to protectthe marine environment from pollution and to prevent hazardsin the sea for navigation, commercial fishing and diversthrough conditions attached to permits under the Common-wealth Environment Protection (Sea Dumping) Act 1981.

Maritime accidents

Shipping is a large-scale international activity. Consequently,action to improve maritime safety and prevent ship-sourced pol-

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lution is more effective if carried out at an international levelrather than through unilateral action by individual countries.

As an island nation dependent on shipping for its overseastrade, it is essential that Australia actively participates andcontributes in international maritime forums. The InternationalMaritime Organisation (IMO) is the United Nations agencyresponsible for the oversight and regulation of maritime safety,navigation and the prevention and control of ship-sourced pollu-tion. Its member states work together to achieve agreed positionson maritime safety and environmental issues.

The IMO has established extensive and comprehensive inter-national legal regimes for addressing maritime safety, navigationand ship-sourced pollution issues including:

• over 40 conventions and protocols as the technical basis forthe national laws of member states;

• in excess of 60 codes and recommendations aimed at achievingthe highest standards of environmental protection, seamanshipand crew competencies;

• technical assistance programs to help nations meet theirinternational convention obligations; and

• courses aimed at achieving uniformity and consistency instandards.

The IMO has a continuing program to update its conventionsand recommendations to meet the needs of a modern and techni-cally advancing industry. However, as with other internationalframeworks, the IMO has limitations such as:

• no power to legislate, implement and enforce conventionrequirements;

• no power of sanctions against states who flout their obligations;andoutcomes based on the lowest common denominator and short-

term fixes rather than an approach based within a sustainable,longer term, strategic framework.

Australia is party to all relevant international conventionsconcerning ship safety and pollution prevention and control. Theprimary international conventions which establish the legal regimesfor addressing maritime safety, navigation and ship-sourced pollutioninclude:

• The Safety of Life at Sea Convention specifies minimum standardsfor the construction, equipment and operation of ships, compat-ible with their safety. Flag states are responsible for ensuring thatships under their flag comply with its requirements. Control

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provisions also allow contracting governments to inspect ships ofother contracting states if there are clear grounds for believingthat the ship and its equipment do not substantially comply withthe requirements of the convention.

• The International Convention for the Prevention of Pollutionfrom Ships 1973/78 (MARPOL) is an extensive internationaltreaty which deals not only with oil, but also all forms ofmarine pollution from ships, except the disposal of land-generated wastes into the sea by dumping. MARPOL includestechnical annexes dealing with oil, bulk noxious liquid sub-stances, harmful substances in packaged forms, sewage andgarbage.

• The International Convention on Oil Pollution Preparedness,Response and Cooperation 1990 (OPRC), primary objectivesof which are to facilitate international cooperation and mutualassistance in preparing for and responding to a major oilpollution incident and to encourage countries to develop andmaintain an adequate capability to deal with oil pollutionemergencies.

• International Convention on Standards of Training, Certifica-tion and Watchkeeping for Seafarers 1978, which establishesbasic requirements on training, certification and watchkeepingfor seafarers on an international level.

• The International Convention on Maritime Search and Rescue1979 facilitates cooperation between governments and thoseorganisations participating in search and rescue operations atsea by establishing an international search and rescue plan.

Other relevant conventions include:

• The Global Maritime Distress and Safety System.• The 1966 International Convention on Load Lines.• The 1972 Convention on the International Regulations Pre-

venting Collisions at Sea.• LOSC with its obligations to protect and preserve the marine

environment and to minimise marine pollution.

Ships which do not substantially comply with internationalstandards for vessel safety and crew competence not only pose asignificant risk to life, property and the environment, they mayalso adversely affect other marine-based industries.

Domestically, the Australian Maritime Safety Authority (AMSA)is responsible for maritime safety and prevention and control ofship-sourced marine pollution. Most of AMSA’s efforts are directedtowards the prevention of, and contingency planning and responsecapability for, oil spills and ship casualties. AMSA also has respon-

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sibility for the navigational safety of vessels in difficult waters orareas of high environmental value such as the Great Barrier ReefMarine Park.

Australia has implemented an active program of flag and portstate controls in addition to measures to assist navigational safetyto reduce the risks of a shipping incident. However, as most ofour shipping services are foreign-flagged the required safetyand environmental protection regulatory framework can only beeffectively achieved through international agreement.

Australia has been active in proposing new measures bothregionally and globally. In the past decade, cooperative actionstaken by Australia through the IMO framework have achievedsome significant successes in improved maritime safety and envi-ronment protection in Australian waters. Further effort is requiredto encourage the shipping industry to identify and implement anti-pollution and safety measures and to improve crew competenciesand occupational health and safety through effective training andimplementation of the International Safety Management Code by1 July 1998.

The LOSC guarantees ships the right of innocent passagethrough territorial waters and freedom of navigation in interna-tional straits and on the high seas, although a coastal state cantake actions to protect its environment consistent with interna-tional law. Such actions may include operating vessel trafficmanagement systems and, with IMO agreement, declaration ofarchipelagic sealanes and particularly sensitive sea areas.

The introduction of new technologies in ship design andincreasing concern over protection of the environment are leadingmany nations to propose measures that will affect the free move-ment of ships. Australia, in formulating measures consistent withour international obligations, must find a balance between ourtrading dependence on shipping and our need for environmentalprotection and safety measures. In promoting Australia’s interests,we will need to ensure that actions taken by other nations toprotect their EEZs and marine environments do not adverselyaffect Australia’s seaborne trade.

Some of the proposed strategies and actions outlined inAustralia’s Oceans Policy—An Issues Paper which address the keyissues of maritime shipping and safety are:

• Australia should continue to take a leading role in the IMOand the Asia–Pacific region to promote and support ship safetyand environmental protection standards that reflect Australia’sinterests.

• Australia should continue to implement our effective flag and

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port state control regime and cooperate in regional port statecontrol activities aimed at eliminating sub-standard shipping,including:

supporting development of an Indian Ocean Memorandumof Understanding on Port State Control;strictly enforcing IMO standards for ship and crew compe-tency and actively discouraging ships that do not complywith the standards from working in Australian waters;promoting improvements to occupational health and safetyin the maritime industry; andthrough international aid programs and Australian mari-time training providers, support appropriate education andtraining programs for Australian and foreign seafarers sothat internationally recognised competency levels areachieved.

• Domestic legislation should be introduced requiring vessels tocarry proof of protection and indemnity insurance or someother insurance to cover pollution clean-up costs.

• Small vessels account for a significant proportion of annualdeaths and serious injuries, and search and rescue incidents.There is no nationally consistent approach towards recreationalboating standards or operator licensing and competencytraining. The National Marine Safety Strategy should beimplemented to enhance safety and to streamline regulation ofsmall commercial and recreational vessels.

• The Australian Ballast Water Management Strategy will con-tinue to be implemented to identify and minimise incursionsof harmful aquatic organisms in ships’ ballast water and hullfouling. Coastal ballast water guidelines should be adopted byall states and the Northern Territory on a voluntary basispending ratification of the ballast water annex to MARPOL.

• A single national management regime for international andcoastal ballast water management should be developed, as wellas a ready response capability to identify and combat newincursions of harmful aquatic organisms.

• Continuing to target research into ballast management; anti-fouling technologies; ship and port facility design, constructionand operation; and improved communication and location formaritime search and rescue.

• In close cooperation with the states, the Northern Territoryand the oil and shipping industries, the Commonwealth Gov-ernment should maintain effective arrangements for respondingto pollution from oil and other hazardous substances.

• The recently introduced plan to combat pollution caused by

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chemical spills at sea should be combined with the oil pollutionresponse plan to form a National Plan to Combat Pollution ofthe Sea by Oil and Other Hazardous Substances. The plan willbe enhanced by:

giving priority to the completion of the Oil Spill ResponseAtlas,providing real time meteorological and oceanographic infor-mation for oil spill response and upgrading the oil spilltrajectory database to include Oil Map, andundertaking research and development of bioremediation inoil spill response in tropical waters.

• The Australian and New Zealand Environment and Conserva-tion Council (ANZECC) strategy to protect the marineenvironment from shipping operations has been developed toimprove the environmental management of shipping andrelated activities. ANZECC’s Maritime Accidents and PollutionStrategy (the Seagull Report) should continue to be imple-mented. The highest priority issues addressed in the strategyrelate to:

communicating with shipping and boating about areas sen-sitive to their operations;developing criteria for identifying and listing marine areasparticularly sensitive to shipping and boating activities, sothat industry will be able to take action to protect thoseareas;managing contaminated ballast and hull transfers;improving waste reception facilities at ports, marinas andboat harbours;the recently completed Best Practice Guidelines for theProvision of Waste Reception Facilities at Ports, Marinasand Boat Harbours in Australia and New Zealand, whichgives information on mandatory and recommendedapproaches, should be disseminated widely through theindustry;industry adoption of a code of practice for the applicationand removal of anti-fouling products and treatments andthe disposal of waste from these processes should bepromoted;a waste recording and audit system for small commercialcoastal vessels which are not covered under currentMARPOL regulations should be developed;developing and piloting a national monitoring program formarine debris;

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a community and industry awareness and needs surveyshould be completed; andan Asia–Pacific Regional Workshop was held in Townsvillein late April 1998 and developed a regional strategy andaction plan for land-based sources of marine pollution.

• Australia’s effective arrangements for world standard searchand rescue will be maintained. Regional cooperative arrange-ments for search and rescue in neighbouring search and rescueregions will be enhanced through development and implemen-tation of search and rescue arrangements, including provisionof national and international search and rescue training.

• The Global Maritime Distress and Safety System will be imple-mented by early 1999, and in cooperation with the states andthe Northern Territory consistent requirements for the use ofElectronic Position Indicator Radio Beacons and maritime com-munications for small vessels should be pursued.

• Australia’s cost-effective maritime navigation services andinfrastructure will be maintained. Local area DifferentialGlobal Positioning Systems (DGPS) services are beingexpanded. Networking of DGPS to improve coverage andintroduction of wide area satellite-based DGPS systems andelectronic chart display and information systems should beexamined and tested for introduction over the next few years.

• New technological developments in marine navigation, such aselectronic charting, satellite navigation and vessel traffic man-agement systems, should be explored to minimise risk ofmaritime accidents.

• Australia should continue its involvement in the InternationalAssociation of Lighthouse Authorities and other internationalforums to ensure global navigational safety policies, standardsand new technologies meet Australia’s interests.

• Accurate and standardised spatially related hydrographicsurvey, tidal and charting information should continue to beprovided to support maritime operations.

• Australia’s already substantial capacity to provide quality mari-time education, training and research should be increased. Theprovision of quality education and research to improve under-standing of the potential wealth of the oceans and of safeguardsnecessary to minimise environmental impacts of shipping andrelated maritime activities should also be encouraged.

• Cooperation with Australia’s neighbours in provision of mar-itime education services, particularly in support of IMOobjectives, should be promoted.

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Conclusions

Australia has recently taken the final steps towards developing anoceans policy with the release of Australia’s Oceans Policy—AnIssues Paper for public consultation.

While Australia has in place a sectoral-based regime for man-aging our maritime zones, one of the primary challenges facingthe development of an oceans policy is to ensure that we addressthe key issues of pollution, dumping and maritime accidents.

The discussion and outcomes of public debate and activitiessuch as the oceans governance and maritime strategy conferenceon which this book is based can help to make our final oceanspolicy a more functional, useful and practical policy for Australia’smarine environment.

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15 Jurisdictional issues fornavies involved in enforcingmultilateral regimes beyondnational jurisdictionRobin Warner

JURISDICTIONAL ISSUES FOR NAVIES

As we enter the new millennium, states are becoming party to acomplex array of multilateral regimes which govern ocean areasbeyond national jurisdiction. The traditional freedoms of the highseas, set out in Article 87 of the 1982 United Nations Law of theSea Convention (LOSC), are now overlaid with a network ofconventional international law provisions which seek to regulatea wide range of criminal activity, the taking of resources andenvironmental despoliation occurring on the high seas. Many ofthe high seas regimes negotiated since the adoption of the LOSCin December 1982 impose enforcement obligations on states par-ties but contain scant detail as to the practical mechanismsfor enforcement. The high seas as an arena for maritime lawenforcement presents new challenges for navies charged withimplementing cooperative regimes. The development of uniformenforcement procedures and an equitable division of enforcementresponsibility among regional navies or regional maritime securityforces is essential if high seas regimes are to be implementedeffectively.

In the order of national priorities, enforcement of legislationwithin a state’s own offshore zones will naturally take precedenceover regimes devised to regulate the high seas. For many states inthe Asia–Pacific region, effective surveillance and enforcementregimes of their own vast exclusive economic zones (EEZs) arestill nascent. Even states with sophisticated maritime patrol forcessuch as Australia have limited resources to provide comprehensivecoastal surveillance, let alone contribute to high seas policing.

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Nevertheless, as serious criminal activity on the high seas beginsto affect national security, national offshore resources deplete andmarine environmental protection of high seas areas assumesgreater importance for coastal states, the imperative to regulatethe last frontier of ocean space may become more urgent.

Experience garnered from enforcement of Australian fisherieslegislation in remote offshore territories1 and other states’ experiencein counter-drug operations on the high seas2 foreshadows some ofthe jurisdictional dilemmas and practical difficulties which may beencountered by navies and maritime security forces engaged in highseas policing. The Niue Treaty on Cooperation in Fisheries Surveil-lance and Law Enforcement in the South Pacific Region and at leastone subsidiary agreement signed under the treaty are often cited asa precedent for any future multilateral initiatives to enforce nationalor high seas regimes; however in practice the Niue Treaty has rarelybeen invoked.3 Increased illegal fishing in the sub-Antarctic hasprompted states with interests in the area, in particular the EasternAntarctic Coastal States (EACS) grouping, to address the potentialfor cooperative surveillance and enforcement of national fisherieslegislation, but future progress is dependent on the substantialcommitment of resources by member governments. This chapterattempts to identify some of the jurisdictional issues which can arisefor navies or maritime security forces tasked with enforcing multi-lateral regimes beyond national jurisdiction.

Multilateral regimes beyond national jurisdiction

In an attempt to avert the harmful consequences of high seasactivities and ensure sustainable development of one of the lastglobal commons, states have negotiated a variety of regimes. Ofall the high seas regimes currently in force, the 1988 ViennaConvention against Illicit Traffic in Narcotic Drugs and Psy-chotropic Substances appears to have been the most consistentlyenforced and systematically regulated by states parties. The con-vention permits flag states to consent to their vessels beinginterdicted by the government vessels of another state where suchvessels are suspected of being involved in illicit narcotics traffick-ing.4 Factors contributing to the successful implementation of thisregime include the political will of states parties to combat seriouscriminal activity beyond national jurisdiction where it impacts onnational interest, the resources and capacity of states such as theUS to apprehend offenders and the greater proximity of appre-hensions to territorial waters in comparison to high seas fisheriesoffences, which occur beyond a coastal state’s 200 nautical mile

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EEZ. Another area of criminal activity with the potential to attractcoordinated enforcement activity by coastal states is maritimeterrorism. While the 1988 Rome Convention for the Suppressionof Unlawful Acts against the Safety of Navigation provides forcooperation, assistance and information exchange between partiesin connection with preventing any of the prescribed offences andthe subsequent criminal proceedings, it does not provide for anyadditional enforcement jurisdiction beyond that already availableto coastal states under general principles of international law.5

Unlike the 1988 Vienna Convention against Illicit Traffic inNarcotic Drugs and Psychotropic Substances, apprehension of asuspected offender under the Rome Convention appears to requiresome jurisdictional nexus with the coastal state conducting theapprehension and not simply the consent of the flag state toconduct apprehensions of its flag vessels. Cooperation betweenregional navies or maritime security forces to enforce the RomeConvention would enhance its value, particularly in times ofheightened tension when terrorist acts are more likely to occur.6

Future implementation of the Agreement for the Implementa-tion of the Provisions of the United Nations Convention on theLaw of the Sea of 10 December 1982 relating to the Conservationand Management of Straddling Fish Stocks and Highly MigratoryFish Stocks (the UN Implementing Agreement—UNIA) will be amore complex undertaking requiring flag states to enforce conser-vation and management measures for straddling and highlymigratory fish stocks against their own vessels irrespectiveof where violations occur.7 There are also provisions under theUNIA requiring regional or sub-regional fisheries managementorganisations to establish reciprocal boarding and inspection pro-cedures amongst member states for high seas areas covered bythe relevant regional fisheries management regimes.8 Effectiveenforcement of the UNIA in a particular region will entail thedevelopment by member states of an efficient surveillance networkand highly skilled maritime response forces with the capacity tooperate at long range from shore facilities.

Some multilateral regimes applicable in international waters relyon a combination of flag state enforcement and compliance moni-toring by a multilateral management body. The implementation ofconservation measures under the Convention for the Conservationof Antarctic Marine Living Resources (CCAMLR) is through flagstate enforcement under Article IX (6) of the convention, supple-mented by the setting up of an observation and inspection systemunder Article XXIV managed by the CCAMLR Commission ratherthan states parties to CCAMLR. Reports of non-compliance are madeavailable to other CCAMLR members, however the prosecution of

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offenders is still at the discretion of the flag state and would dependto a large extent on the provisions of the relevant flag state’simplementing legislation if it is a party to CCAMLR.9

International Maritime Organisation (IMO) conventions onmarine environmental protection such as the 1972 London Dump-ing Convention and its 1996 protocol and the 1973 InternationalConvention for the Prevention of Pollution from Ships (MARPOL)rely on a combination of flag, port and coastal state jurisdictionfor their implementation. Under the 1996 protocol to the LondonDumping Convention, contracting parties are obliged to apply themeasures required to implement the protocol to all:

• vessels and aircraft registered in their territory or flying theirflags;

• vessels and aircraft loading in their territory the wastes orother matter which are dumped or incinerated at sea; and

• vessels, aircraft and platforms or other man-made structuresbelieved to be engaged in dumping or incineration at sea inareas within which they are entitled to exercise jurisdiction inaccordance with international law.10

In areas beyond national jurisdiction, however, contracting partiesare simply exhorted to cooperate in the development of proceduresfor the effective application of the protocol in areas beyond thejurisdiction of any state, including procedures for the reporting ofvessels and aircraft observed dumping or incinerating at sea incontravention of the protocol.11 The MARPOL Convention con-tains a similar amalgam of flag, port and coastal state enforcementprovisions with only flag state enforcement being possible beyondnational jurisdiction.

In the traditional areas of high seas jurisdiction such as piracy,the slave trade and stateless vessels, there has been very littledevelopment of cooperative enforcement regimes beyond nationaljurisdiction, although some regional piracy patrols have beenestablished to monitor areas within national jurisdiction such asthe Straits of Malacca. Coastal states such as Australia havepreferred to legislate unilaterally to provide for enforcement ofpiracy and other high seas provisions under the 1982 UnitedNations LOSC.12 In the opinion of one writer, the establishmentof cooperative maritime patrols, possibly with the support ordirect involvement of regional navies, may have some utility inreducing the incidence of piratical attacks but the most effectivesolutions for coastal states lie in traditional policing methodsonshore, including investigation of possible links between piracyand organised crime.13

The potential for multilateral regulation of other ocean uses

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beyond national jurisdiction is unlimited, however there are areas ofactivity in which the advent of regulation can be predicted withreasonable certainty. The International Sea Bed Authority is in thecourse of preparing a draft mining code which will contain environ-mental provisions. If deep seabed mining becomes a viable oceanindustry in the next century, compliance with those provisions mayneed to be monitored by enforcement agents from states parties tothe LOSC. The declaration of marine protected areas beyond nationaljurisdiction is a possible area of expansion under the 1972 WorldHeritage Convention. Such a development could precipitate the needfor an international management structure including the provisionof maritime patrols from interested states parties. The increasingincidence of humanitarian disasters, internal conflict and populationexpansion has already led to an escalation in population movementsacross ocean areas beyond national jurisdiction. The Italian Govern-ment has recently submitted Draft Guidelines for the Prevention andSuppression of Unsafe Practices Associated with the Trafficking orTransport of Migrants by Sea for consideration by the MaritimeSafety Committee of the IMO.14 The guidelines encourage govern-ments to conclude operational agreements adopting measures tosuppress and prevent unsafe practices associated with the traffickingand transport of migrants by sea. At this stage, the guidelines do notextend the traditional bases for jurisdiction in international watersbut rely on government powers in relation to their own flag vesselsand the rights of governments to adopt the necessary measuresin relation to stateless vessels or vessels flying more than one flagof convenience where such vessels are bound for their coasts.Recommended measures include the conduct of safety examinationsfor suspected migrant vessels, ensuring the humanitarian handling ofthe persons on board and the detention of unsafe vessels. Futureenforcement of such measures is likely to involve regional navies ordedicated maritime security forces.

Basis for jurisdiction in international waters

The regulation of ocean areas beyond national jurisdiction beginswith the negotiation of a multilateral agreement between interestedstates. This umbrella or framework agreement will normally providethe basis for jurisdiction beyond national maritime boundaries,however, the conclusion of such an agreement is only the first stepin the implementation of the regime. Some multilateral agreementstransfer the responsibility to states parties to negotiate subsidiaryimplementing arrangements covering the practical aspects of surveil-lance and monitoring on a regional or bilateral basis. In addition,

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many states will need to implement the treaty in their own legislationbefore participating in cooperative enforcement. It is at these twostages that the state has the opportunity to determine the extent ofits commitment to implementing the multilateral regime. Dependingon the priority accorded to particular regimes by states and theenforcement capacity available, states may choose to make a limitedor phased commitment to the implementation of the regime. TheNiue Treaty is an instance where states have been unable or reluctantto negotiate the network of subsidiary agreements necessary tosuccessfully implement the treaty.15

In most regimes which apply to areas beyond national juris-diction, there is still a great emphasis on the role of the flag state.In the 1988 Vienna Convention against Illicit Traffic in NarcoticDrugs and Psychotropic Substances, the principal bases for juris-diction are the nationality of the alleged offending vessel or theconsent of the flag state to apprehension of one of its vessels. TheUNIA gravitates further in the direction of a truly internationaljurisdiction by allowing states parties, operating under the aus-pices of a relevant regional fisheries management organisation(RFMO), to board and inspect not only their own flag vessels butalso vessels of other flags in the high seas area covered by theRFMO, whether or not the flag states of those vessels are partiesto the UNIA. Where there are clear grounds for suspecting aviolation, inspecting states still need to contact the flag state toobtain its authorisation to proceed further with enforcement, butif the flag state fails to take action and there are clear groundsfor believing that a serious violation has taken place, the inspect-ing state may bring the vessel to port for further investigation.16

The necessity to obtain the flag state’s authorisation to enforcecounter-drug or fisheries protection regimes in international watersadds an extra dimension of complexity and delay for navies and othermaritime security forces involved in enforcing such regimes. In remotelocations, delays imposed by the necessity to contact the flag statemay well jeopardise the capacity of an enforcement vessel to under-take a successful apprehension. In the case of counter-drug operationsin international waters, some states with superior enforcementresources have eliminated this hiatus in the enforcement procedureby concluding standing agreements with other flag states whichauthorise enforcement of the relevant law against their flag states’vessels.17 Counter-drug operations conducted by the US Coastguardin the Caribbean region are a case in point.18 Clearly effectiveenforcement in areas beyond national jurisdiction will continue torely to a large extent on the development of regional infrastructureto enforce the relevant regimes. There must also be strong nationalincentives for such regional cooperation to occur, such as the gradual

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extinction of a valuable fishery, the impact of drug trafficking, or aninflux of illegal immigrants on national security. The scourge ofpiracy beyond national jurisdiction has attracted only limited prac-tical intervention despite the long-established basis for internationaljurisdiction under the LOSC and customary international law. Apossible rationale for the lack of multilateral cooperation to combatpiracy beyond national jurisdiction may be that its impact on nationalsecurity is more remote than many of the other activities subject tohigh seas regulation.

Navies as enforcement agents

Navies are often viewed as the preferred agents for offshoreenforcement for a variety of reasons. Warships and ship-bornehelicopters have the capacity to operate at long range from shorefacilities supported by tankers and their personnel are trained ina range of boarding procedures and the use of force to effectapprehensions. Finally, the spectre of grey warships bearing downon a drug runner or an illegal fishing vessel has traditionally beenregarded as a more powerful deterrent than a civil enforcementvessel. For many navies, however, the law enforcement role isancillary to other primary functions such as preparation forwarfighting, the maintenance of maritime embargoes or the sup-port of land forces. Warships deployed on law enforcementoperations may not be purpose built for the tasks involved andmay not always be available for diversion from other importantroles. Navies may even face constitutional obstacles to enforcingnational legislation against vessels of their own flag.19 The com-prehensive enforcement of regimes beyond national jurisdictionmay well entail the development of regional maritime securityforces dedicated to these functions. Within Australia’s immediateregion, there is ample scope for the development of regionalmaritime security forces to combat drug trafficking and maritimeterrorism in international waters and to regulate illegal fishing andmigrant flows on the high seas. Their establishment, however,would entail substantial investment by regional states in capitalequipment and reliance on regional navies to conduct initialtraining of enforcement personnel.

Aspects of enforcement beyond national jurisdiction

Navies involved in law enforcement operations both within andbeyond national jurisdiction focus on three key phases of enforce-

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ment; the identification and monitoring of suspect vessels, thelocation and mode of apprehension and the delivery of the appre-hended vessel and crew to port.

Location of apprehension

For navies engaged in enforcing domestic laws within nationaljurisdiction, the international law doctrine of hot pursuit enablesthem to extend the jurisdictional nexus onto the high seas pro-vided contact is maintained with the suspect vessel.20 Likewise theinternational law doctrine of constructive presence may enablethe apprehension of a mother ship on the high seas which directsthe illegal operations of other vessels within national jurisdiction.21

Beyond national jurisdiction, however, there is no provision forcontinuous pursuit of vessels which contravene applicable inter-national law and then regain the territorial sea of a third state.The offender then comes within the jurisdiction of the thirdstate and normally must offend against the laws of that statebefore apprehension by coastal state enforcement agents is possi-ble. Some multilateral regimes beyond national jurisdiction havepartially overcome this lacuna in jurisdictional coverage by othermeans. The UNIA enjoins port states to prohibit the landing andtransshipment of catch which has been taken in contravention ofregional conservation and management measures.22 In the case ofcounter-drug operations beyond national jurisdiction, regionalintelligence networks may provide participating coastal states withthe opportunity to enforce their own anti-drug legislation when asuspected offender enters their national jurisdiction. Article 9 ofthe Vienna Convention exhorts states parties to establish andmaintain channels of communication between their competentagencies and services to facilitate the secure and rapid exchangeof information concerning all aspects of offences. In the RomeConvention on Maritime Terrorism, states parties are required totake measures to establish their jurisdiction over defined offenceswhere the alleged offender is present in their territory, or extraditethe offender to another state party.23

Use of force

The use of force in law enforcement operations is the mostcontroversial issue confronted by navies. While the capacity to useforce is seen as a necessary attribute in the law enforcement role,the level of force employed is contentious. Although direct fire

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may be regarded as appropriate in a counter-drug operation wherethe suspected offenders are armed and the pursued ship is underway, it is more likely to be considered excessive when apprehend-ing an illegal fishing vessel. The UNIA provides that inspectorsshould avoid the use of force except to the degree necessary toensure their safety or if obstructed in the execution of theirduties.24 Case law from the Prohibition era and the British/Scan-dinavian Cod Wars of the 1960s criticised the use of direct firein fisheries enforcement operations.25

Counterposed against these judgements, however, is consider-able state practice where states have sanctioned the use of directfire as a last resort to cause a vessel to stop, even in fisheriesapprehensions.26 In an attempt to forestall the need to use force,navies have developed a battery of non-lethal alternatives such aswater cannon and propeller entrapment devices, together with theusual escalatory warning signals using visual and auditory devicesand culminating with warning shots across the bows. The efficacyof non-lethal alternatives such as propeller entrapment devices isquestionable in remote locations beyond national jurisdictionwhere the disabling of vessels may jeopardise the safety of masterand crew.

The use of force by navies involved in apprehensions beyondnational jurisdiction, without domestic enabling legislation, is apotential source of challenge to the legitimacy of an apprehensionin any subsequent prosecution.27 The extent to which the legisla-tion should prescribe the modes of force to be used and the orderof escalation is not clear in most multilateral agreements. TheUnited Kingdom Criminal Justice (International Cooperation) Act1990 which implements the 1988 Vienna Convention avoids thedilemma by simply stating in schedule 3, paragraph 6 to section20 of the Act that: ‘An enforcement officer may use reasonableforce, if necessary, in the performance of his functions’. It is thenleft to the domestic tribunal charged with prosecuting the offenderto decide whether the force used in apprehending the pursuedvessel was excessive, if this issue is raised by the defence.

Commonality of enforcement procedures

In the arena of multilateral law enforcement beyond nationaljurisdiction, equity demands that states harmonise their enforce-ment procedures. In drafting regional implementing arrangementsand domestic legislation, contracting parties should strive forconsistent provisions in areas such as use of force, boardingprocedures, the rights of alleged offenders, and detention provis-

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ions. While some diversity is inevitable in enforcement proceduresby regional navies and prosecutions under different legal systems,an attempt should be made to synchronise modalities of enforce-ment and the level of penalties.

Delivery of vessels and offenders

Once an illegal fishing vessel or alleged drug offender is ap-prehended beyond national jurisdiction, navies still retainresponsibility for delivering the vessel together with its master andcrew or the alleged offender to a responsible prosecution authority.In the case of remote fisheries apprehensions, this may entail alengthy voyage through international waters and possibly throughthe offshore zones of a third state. Implementing arrangements formultilateral regimes should specify who controls the vessel duringthe transit, measures which can be taken against a belligerentmaster and crew, and the basis of liability for personal injury andproperty damage to the vessel and its equipment during transit.Depending on the location of the apprehension, an implementingarrangement may also contain provision for contracting statesother than the apprehending state to receive and prosecute theoffender in their respective jurisdictions. Provision for the releaseand bonding of illegal fishing vessels apprehended beyond nationaljurisdiction, similar to those contained in national fisheries legis-lation, will need to be developed under the UNIA. A requirementfor bonded vessels to be fitted with vessel monitoring equipmentcould also become a feature of regional implementing arrange-ments under the UNIA.

Subsequent litigation

Difficulties encountered in prosecuting illegal fishing vessels appre-hended within a coastal state’s jurisdiction are a portent of theobstacles which may attend the prosecution of a high seas offence.The actions of enforcement personnel will be closely scrutinisedfor their conformity with any applicable domestic and interna-tional law, as will the legislative authority for a particularapprehension. These factors together with the location of theapprehension and the constitutional validity of naval involvementin law enforcement operations may all form the bases forchallenges to the court’s jurisdiction once the case is heard. Toavoid abortive prosecutions, conventional international law instru-ments and domestic implementing legislation relating to maritime

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law enforcement beyond national jurisdiction should containdetailed provisions on boarding procedures, the use of force andthe delivery of apprehended vessels to port.28

Simultaneous enforcement of high seas regimes

Ideally a law enforcement operation beyond national jurisdictionshould be for a single purpose. Although the concept of simulta-neous enforcement of regimes is superficially attractive as aneconomy measure, detection and enforcement procedures may varyconsiderably. A higher level of force and a more clandestineapproach to detection and boarding will often be apposite to adrug offence whereas illegal fishermen are more likely to submitto boarding without offering any opposition. The professionalexpertise necessary to detect environmental offences may be moreappropriately deployed on a civil enforcement vessel which is alsoconducting marine scientific research, rather than on a warship.Simultaneous enforcement of multilateral regimes could also leadto disputes among tasking agencies in prioritising apprehensions.

Conclusion

As ocean uses beyond national jurisdiction encroach on nationalsecurity, navies are more likely to be dispatched to enforce thegrowing framework of applicable regimes. As yet, however, mosthigh seas regimes are embryonic in nature and require substantialinfrastructure development before they will become effective deter-rents to illegal activities beyond national jurisdiction. The catalystfor further development will be national interest rather thanaltruism on the part of states or concern for the common heritageof mankind. Regional cooperation in maritime surveillance andcross-vesting of national jurisdiction within states’ offshore zonesmay precede the policing of ocean areas beyond national jurisdic-tion. The establishment of reciprocal enforcement regimes atbilateral and regional levels will provide a body of practicalenforcement experience which navies can draw on in tackling lawenforcement beyond national jurisdiction. In the longer term,however, states should consider whether multilateral maritimesecurity forces, funded by members with strong allegiances toregional organisations, may be a more viable option for high seaspolicing than navies diverted from their primary functions ofmaintaining military security.

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16 Will the new science ofcomplexity subvert oceanspolicy?Roger Bradbury

THE NEW SCIENCE OF COMPLEXITY

The Telte it’s called. It’s miles wide, you see, at the entrance, butlater on it is split into two by the Hohenhörn bank; then it getsshallow and very complicated, and ends as a mere tidal dribletwith another name. It’s just the sort of channel I should like toworry into on a fine day or with an offshore wind. Alone, in thickweather and a heavy sea, it would have been folly to attempt it,except as a desperate resource. But, as I said, I knew at once thatDollmann was proposing to run for it and guide me in . . .

We soon came to what I knew must be the beginning of theTelte channel. All round you could hear the breakers on the sands,though it was too thick to see them yet. As the water shoaled, thesea of course got shorter and steeper. There was more wind—awhole gale I should say.

I kept dead in the wake of the Medusa, but to my disgust Ifound she was gaining on me very fast. Of course I had taken forgranted, when he said he would lead me in, that he would slowdown and keep close to me. He could easily have done so bygetting his men up to check the sheets or drop his peak. Instead ofthat he was busting on for all he was worth. Once, in arain-squall, I lost sight of him altogether; got him faintly again,but had enough to do with my own tiller not to want to bepeering through the scud after a runaway pilot. I was all right sofar, but we were fast approaching the worst part of the wholepassage, where the Hohenhörn bank blocks the road and thechannel divides . . . I knew perfectly well that what I should soonsee would be a wall of surf stretching right across and on bothsides. To feel one’s way in that sort of weather is impossible. You

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must know your way, or else have a pilot. I had one, but he wasplaying his own game . . .

By the time I realised the danger it was far too late to turnand hammer out to the open. I was deep in the bottleneck bight ofthe sands, jammed on a lee shore, and a strong flood tide sweepingme on . . .

Well, just as I foresaw, the wall of surf appeared clean acrossthe horizon, and curling back to shut me in, booming like thunder.When I last saw the Medusa she seemed to be charging it like ahorse at a fence, and I took a rough bearing of her position by ahurried glance at the compass . . . I kept on my bearing as well asI could, but I was already out of the channel. I knew that by thelook of the water, and as we neared the bank I saw it was allawash and without the vestige of an opening. I wasn’t going tochuck her on to it without an effort; so, more by instinct thanwith any particular hope, I put the helm down, meaning to workher along the edge on the chance of spotting a way over. She wasburied at once by the beam sea, and the jib flew to blazes; but thereefed stays’l stood, she recovered gamely, and I held on, though Iknew it could only be for a few minutes as the centreplate was upand she made frightful leeway towards the bank.

I was half blinded by scud, but suddenly I noticed what lookedlike a gap, behind a spit which curled out right ahead. I luffed stillmore to clear this spit, but she couldn’t weather it. Before youcould say knife she was driving across it, bumped heavily, buckedforward again, bumped again, and—ripped on in deeper water! Ican’t describe the next few minutes. I was in some sort of channel,but a very narrow one, and the sea broke everywhere. I hadn’tproper command either; for the rudder had crocked up somehowat the last bump . . . It couldn’t last long, and finally we wentcrash on to something and stopped there, grinding and banging. Soended that little trip under a pilot.

So remarked Davies, Erskine Childers’ hero, in his turn-of-the-century classic, The Riddle of the Sands, desperately makingpassage to Cuxhaven through the labyrinth of sandbanks near themouth of the Elbe.1 But apart from being a fine piece of seawriting, what does this passage tell us today?

Perhaps it neatly captures the central ideas of oceans gover-nance and maritime strategy. Davies’ problems with the ocean areours today. He must assert control over the sea, and is always onthe edge of losing it. He is surrounded by the mind-numbingcomplexity of the sea—a complexity made more awful by hisimperfect knowledge of it, for his charts are useless and he is, ashe says, ‘half blinded by scud’. It is a complexity that exists inthe large and the small—as much in the power of the storm as inthe critical fastenings of the rudder; a complexity where the detailsmatter as much as the grand scheme; a complexity born of the

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interaction between complex human needs and complex naturalsystems—and which somehow needs to be instantly and compre-hensively understood. He must find some strategy, some waythrough. Above all, he must constantly weigh up the risks andtake chances.

This chapter attempts to tease out these parallels a little more,not only to convince the reader why Davies’ problems are alsoour problems, but also to take the argument an important stepfurther. If we begin to use the emerging knowledge of the sea toprovide contemporary solutions to these eternal problems, thenthere is a prospect that we will radically transform the way wethink of the nature of oceans policy and hence oceans governanceand maritime strategy.

Our knowledge of the oceans is still a drop in the bucket

If we sail west from Davies’ beloved Wattenmeer out into theNorth Sea, to that rugged rock called Helgoland, we will find oneof the oldest marine biology stations in the world, the BiologischeAnstalt Helgoland. And here, every day, in fair weather and foul,for more than a hundred years, a scientist walks out to the endof the jetty and takes a water sample from the full tidal streamof the Helgoland Roads. In the biting snow of a midwinter’s gale,she might even think that Davies had it easy. And she, and thegenerations of scientists before her, might wonder if such a literaldrop in the bucket makes any difference at all to our knowledgeof the oceans.

Since that first sample was taken, many more have followedall over the world. There has been an explosion of data, informa-tion and knowledge about the oceans. With research ships, marinestations, drifting buoys, aircraft and satellites, we have discoveredmuch. In this century we have discovered the greatest geographicalfeature on the planet—the earth-girdling mid-oceanic ridge: withmountains that dwarf Everest; with a length that makes theRockies or the Andes seem like mere chains of hills; with theirrefutable evidence of plate tectonics and seafloor spreadingmarked indelibly on it; and with whole new phyla of organismsto add to the world’s biodiversity.

We now have huge data sets describing a huge range of oceanphenomena. We now have national institutions to collect, storeand disseminate these data, and international protocols to sharethem. We now have analytical tools to take that data and turn itinto useful information. We believe that we have the beginningsof a scientific understanding of the oceans. We have a sketch,

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indeed, of the main physical and biological processes—the greatocean currents, the major flows through the food chain—even ifwe are frequently surprised by new phenomena that disturb oroverturn our comfortable assumptions.

But we need to remember that all this data, all this informa-tion, all this understanding are, like those water samples onHelgoland, just drops in the bucket. The ocean is truly, unimag-inably vast.

And complex. We are only just beginning to grasp the com-plexity. We may have added dramatically to our store offundamental data about the oceans—the observations of the statesof the many biophysical and socioeconomic variables. But the keyfeature of the emerging sketch—the feature that even overshadowsthe size of the problem—is its complexity, the staggering numberof critical dependencies and interactions among the huge numberof important variables.

We have been confronted by this complexity as we have begunto grapple with the idea of the ecologically sustainable develop-ment of the oceans. The ecologically sustainable developmentprocess has forced us to stand back and look at the whole. It hasdenied us the comfort of diving into some single-discipline issue,as we try to balance the largely biophysical needs of the naturalsystem with the largely socioeconomic needs of the human system.And as we go through these exercises we are continuallyconfronted by the complexity—to understand ocean circulation,we must understand climate; to understand climate, we mustunderstand human activity, and so on.

Understanding complexity is changing science

By asking science to understand complex phenomena like theoceans, society has forced science to change, to adapt, and to learnsome new ways of doing science. By asking science to change itsways, society has also implicitly asked science to renegotiate itscontract with society. The surprising thing that is emerging fromthis is that science has learned a dramatically new way of under-standing complexity, and that this is now forcing thatrenegotiation into new, uncharted waters.

Ever since the Renaissance, science has basically been refininga single method of knowing the world. Regardless of whether itis biology or physics, chemistry or geology, the scientific methodhas been characterised by the search for the underlying simplicityof the world by reducing the manifest complexity of the observedwhole into more manageable, simpler, and more fundamental

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parts. So successful has this method been, that it is usually calledthe scientific method, as if to confirm that there can be only theone.

Those more difficult phenomena that could not be handledsatisfactorily in this way were more or less stigmatised as toocomplex, strange, rogue or weird and were left on the shelffor another day. Thus many messy physical phenomena, andparticularly many biological phenomena, and especially mostsocioeconomic phenomena, were considered refractory to the sci-entific method, and by implication were not the proper concernof scientists at all. They were handled by other methods: historical,narrative, ideological, rhetorical, philosophical and so on.

But science is not a method, it is a state of knowing. And inrecent years it has responded to the need to know such phenomenaas oceans or ecosystems, immune systems or economies with theirmessiness, fuzziness, incompleteness, novelty, surprise, adapta-tion—in short, with their irreducible and contingent complexity.It has developed a wide range of tools not only for acquiring thedata about such systems, but also for analysing and visualisingthem. These tools are usually computer-intensive and rejoice insuch techno-names as adaptive game theory, simulated annealing,neural nets, fuzzy logic, genetic algorithms, cellular automata, spinglasses and agent-based modelling.

Together with the tools has come an approach, called complexsystems theory, which offers a qualitatively new way of doingscience.2 Where traditional science sees the search for simplicityand natural law as the goal, the new theory sees the search foremergent structures and dynamics. Where the old science givesprimacy to testing hypotheses, the new encourages generatingthem. Where the old demands objectivity and the separation ofobserver and observed, the new sees no such distinction, encour-aging interaction and recursion between them. The new science ofcomplex systems tries to build exploratory tools, where the oldconstructs predictive ones.

The approach of complex systems theory, though, is ineffablyscientific. It is not some woolly ‘anything goes since everything isrelative’ belief system. While it does say there may not be simpleanswers to the way the world is, it does not say any answer isas good as any other. While it does say that we may not yet havethe right answers, it also says that many answers—non-scientificanswers—are just plain wrong. On all those issues it is asone with traditional science. It fully acknowledges its scientificpatrimony.

But this is a lot more than society asked for. All it really wantedwas for science to repeat its trick of understanding simple systems,

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such as the motions of the planets or the workings of levers, witha similar sort of understanding for complex systems. We have had300 years to get used to Galileo’s first scientific revolution, andwe have got comfortable with the utility of that knowledgeand the technological advances that have come with it. Despitethe grandeur of their conceptions, the Apollo man-on-the-moonprogram was just the technological extension of Newton’s reduc-tionist physics, and the human genome project and geneticengineering are likewise no more than technological extensions ofMendel’s reductionist genetics.

Instead of that comfortable, practical and confinable sort ofscience, society has got a revolution instead. And revolutions areuncomfortable, impractical and, often, uncontainable.

Complex systems theory is not at all like Galileo’s science. Itis, at the present time, a rapidly evolving bunch of tools anda rapidly evolving bunch of ideas, each stimulating the other. Butit comes as a set. And herein lies the problem for oceans gover-nance and maritime strategy. Our scientific understanding of theoceans, as it responds to the complexity of ocean phenomena, willfast become dependent on the tools of complex systems theory,and so will increasingly come under the sway of the ideas of thattheory.

The new science will change the idea of policy

Society has renegotiated its contract with science before, butalways from a position of strength, dictating the terms as theneeds of society changed.3 The science of the Renaissance,an extension of medieval philosophy, was seen as a bolster fortheology and the established order. By the time of the Enlighten-ment, the power, particularly of physics and chemistry, to controlthe world through technology led to the creation of a newcontract. Henceforth science was to have a special place in theculture provided that it stuck to its role as the cauldron oftechnology. This situation was reinforced through the IndustrialRevolution and further strengthened in this century.

However, the fruits of science are not only offered to societythrough technology, but also through policy. Today science pro-vides a powerful stream of evidence about the state of the worldinto the policy process—data, information, knowledge—but notideas, or at least not scientific ideas about the nature of policyitself.

Complex systems theory promises to overturn all this. Theevidence it will increasingly be able to provide into the policy

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process cannot be assimilated without embracing the approachitself, since the theory makes no distinction between subject andobject, observer and observed. This is what we mean when wesay that the tools, results and approach of complex systems theorycome as a set.

In a sense, the results of complex systems theory—the resultsthat are so powerfully informing about the world that they willbe irresistible to policy makers—are a Trojan horse. They carrywith them a subversive new scientific way of understanding theworld.

Once in the ocean policy arena, these ideas will meet littleresistance, for the ideas will find a rich, complex but naiveenvironment in which to grow. Ocean policy is a new field withoutthe inertia that comes from years of development and tradition—‘that’s the way we do things round here’. They will be as easilyapplied to the emergence of the law of the sea regime as to theemergence of stability in ecosystems. They will see the similaritiesbetween the adaptation of the policies guiding the Convention forthe Conservation of Antarctic Marine Living Resources and theadaptation of ballast water species to new environments. Theywill see in the hierarchy of ocean law and treaties, such asembedded in the United Nations Law of the Sea Convention(LOSC), a strong similarity with the hierarchy of ocean currentsembedded in the global circulation. They will note the novelty ofhuman behaviour, such as the Brent Spar episode, and compareit to novel oceanic phenomena, such as the breakdown ofthe Larsen ice-shelf. They will see the resilience of humanorganisations, such as the Rio and Kyoto conferences, and thinkof the resilience of natural populations, such as the recovery ofthe great whales. They will liken the expression of individuality-within-generality, as seen in the Regional Seas Agreements of, say,the Mediterranean and the South China Sea, to the expression ofthe same phenomenon of difference embedded in similarity to beseen in the ocean’s great western boundary currents. They willseize on the rich historicity of LOSC, the way its present statedepends on the peculiarities of its history—think of the cannonrange of ancient men-o-war determining modern territorial seas—and compare it to the historicity of ecosystems—say, polar bearsonly in the Arctic and penguins only in the Antarctic.

These new ideas, in short, will start to work on oceans policyas well as for it. The ideas of oceans policy will become one moreinput to a new, more complex, scientific understanding of theoceans.

We will get an oceans policy, and the ideas of oceans governancethat flow from it, come what may. But it will not be just a

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landlubbers’ policy writ large. If it is to be evidence-based (and it isalmost inconceivable today that it would not be), then science willbe there with its data, information and knowledge. And if science isthere, then complex systems theory, for the reasons argued above,bids fair to be there. And if that is the case, the result will be, likeany good complex system, emergent, novel, resilient, adaptive andvery, very interesting.

We shall have, as George Herbert said: ‘Fine nets and strata-gems to catch us in, Bibles laid open, millions of surprises . . .’

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17 Oceanography’s contributionto oceans managementAndrew Forbes

OCEANOGRAPHY’S CONTRIBUTION TO OCEANS MANAGEMENT

The ocean commons are orders of magnitude larger than terrestrialcommons. Even the largest common land, Antarctica, is tinycompared to the area of the oceans, yet we have difficulty collec-tively managing even that territory. We aspire to manage theoceans, but there is no single or collective convention, treaty oragreement on which we can confidently model oceans governance.

The physical scale, although daunting, should not, and is not,preventing individuals, institutions and governments from tacklingthe problem. Why? Because there is a critical mass of people whocare about our oceans, some for conservation or preservation,some for natural resource extraction, some for commerce, recre-ation or defence. Others value the oceans in the realisation thatthey still contain the key to understanding the present climatevariability, and possibly predicting future climate trends.

In order to manage the largest, most complex habitat on theplanet, we clearly need to progress beyond our rudimentaryknowledge of the role that the oceans play in our existence. WalterMunk, renowned Scripps oceanographer, notes, ‘the oceans arenot only the largest reservoir of heat on earth, they are also areservoir of ignorance’.

Of course, we cannot afford to postpone active managementand governance of the oceans until we understand all physical,chemical and biological processes in the oceans. Neither can wewait until all the oceans are mapped, both in the water columnand on the seabed, to distinguish robust ecosystems from fragile,ocean forests from ocean deserts. Future discoveries about how

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the oceans work may reveal, in hindsight, that today’s manage-ment strategies were too conservative. Better that than discoveringthat we were too liberal and initiated an irreversible degradationof the oceans.

We must pursue knowledge of the oceans in parallel withpursuing responsible governance.

Oceanographic research—informing decisions

What form does oceanographic research take, and how can it beinterfaced with and contribute to informing decisions of manage-ment and governance? Until 1957, the International GeophysicalYear, there were no coordinated international oceanographicexpeditions. Institutions acted independently in investigating oceanphenomena, and it is remarkable that basin-scale circulationwas deduced by only a handful of pioneering researchers whopossessed, by today’s standards, simple instruments and verymodest funds.

Once a basic understanding of patterns of large-scale oceancirculation was gained, processes that had been studied in isolationon local scales started to find their place in the bigger picture.Vertical overturning, for example, of the water column in winterat high latitudes was recognised as being vital to understandingglobal circulation. Deep-water hydrographic surveys contributedgreatly to our understanding of pathways of circulation in theinterior of the ocean and established the opportunities and con-straints for waters to exchange properties within and betweenbasins.

The history of ocean observations is essentially a century ofunder-sampling, dictated by the extreme difficulty of synopticallysampling a medium that threatens to corrode, batter and drownthe naive researcher, and severely tests the resources, resolve andingenuity of even the experienced. Despite these difficulties, globaloceanographic data sets have been assembled which incorporatehistorical observations stretching back 50 years in many cases.These have formed the basis of the average or mean field of oceanproperties that provide the baseline or background against whichwe now measure ocean variability.

New techniques, many of them using satellite sensors, haveevolved in the last 20 years that are starting to fill gaps in thesparsely sampled oceans. Global data sets are now more nearlysynoptic, with repeat cycles of ten days or so now common inpolar orbiting satellites. The high-resolution microwave and infra-red sensors carried by satellites have also revealed a level of

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complexity that was unknown to traditional oceanographers usingconventional ship-based instruments.

We now know that the Gulf Stream is more than just a riverin the ocean. Infrared imagery has revealed filaments and eddies,diverging and coalescing streams that place greater demands onphysicists to understand the processes involved, and on mathema-ticians to model and predict their behaviour. The Leeuwin Currentof Western Australia, long thought to be a simple polewardboundary current, has similarly been exposed by satellite imageryas an episodic, highly variable, meandering current, with a com-panion equatorward countercurrent that was discovered onlyrecently.

In terms of oceans management and governance, how much ofthis complexity do we need to understand to provide scientificadvice to policy makers? The answer probably depends on whetheryou are considering living or non-living marine resources. Forcommerce, defence, petroleum or minerals extraction, the level ofdetailed understanding required to inform policy is different thanfor living marine resources.

In Chapter 16, Roger Bradbury referred to the revelation ofthe discovery and mapping of mid-ocean ridges. These effectivelydivide the ocean basins into sub-basins, limiting exchange of deepand abyssal waters. More recently, declassification of militarysatellite gravity data has revealed thousands of previouslyunknown seamounts in the remote areas of the South Atlantic,Pacific, Indian and Southern Oceans. These data, when combinedwith satellite altimeter data (the sea surface bulges above a troughand dips above a seamount) have greatly increased our knowledgeof seafloor features. These seamounts are likely to attract mineralsand fisheries exploration, and thus will require additional oceansmanagement and governance consideration. Further research isclearly needed to map and quantify their potential for naturalresources, before a sensible international seamount governancepolicy can be framed.

Marine life, migratory species in particular, does not recognisenational boundaries. Habitat boundaries do not coincide withpolitical boundaries. So, managing a fishery in one jurisdictionwill not guarantee its survival in another. This is what is calledthe downstream effect. Since the oceans are constantly in motion,what one nation does to exploit or conserve a species in its ownwaters or exclusive economic zone (EEZ) affects downstreamanother nation’s marine living resources.

Ocean currents link nations’ EEZs even though they may bemany thousands of kilometres apart. Oceans governance policymakers recognise this and need specific scientific information to

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help manage the interdependencies with distant neighbours.Oceanographers can contribute valuable knowledge of the ratesof diffusion, advection, transport and mixing of properties suchas heat, salt, nutrients, contaminants and particulates. Currentscarry pollutants just as easily as nutrients, so ultimately a goodneighbour policy must prevail, not only to avoid jurisdictionalarguments but also to protect the oceans and their inhabitants.

National oceans policy—integrated stewardship

At the time of the conference on which this book is based thegovernment had not yet released Australia’s oceans policy. It isimminent, however, and an issues paper will be released and publiccomment will be sought in a final round of consultation beforethe policy is released. Australia is unique in being so close todeclaring her oceans policy. The United States of America, Canadaand Korea are also making progress towards their own nationaloceans policy, and will follow Australia in making these known.Other countries have sectoral policies for oceans management,which may well be broadened to form the basis for nationalpolicies.

Australia’s oceans policy will be the result of consultation withindustry, stakeholders, both private and public, and with thescientific community. The marine research community (includingCommonwealth Scientific and Industrial Research Organisationoceanographers, fisheries biologists and resource managers) hascontributed to the formulation of oceans policy in specific sectors,including: multiple use management of the EEZ; coastal waters;petroleum; and climate, which seems to epitomise the approachthat I have been advocating here. It is vital that scientific knowl-edge and analysis be incorporated in framing such policies.

Australia’s oceans policy’s likely goals are to:

• exercise and protect Australia’s rights and jurisdiction overoffshore areas and offshore resources;

• understand, monitor and conserve Australia’s marine biologicaldiversity, the ocean environment and its resources, and ensurethat ocean uses are ecologically sustainable;

• promote economic development through ecologically sustain-able marine industries;

• accommodate identified and agreed community interests, needsand responsibilities; and

• improve and use our expertise and capabilities in ocean-relatedmanagement, science, technology and engineering.

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Understanding the oceans is seen as a key component ofdeveloping and implementing Australia’s oceans policy. The issuespaper proposes to:

• continue support for strategic, baseline and targeted researchinto ecologically sustainable resource exploitation andimproved environmental management for fisheries, offshorepetroleum and offshore minerals; and

• to provide support for strategic surveys within our EEZ andadjacent waters and progressive improvement in the level ofinformation on biological diversity and marine ecosystem struc-ture and function.

Proposed actions to support these directions include estab-lishment of the Australian Oceanographic Observing System toimprove the collection and management of weather, climate andrelated observations from the ocean.

International oceans management—beyond the EEZ

National oceans policies of most if not all countries will undoubt-edly focus on resources and jurisdictions out to the limits of theEEZ and Claimed Continental Shelf. This is where stewardshipwill transition into collective or joint oceans governance. Theseocean commons will require thoughtful, informed considerationof resource management if the world is to benefit from theirshared use. The oceans must benefit too, and the marine andoceanographic research required to support collective use willoften be multinational or international programs.

Australia’s ocean research leadership

Australia is a leading partner in many international oceanographicresearch programs which underpin policy formulation for oceansgovernance.

The World Ocean Circulation Experiment finished its fieldphase a few years ago, and is now deeply involved in analysis andinterpretation. It is the largest joint oceanographic survey for 30years and involved research ships from at least a dozen nationswho contributed trans-oceanic meridional and zonal sections inall the major ocean basins, over a period of about three years.Australia’s ships and oceanographers formed the backbone of thesouthern high latitude surveys, and are thus in a strong positionto advise on southern oceans management beyond the EEZ.

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The Global Ocean Observing System (GOOS) is a futureinternational cooperative program that will provide routine mon-itoring of the oceans using a multi-nation multi-sensor suite ofconventional and emerging technologies. Australia also has anational GOOS plan embedded in the main program, which willprovide for the first time to the marine science community anocean time series analogue of the World MeteorologicalOrganisation’s global network of weather stations. GOOS will relyheavily on cooperative efforts of many nations, since it is notcentrally funded. GOOS typifies the current model of how globalresearch programs will be funded and must operate. This willcontinue until and unless a majority of developed nations realisethat, in order to manage and govern the shared use of the oceans,they must make a significantly increased investment in acquiringscientific knowledge of the oceans. It comes down to dollars and(common) sense.

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18 Oceans governance—theglobal challenge for thenew centurySam Bateman

THE GLOBAL CHALLENGE FOR THE NEW CENTURY

This chapter reflects the outcomes of the concluding session ofthe Oceans Governance and Maritime Strategy conference. Thissession took the form of a panel discussion involving the fouroverseas speakers at the conference (Professor Edward Miles,Professor Choon Kun Lee, Professor Ji Guoxing and Dr MarkValencia), and Mr John Gillies representing the Portfolio MarineGroup of Environment Australia. The aim of the session was toidentify key issues that had emerged from the conference andpotential challenges for the international community, and Australiain particular, in the new century. Several major themes emergedduring the session:

• the particular challenge for Australia in assuming a leadershiprole in oceans governance, particularly in the Indian and SouthPacific Oceans;

• the challenge for oceans governance arising from ‘creeping’ and‘thickening’ jurisdiction with many countries seeking to exploit‘grey areas’ in the law of the sea and enlarge their rights overmaritime zones;

• the challenge for international fisheries management with thegeneral state of global fish stocks and the particular difficultiesthat are being encountered with achieving effective cooperationfor the management of fisheries in the Asia–Pacific region; and

• the implications of these issues for maritime strategy and thechallenge for navies, in particular, in adapting to the newoperating environment, especially with regard to promoting

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maritime cooperation, establishing oceans governance regimesand enforcing law and order at sea.

Australia’s role

Professor Miles issued a strong call for Australia to play a moreactive role in oceans governance in the Pacific and Indian Oceans.He acknowledged the part that Australia had played during thelast 20 years or so in building regimes for oceans governance.This had included active participation in the development of the1982 United Nations (UN) Law of the Sea Convention (LOSC),and more recently, the negotiation of the Part XI ImplementingAgreement that had resolved the difficulties that some developedcountries, particularly the United States, had had with the seabedmining regime in Part XI of the LOSC. Australia and New Zealandhad also been active in the development of the 1995 UN Agree-ment on Straddling Fish Stocks and Highly Migratory Fish Stocksthat enhances the international law applicable to the managementof fisheries beyond national jurisdiction, as well as in the rangeof measures in the South Pacific to preserve and protect the marineenvironment and manage regional fisheries.

Discussion by the panel suggested, however, grounds for crit-icism of some lack of ‘follow-through’ by Australia. WhileAustralia has been very active in promoting and developing inter-national conventions, regional treaties and arrangements in oceansmanagement, some panellists thought that Australia had beenrather less energetic with following through on the implementationof these agreements. Regardless of whether or not this criticismis well founded, there is now a challenge for Australia to play aproactive role in assisting with the implementation of existingagreements (some of which are not widely adopted in the region),as well as in continuing to play an active part in designing newregimes for oceans governance.

Professor Miles noted that the implementation of existingagreements included both practical implementation with compli-ance and enforcement of treaty provisions, as well as legalimplementation with the wider ratification of international con-ventions and their incorporation into national legislation. Thesewere all areas where many regional countries lacked the requiredcapacity to implement international treaties and thus some of thesetreaties were ‘falling short’ in achieving their desired objectives.

This potential leadership role for Australia was specificallyrecognised in the oceans policy discussion paper released during

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the conference. That paper identified that challenges existed forAustralia to:

• ensure that existing international oceans management regimesare effectively implemented; and

• continue to provide leadership in ensuring that future regimesmeet Australia’s requirements for responsible ocean manage-ment.1

It was a striking coincidence that the public discussion paperon Australia’s Oceans Policy was released during the conference.2

This paper, the result of a lot of effort within the CommonwealthGovernment over recent years,3 is an important step towards anew coordinated national approach to the management of one ofthe largest marine jurisdictions in the world and the extensiveinterests that Australia has in its surrounding oceans. Of mostsignificance for the themes of the conference and this book, theOceans Policy discussion paper included a section on protectingthe national interest, with sub-sections on defence, international,and surveillance and enforcement.

Significant implications of oceans policy lie at the internationallevel. Australia is part of a region that depends heavily upon thesea for foodstuffs, for trade and longer term economic prosperity,but many regional countries lack the capacity to manage theirmaritime interests effectively. They lack the capability to contrib-ute usefully to the management of the oceans that are a commoninterest of all regional countries. As suggested by several panellists,scope exists for Australia to project itself into the Asia–Pacificregion as a major maritime nation with extensive maritime inter-ests and considerable skills and expertise in ocean law, policy andmanagement, as well as in marine science and technology. Itwas useful therefore that the Oceans Policy discussion paperrecognised the challenge for Australia to play a leadership role inthese areas:

In particular, Australia has the capacity and the direct interest totake a regional leadership position in the western Pacific, theIndian Ocean and the Southern Ocean, to establish observingsystems of regional interest and to promote internationalmanagement and research programs.4

Jurisdictional issues

The panel referred to the difficulties that arise from disputes overoffshore jurisdiction and the problems associated with somecoastal states seeking to expand their jurisdiction over offshore

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areas. This can involve these states trying to regulate a wider rangeof activities within their prescribed zones beyond that recognisedunder customary international law (this trend is sometimesreferred to as ‘thickening jurisdiction’). Alternatively, a coastalstate may try to expand the geographical reach of its jurisdictionapplicable to a particular law of the sea zone (referred to as‘creeping jurisdiction’).5 An example of ‘thickening jurisdiction’would be a country seeking to restrict innocent passage of foreignwarships in the territorial sea, while an example of ‘creepingjurisdiction’ would be the excessive use of straight baselines orhistoric bays to extend the limits of the territorial sea and theexclusive economic zone (EEZ).6 No ‘roll-back’ of these excessivemaritime claims appears likely in the foreseeable future and whilesuch claims exist, there is a destabilising element in regionalstability and an ongoing risk of conflict.

While oceans governance generally will be a major challengefor the international community in the new century, a particularchallenge lies in resolving the various jurisdictional problems thatexist and achieving a more effective cooperative approach tooceans governance than exists at present. Without this approach,disorder prevails in many maritime areas of the world withover-fishing, widespread criminal activities at sea, unsafe shipping,pollution, the degradation of marine habitats and the lack ofeffective marine safety services.

The number of areas of uncertainty (‘grey areas’), where ambi-guity exists and subjective judgment could be required alsocomplicates marine jurisdiction in the law of the sea. These includethe principles for determining whether or not a particular islandor islet generates an EEZ; or whether a particular stretch of coastis ‘deeply indented and cut into or if there is a fringe of islandsalong the coast in its immediate vicinity’ such that straight base-lines can be used in accordance with LOSC Article 7. Severalclaims in recent years, including the system of straight baselinesadopted by some regional countries, suggest the proclivity ofcountries to exploit any areas of uncertainty or ambiguity in thelaw of the sea to their own advantage.

LOSC provided for significantly increased coastal state juris-diction and responsibility through the establishment of the EEZregime, the extension of the limits of the territorial sea to12 nautical miles and acceptance of the regime of the archipelagicstate. The expectation was that the EEZ regime, in particular,would improve standards of marine environmental managementand enhance the protection and preservation of the marine envi-ronment. Unfortunately this has not been the outcome and a‘beggar thy neighbour’ attitude is still apparent in oceans man-

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agement. Despite the hortatory principles of LOSC, countries arenot yet recognising that marine resources and environmentsare better managed on the basis of ecosystems7 rather than on thebasis of national boundaries and sovereign rights. As LawrenceJuda has noted, ‘[T]he reality is that EEZs, while politicallydesirable from the perspective of coastal States, are not congruentwith the natural and ecological divisions of ocean space’.8

In many ways the ‘tragedy of the commons’ still exists wherebycountries, motivated by considerations of sovereignty and inde-pendence, are acting in their own self-interest and creating asituation in which all lose.9 Professor Miles noted the lack oftransparency of what coastal states are doing to fulfil their obli-gations with regard to managing their marine jurisdictions, thelack of systematic monitoring of performance and that the recordof some coastal states with oceans management is ‘appalling’. Healso observed that, while Part XIV of LOSC requires countries tocooperate to promote the development and transfer of marinescience and marine technology, so far this part of LOSC had been‘symbolic’ only.

Professor Miles also noted the problems that have been encoun-tered in recent years with the movement by sea of nuclear wastethrough the Asia–Pacific region. He thought that this movementwould inevitably increase. The more frequent shipment of nuclearwaste would be a consequence of the greater use of nuclear energyto replace the diminishing stock of fossil fuels. He also foresawthe possibility of deep ocean dumping of nuclear waste as reallythe only feasible means of disposing of this material. These areall challenges for oceans governance.

Fishing

The panel mentioned the challenge of achieving a more effectiveapproach to international fisheries management. The managementof fisheries outside areas of national jurisdiction remains the mostproblematic area of oceans governance and, as one panelist sug-gested, fisheries management is at the ‘heart’ of every oceanmanagement regime. Fisheries management has been the ‘unfin-ished business’ of LOSC, particularly with regard to ‘straddlingstocks’ that are partly within the jurisdiction of one or morecoastal states and partly on the high seas, and ‘highly migratorystocks’ that move from one jurisdiction to another.

In the face of over-capitalisation in size of the world fishingfleet, widespread illegal fishing and the decimation of many of themost important stocks of eating fish, the freedom to fish has been

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clearly and without qualification removed from the freedom ofthe high seas. The situation with fishing generally is a pessimisticone. The pressure on global fish stocks comes from all directions,but particularly from the ever-growing world population and theincreased scarcity of the resource itself. It is apparent that thenecessary increase in fish catches to maintain the protein levels inhuman consumption previously provided from eating fish is notgoing to occur.

The situation with fishing in the Asia–Pacific region is partic-ularly serious. Most East Asian countries have a high dependenceon fish and related marine products as a source of protein. Morethan half of the world’s fish are caught and bred in Asian watersand slightly more than half are consumed in the region.10 Apartfrom the importance of subsistence fishing and domestic marketsupply, many East Asian countries also look to the living resourcesof their EEZs as an important source of export income, and someare leading distant water fishing nations (DWFNs) fishing for boththe domestic and export markets. Fish and fishing are importantpolitical issues in the region and fisheries management and accessarrangements are major factors in regional relations. The principalDWFNs of Japan, South Korea, Taiwan and Thailand are partic-ularly affected by tighter access controls by coastal states andinternational arrangements to control straddling stocks and highlymigratory species, including on the high seas. Also, China is nowan emerging DWFN with the level of Chinese longline fishingactivity in the Western and Central Pacific increasing over the lastdecade.

While shared stocks and fishing grounds create some common-ality of interest, they also present a potential source of tension,particularly when jurisdictional problems and resource accessissues are present. Incidents have occurred in the region whenfishing boats, particularly Thai vessels, have been fired upon oreven sunk.11 It is not unusual for fishing vessels to be escorted bynaval vessels when undertaking fishing operations in disputedwaters and this situation poses the risk of direct confrontationbetween the naval forces of regional countries.

The 1994 UN Agreement on Straddling Fish Stocks and HighlyMigratory Stocks represents good progress towards resolving someof the ‘unfinished business’ of LOSC, but it may be some timebefore this agreement enters into force.12 Particular challenges foroceans governance lie in implementing the regional organisationsand arrangements provided for in this treaty and effectively enforc-ing its provisions. While the flag states of fishing vessels have thelead role in the enforcement process, the agreement also provides

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for cooperative action on the high seas to enforce its provisionsin circumstances when flag state enforcement is ineffective.

Implications for navies

The chapters in this book demonstrate the profound changes thathave occurred in recent decades in the operating environment ofnavies. The naval operating environment is now much moreregulated by new regimes of oceans governance than it waspreviously. It is incumbent upon navies to identify the implicationsof these new regimes for naval operations, including the role thatnavies will have in the enforcement of the regimes. In the past,navies have tended to see these non-warfighting missions asdetracting from their ‘core’ business but it is not a ‘zero-sum’game and navies may have to accept new roles, particularly inhigh seas enforcement, without any reduced emphasis on theirprimary warfighting missions. These new roles could lead to newtypes of naval vessel, such as long-range, high-endurance, air-capable, patrol vessels, possibly operated cooperatively by two ormore countries or on a regional basis.

The new regimes of oceans governance at the global andregional levels, as well as oceans policy at a national level, areimportant inputs to maritime strategy. The significance of nationaloceans policy in the context of the themes of this book cannot beoverstated. Oceans policy sets out a strategy for maximisingeconomic, social and political benefits from the oceans and is thebasis of both oceans governance and maritime strategy. If oneeschews a purely military concept of maritime strategy then inmany ways a comprehensive oceans policy, establishing a devel-opment and management regime for national maritime interests,constitutes a large element of maritime strategy.

Two main implications for navies flow out of consideration ofthe challenge of oceans governance. The first is the role of naviesin contributing to more effective oceans governance and promotingmaritime cooperation, and the second is the greater priority nowto be attached to the protection of offshore areas and resourcesboth in national areas of maritime jurisdiction and possibly onthe high seas. This protection is an integral component of nationalsecurity. In Australia’s case, the importance of the oceans isrecognised in the discussion paper on Australia’s Oceans Policy:

Oceans define Australia’s geography and are critical to our security.They link us with our trading partners, provide resources andwealth and offer a defence against possible aggression.13

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Conclusion

In view mainly of increased awareness of the importance of theoceans to the global ecosystem and the contribution of marineresources to energy and food security, future global security islargely dependent on effective management of the world’s oceans.This is a complex task that requires the solution of major prob-lems, such as territorial disputes that threaten peace and security,global climate change, illegal and excessive fishing, pollution, drugsmuggling, congested shipping lanes, sub-standard ships, illegalmigration, and piracy. These problems will only be addressed byincreased cooperation based on sound knowledge, informationsharing, increased awareness that problems actually exist, and thedevelopment of appropriate legal and management regimes.

The need to manage the oceans and their resources moreeffectively, and in a way that protects the interests of futuregenerations, is leading to new regimes for oceans governance andgreater controls over the activities that can legitimately be under-taken at sea. The resultant regimes, applying for example tofishing, marine biodiversity and marine pollution, are oftencontrary to traditional management approaches that were basedlargely on the freedom of the seas. There are major implicationsof these regimes for the way that navies do their business, includ-ing the likelihood of new restrictions on freedoms and rights ofnavigation.

Some of the maritime strategic implications of these newapproaches are readily apparent in terms of both cause and effect.A significant cause of the new regimes is the need to reduce therisks of conflict arising from the many unresolved problems of theoceans, particularly those related to jurisdictional disputes andconflicts of interest over different uses of the sea. These problemswill only be solved by increased cooperation based on soundknowledge, information-sharing, increased awareness and thedevelopment of appropriate legal and management regimes. Aneffect then of the new regimes is the need for new managementarrangements and infrastructure, as well as higher levels ofsurveillance, enforcement and control over ocean space. These willbe achieved both on a national basis and through cooperativearrangements with friends and neighbours. Inevitably there willbe implications for the role of navies. In their role as the funda-mental maritime security agency of government, navies cannotescape the impact of the revolution that is occurring with oceansgovernance.

Oceans Governance and Maritime Strategy was a timely con-ference occurring at a time when increased attention was being

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focused on the needs of oceans management both at the nationaland international levels. The international community and indi-vidual nations are paying increased attention to the needs ofoceans governance. This is in response to the jurisdictional revo-lution in the law of the sea reflected in LOSC, the expansion ofeconomic activities at sea, increased concern for the health of theworld’s oceans, and awareness of the importance of ecologicallysustainable development. The issues involved are particularlyimportant for Australia and with the advent of Australia’s OceansPolicy, Australia is now on the threshold of a new era of recog-nition of the full significance of the oceans to the future securityof Australia.

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Notes

NOTES

1 The new ocean regime

1 Edward L. Miles, Organisational Arrangements to Facilitate the GlobalManagement of Fisheries, Resources for the Future, Inc., Program ofInternational Studies of Fisheries Arrangements, 1974. Edward L.Miles, ‘An Assessment of the Impact of Proposed Changes in the Lawof the Sea on Regional Fishery Commissions, on FAO TechnicalAssistance Programs in Fisheries and on the FAO Committee onFisheries and Department of Fisheries’, Ocean Development and Inter-national Law Journal, vol. 4, no. 4 1977, pp. 409–40. Edward L.Miles and John Gamble (eds), Law of the Sea: Problems of Implemen-tation, Ballinger Publishing Co., Cambridge, 1977. Edward L. Miles,‘On the Utility of Regional Arrangements in the New Ocean Regime’,in Regionalization of the Law of the Sea, ed. Douglas Johnston,Ballinger Publishing Co., Cambridge, 1978. Edward L. Miles, ‘On theRoles of International Organisations in the New Ocean Regime’, inThe Law of the Sea in the 1980s, ed. Choon-ho Park, University ofHawaii Press, Honolulu, 1983, pp. 383–445. Edward L. Miles, ‘IOCData and Information Exchange: Implications of the Law of the SeaConvention’, Marine Policy, vol. 7, no. 2, April 1983, pp. 75–89.Edward L. Miles and Scott Allen (eds), The Law of the Sea and OceanDevelopment Issues in the Pacific Basin, University of Hawaii Press,Honolulu, 1983. Edward L. Miles et al., The Management of MarineRegions: The North Pacific, University of California Press, Los Ange-les, Berkeley and London, 1982. Edward L. Miles et al., Atlas ofMarine Use for the North Pacific Region, University of CaliforniaPress, Los Angeles, Berkeley and London, 1982. Tadao Kuribayashiand Edward L. Miles (eds), The Law of the Sea in the 1990s: A

214

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Framework for Further International Cooperation, Law of the SeaInstitute, University of Hawaii, Honolulu, 1992.

2 Edward L. Miles, ‘The Future of Distant Water Fishing’, in The Lawof the Sea: Problems from the East Asian Perspective, eds Choon-hoPark and Jae Kyu Park, University of Hawaii Press, Honolulu, 1987,pp. 18–25. Edward L. Miles, ‘The Evolution of Fisheries Policy andRegional Commissions in the North Pacific Under the Impact ofExtended Coastal State Jurisdiction’, in Essays in Memory of JeanCarroz: The Law and the Sea, FAO, Rome, 1987, pp. 139–57. EdwardL. Miles (ed.), The Management of World Fisheries: Implications ofExtended Coastal State Jurisdiction, University of Washington Press,Seattle, 1989. Edward L. Miles, ‘Les Dimensions Internationales del’Amenagement de la Peche’, dans L’Homme et les EcosystemesHalieutiques et Aquacoles Marins, ed. Jean-Paul Troadec, IFREMER,Paris, 1989, pp. 681–709. Edward L. Miles and William T. Burke,‘Pressures on the United Nations Convention on the Law of the Seaof 1982 Arising from New Fisheries Conflicts: The Problem of Strad-dling Stocks’, Ocean Development and International Law Journal,vol. 20, 1989, pp. 343–57. Edward L. Miles, ‘Towards More EffectiveManagement of High Seas Fisheries’, Asian Yearbook of InternationalLaw, vol. III, no. 1, 1993. William Burke, Marc Freeberg, and EdwardMiles, ‘The United Nations Resolutions on Driftnet Fishing: An Unsus-tainable Precedent for High Seas and Coastal Fisheries Management’,Ocean Development and International Law Journal, vol. 25, 1994,pp. 127–86. Edward L. Miles, ‘The International Dimension of Fish-eries Management: Past, Present, and Future’, 75 Years: An EminentPast, A Challenging Future, School of Fisheries, University of Wash-ington, Seattle, 1994, pp. 104–13.

3 Edward L. Miles, ‘United States Distant-Water Oceanography in theNew Ocean Regime’, in Oceanography: The Next Fifty Years, ed. PeterG. Brewer, Springer Verlag, New York, 1982, pp. 284–301. OceanPolicy Committee, Commission on International Relations, NAS/NRC,United States Interest and Needs in the Coordination of InternationalOceanographic Research. Edward L. Miles, Rapporteur, Report of aWorkshop, National Academy of Science, Washington DC, 1981.Edward L. Miles, ‘Concepts, Approaches and Applications in Sea UsePlanning and Management’, Ocean Development and InternationalLaw Journal, vol. 20, 1989, pp. 213–38. Edward L. Miles, ‘FutureChallenges in Ocean Management: Towards Integrated National OceanPolicy’, in Ocean Management in Global Change, ed. Paolo Fabbri,Elsevier Applied Science, London and New York, 1992, pp. 595–620.Edward L. Miles, ‘Guidelines for Integrated Planning of Ocean Policy’,in Integrated National Ocean Policy, ed. Evelyne Melzer, in press,1998.

4 Edward L. Miles, ‘Ocean Policy Development in the 1990s: The Usesand Limitations of the Diplomatic Arena’, in Summary and SelectedPapers of the SEAPOL TM-Regional Conference, eds Kathleen I.Matics and Ted L. McDorman, SEAPOL, Bangkok, 1995, pp. 32–60.Edward L. Miles, ‘The Approaches of UNCLOS III and Agenda 21—A

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Synthesis’, in Sustainable Development and Preservation of theOceans: The Challenges of UNCLOS and Agenda 21, eds MochtarKusuma-Atmadja, Thomas A. Mensah and Bernard Oxman, Law ofthe Sea Institute, University of Hawaii, Honolulu, 1997, pp. 16–42.Edward L. Miles, ‘The Concept of Ocean Governance: EvolutionToward the 21st Century and the Principle of Sustainable Ocean Use’,paper presented to the SEAPOL Workshop on Ocean Governance andSystem Compliance in the Asia–Pacific Context, Rayong, Thailand,December 9–11, 1997, submitted to Coastal Management, in press.

5 See the exchange of views between Francisco Orrego Vicuña andThomas Clingan, in The Law of the Sea: New Worlds, New Discov-eries, ed. Edward Miles and Tullio Treves, Law of the Sea Institute,Honolulu, 1993, pp. 427–9 and 441–2.

6 Stephen D. Krasner, ‘Structural Causes and Regime Consequences:Regimes as Intervening Variables’, International Organisation, vol. 36,no. 2, Spring 1982, p. 185.

7 Michael Zürn, ‘Consequences of Regime Definitions and Definitionsof Regime Consequences: Proposals for a Data Bank on InternationalRegimes’, in Working Paper Prepared for the ‘Regimes Summit’, heldat Dartmouth College, October 1991, p. 8.

8 This story is told in detail in chapters one and two of Edward L.Miles, Global Ocean Politics: The Decision Process at the ThirdUnited Nations Conference on the Law of the Sea, 1973–1982, KluwerLaw International, The Hague, 1998.

9 Tommy T.B. Koh and Shanmugam Jayakumar, ‘Negotiating Process ofthe Third United Nations Conference on the Law of the Sea’, in UnitedNations Convention on the Law of the Sea 1982: A commentary, ed.Myron H. Nordquist, vol. I, Martinus Nijhoff Publishers, Dordrecht,1985, pp. 29–134.

10 Preparatory Committee for the United Nations Conference on Envi-ronment and Development, Third Session, Geneva, 12 August–4 September, 1991, Working Group III, Survey of Existing Agree-ments and Instruments, and Criteria for Evaluation, Doc.#A/CONF.151/PC/[**], Advance Draft, 10 June 1991.

11 ibid.12 Elinor Ostrom, Governing the Commons: The Evolution of Institu-

tions for Collective Action, Cambridge University Press, Cambridge,1990.

13 ibid., p. 45.14 Robert D. Putnam, Making Democracy Work: Civic Traditions in

Modern Italy, Princeton University Press, Princeton, NJ, 1993.15 Peter M. Haas, Robert O. Keohane, and Marc A. Levy, Institutions

for the Earth, MIT Press, Cambridge, MA, 1993.16 David G. Victor with Abram Chayes and Eugene B. Skolnikoff,

‘Pragmatic Approaches to Regime Building for Complex InternationalProblems’, in Global Accord: Environmental Challenges and Interna-tional Responses, ed. Nazli Choucri, The MIT Press, Cambridge, MA,1993, pp. 453–74.

17 Edward Miles et al., Explaining Regime Effectiveness: The Crucial

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Interplay of Problem Type and Institutional Response Capacity,unpublished draft MS, 1998.

18 ‘. . . the Secretary-General shall: (a) report to all States Parties, theAuthority, and competent international organisations on issues of ageneral nature that have arisen with respect to this Convention . . .’Judge Thomas A. Mensah, President of the International Tribunal forthe Law of the Sea, has made a similar argument for periodic meetingsof Conferences of States Parties. See: Thomas A. Mensah, ‘The Casefor Universal Acceptance and Implementation of the 1982 Conventionon the Law of the Sea’, in Implications of Entry into Force of theLaw of the Sea Convention for US Ocean Governance, eds BilianaCicin-Sain and Katharine A. Leccese, Ocean Governance Study Group,Newark, DE, 1995, pp. 20–1.

19 See B.A. Hamzah, ‘Navigational Safety and Environmental Protectionin the Straits of Malacca: The Need for Global Funding’, in SustainableDevelopment and Preservation of the Oceans: The Challenges ofUNCLOS and Agenda 21, eds Mochtar Kusuma-Atmadja, Thomas A.Mensah, and Bernard H. Oxman, Law of the Sea Institute, Honolulu,1997, pp. 518–41.

20 See, for instance: J. Ashley Roach and Robert W. Smith, InternationalLaw Studies 1994: Excessive Maritime Claims, vol. 66, Naval WarCollege, Newport, RI, 1994; Francisco Orrego Vicuña, ‘Trends andIssues in the Law of the Sea as Applied in Latin America’, OceanDevelopment and International Law Journal, vol. 26, 1995, pp. 93–103.Earlier assessment would include: J.E. Carroz and M.J. Savini, BilateralFisheries Agreements, FAO Fisheries Circular 709, DOC. FID/C709,1978; Gerald Moore, Legislation on Coastal State Requirements forForeign Fishing, FAO, Rome, 1981; Carl August Fleischer, ‘LivingResources: Global Situation With Respect to National Legislation,Bilateral Agreements, and Regional Commissions’, in Law of the Sea:State Practice in Zones of Special Jurisdiction, ed. Thomas A. Clingan,University of Hawaii Press, Honolulu, 1982, pp. 87–119; Jean Carrozand Michel Savini, ‘The Practice of Coastal States Regarding ForeignAccess to Fishery Resources’, in Report of the Expert Consultation onthe Conditions of Access to the Fish Resources of the ExclusiveEconomic Zone, FAO, Rome, 1983, Annex 2, pp. 43–72; Edward L.Miles (ed.), The Management of World Fisheries: Implications ofExtended Coastal State Jurisdiction; Warren S. Wooster, ‘Research inTroubled Waters: U.S. Research Vessel Clearance Experience, 1972–1978’, Ocean Development and International Law Journal, vol. 9, nos3–4, 1981, pp. 219–39; John A. Knauss and Mary Hope Katsouros,‘The Effect of the Law of the Sea on Marine Scientific Research inthe United States: Recent Trends’, in The UN Convention on the Lawof the Sea: Impact and Implementation, eds E.D. Brown and R.R.Churchill, Law of the Sea Institute, Honolulu, 1987, pp. 373–82;Alfred H.A. Soons, ‘The Developing Regime of Marine ScientificResearch: Recent European Experience and State Practice’, in NewDevelopments in Marine Science and Technology: Economic, Legal,

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and Political Aspects of Change, eds Lewis Alexander et al., Law ofthe Sea Institute, Honolulu, 1988, pp. 293–307.

21 See, for instance, Office for Ocean Affairs and the Law of the Sea,Marine Scientific Research: A Guide to the Implementation of theRelevant Provisions of the United Nations Convention on the Law ofthe Sea, United Nations, New York, 1991.

22 It should be acknowledged that the Executive Branch of the USGovernment is strongly in support of the Convention. Center forNational Security Law, Is the 1982 Law of the Sea Convention Ripefor Ratification? A Capitol Hill Forum, University of Virginia, Wash-ington, DC, 19 November 1997.

2 Oceans governance and its impact on maritime strategy

1 Hans Morgenthau, ‘Realism in International Politics’, paper deliveredto Naval War College, Newport, RI, 2 October 1957.

2 P.M. Wijkman, ‘Managing the Global Commons’, InternationalOrganisation, vol. 36, no. 3, 1982, p. 512.

3 John Vogler, The Global Commons: A Regime Analysis, John Wileyand Sons, Brisbane, 1995, pp. 1–21.

4 Philip Allott, ‘Mare Nostrum: A New International Law of the Sea’,American Journal of International Law, vol. 86, 1990, pp. 764–87.

5 George V. Galdorisi and Kevin R. Vienna, Beyond the Law of the Sea:New Directions for US Oceans Policy, Praeger, Westport, 1997, pp. 8.

6 Thomas Clingan, The Law of the Sea: Ocean Law and Policy, Austinand Winfield, San Francisco, 1994, p. 11.

7 George V. Galdorisi and Kevin R. Vienna, Beyond the Law of the Sea, p. 8.8 ibid., p. 9.9 ibid., p. 10.

10 ibid., p. 11.11 D.P. O’Connell, The International Law of the Sea, Clarendon, Oxford,

1982, pp. 19–21.12 George V. Galdorisi and Kevin R. Vienna, Beyond the Law of the Sea,

p. 23.13 ibid.14 William Schachte Jr., ‘National Security: Customary International Law

and the LOS Convention’, address at Georgetown International LawSymposium, Implementing the United Nations Convention on the Lawof the Sea, Washington, DC, January 1995.

15 Sam Bateman, ‘The problems of oceans governance in East Asia’,Singapore Business Times, 27–28 January 1996, p. iv.

16 James B. Morell, The Law of the Sea: An Historical Analysis of the1982 Treaty and its Rejection by the United States, McFarland,Jefferson, 1992, pp. 179–86.

17 E.B. Potter and C.W. Nimitz, Seapower, A Naval History, Prentice-Hall, New Jersey, 1960, p. 183.

18 George V. Galdorisi and Kevin R. Vienna, Beyond the Law of the Sea:New Directions for US Oceans Policy, pp. 122–3.

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19 A.T. Mahan, The Influence of Seapower Upon History, Hill and Wang,1957, pp. 22–3.

20 Joseph R. Morgan, ‘Collective security and the changing role ofnavies’, in Ocean Governance: Sustainable Development of the Seas,ed. Peter Bautista Payoyo, UN University Press, Tokyo, 1994, p. 297.

21 Ken Booth, Navies and Foreign Policy, Holmes, Meier Publishers Inc.,New York, 1979, pp. 15–25.

22 Ken Booth, ‘The New Word Order and the Future of Naval Power’,Journal of the Australian Naval Institute, vol. 17, no. 4, November1991, pp. 17–33.

23 Nien-Tsu Alfred Hu and James K. Oliver, ‘A Framework for SmallNavy Theory: The 1982 UN Law of the Sea Convention’, Naval WarCollege Review, Spring, 1988, p. 37.

24 Sam Bateman, ‘Naval Roles and Maritime Power’, Maritime Studies,vol. 84, September/October 1995, p. 13.

25 Nien-Tsu Alfred Hu and James K. Oliver, ‘A Framework for SmallNavy Theory: The 1982 UN Law of the Sea Convention’, p. 43.

26 Teo Chee Hean, ‘Maritime Power in Southeast Asia’, Journal of theAustralian Naval Institute, November 1991, p. 14.

27 Alastair Cooper, ‘Naval Forces Come Aground’, USNI Proceedings,March 1998, p. 56.

28 Commander Dennis R. Neutze, USN ‘Whose Law of the Sea?’ USNIProceedings, January 1983, p. 48.

29 Ken Booth, Law, Force and Diplomacy at Sea, George Allen & Unwin,London, 1985, p. 45.

30 Derek Boothby, ‘Sailing Under New Colours’, USNI Proceedings, July1992, p. 48.

31 For discussion on this matter with respect to multinational operationssee Commander Peter Jones, ‘Multi-National Operations: TheirDemands and Impact on Medium Power Navies’, in Maritime SecurityWorking Papers No. 3, eds F.W. Crickard and G.L. Witol, CFPS,Halifax, May 1996.

32 Dick Sherwood, The Navy and National Security: The PeacetimeDimension, SDSC, Canberra, 1994, pp. 31–2.

33 Geoffrey Till, Maritime Strategy and the Nuclear Age, 2nd edn,Macmillan, London, 1984, p. 203.

34 Joseph R. Morgan, ‘Collective security and the changing role ofnavies’, p. 301.

35 Sam Bateman, ‘The problems of oceans governance in East Asia’, p. iv.36 RADM F.W. Crickard, ‘Oceans Policy and Maritime Strategy’, Cana-

dian Defence Force Quarterly, vol. 19, no. 5, Spring 1990, p. 15.37 D.P. O’Connell, The International Law of the Sea, Clarendon, Oxford,

1982, p. 1.

3 Seapower and security at the close of the twentieth century

1 Zbigniew Brzezinski, Game Plan: How to Conduct the US–SovietContest, Atlantic Monthly Press, Boston, 1986, pp. 3–29.

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2 Colin S. Gray, The Leverage of Seapower: The Strategic Advantage ofNavies in War, Free Press, New York, 1992, p. 263.

3 Colin S. Gray, The Leverage of Seapower, p. 274.4 Greg Herken, Counsels of War, Alfred A. Knopf, New York, 1985,

p. 5.5 Colin S. Gray, The Leverage of Seapower, pp. 276–7.6 Zalmay Kharilzad, From Containment to Global Leadership?: America

and the World After the Cold War, Rand, Santa Monica, 1995.7 Colin S. Gray, The Leverage of Seapower, pp. 276–7.8 IISS, The Military Balance 1997–1998, Oxford University, London,

1997, p. 298, in 1995 dollars.9 Dan Smith, The State of War and Peace Atlas, Penguin Books, New

York, 1997, p. 13.10 Hiramatzu Shigeo, China’s Naval Strategy (in Japanese), Geiso Pub-

lishing Co., Tokyo, 1993.11 Andrew Mack, Island Disputes in Northeast Asia, paper presented at

the 5th International Sea power Symposium, Seoul Hilton Hotel,August 5–6, 1997, p. 1; Kent E. Calder, ‘Fueling the Rising Sun: Asia’sEnergy Needs and Global Security’, Harvard International Review,Summer 1998, p. 68.

12 Dr Lee, Seo-hang of the IFANS summarised the worries of the WesternPacific in this manner.

13 Richard Bernstein and Ross H. Munro, The Coming Conflict withChina, Alfred A. Knopf, New York, 1997.

14 United States Department of the Navy . . . From the Sea: Preparingthe Naval Service for the 21st Century, The Library, Washington DC,1992.

15 Casper Weinberger and Peter Schweitzer, The Next War, The RegneryPress, Washington, DC, 1996, p. xv.

16 John Lehman, ‘A US Navy for the post Cold War world’, The Worldand I, December 1993, pp. 424–31.

4 The oceans and Australian defence

1 Australia’s Ocean Policy, Ocean Facts and Figures, Background Paper1, Commonwealth of Australia 1997.

2 Chiefs of Staff Committee Minute 11/1946, 20 Mar 1946, NavalHistorical Records, Department of Defence (Navy Office).

3 Appreciation by the Chiefs of Staff of the Strategic Position of Aus-tralia, September 1947, CRS A5954, Australian Archives (AA).

4 ibid.5 Council of Defence meeting, 6 March 1947, CRS A7535, Item 14,

AA.6 DCM 70/1953, 3 March 1953, CRS AZ031, AA.7 T.B. Millar ‘Australia’s Defence 1945–65’, in Australia in World Affairs

1961–65, eds Greenwood and Harper, Melbourne, 1968, p. 279.8 The Naval Plan, DCNS Minute 4 July 1955, CRS A816, Item

5202/21/29, AA.

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9 H.J. Donohue ‘The Evolution of Australian Defence Thinking’ inEvolving Pacific Basin Strategies, ed. Dora Alves, National DefenceUniversity Press, 1990, p. 288.

10 Australian Defence, AGPS, 1976, p. 14.11 ibid., p. 13.12 Review of Australia’s Defence Capabilities, Report to the Minister for

Defence by Mr Paul Dibb, March 1986, AGPS, 1986.13 Australia’s Strategic Planning in the 1990s, Departmental Publications,

1992.14 Defending Australia, AGPS, 1994, p. 26.15 Australia’s Strategic Policy, Commonwealth of Australia, 1997, p. 44.16 J. Mortimer, ‘The Foundation of the Australian Navy 1901–14’,

Defence Force Journal, no. 61, November/December 1986, p. 38.

5 Regional maritime security

1 See Desmond Ball (ed.), The Transformation of Security in theAsia/Pacific Region, Frank Cass, London, 1996.

2 See Desmond Ball, ‘The Post Cold War Maritime Strategic Environ-ment in East Asia’, in Maritime Power in the China Seas: Capabilitiesand Rationale, ed. Dick Sherwood, Australian Defence Studies Centre,Australian Defence Force Academy, Canberra, 1994, pp. 3–34.

3 Cited in Reme Ahmad, ‘Malaysia: Malaysia PM Slams Nations ThatSee China as a Threat’, Reuter News Service, 23 January 1995.

4 David Shambaugh, ‘Pacific Security in the Pacific Century’, CurrentHistory, December 1994, p. 428.

5 See Banning Garrett and Bonnie Glaser, ‘Multilateral Security in theAsia-Pacific Region and its Impact on Chinese Interests: Views fromBeijing’, Contemporary Southeast Asia, vol. 16, no. 1, June 1994,pp. 14–34.

6 Desmond Ball, ‘The Post Cold War Maritime Strategic Environmentin East Asia’, pp. 11–12.

7 The International Institute for Strategic Studies, The Military Balance1997/98, Oxford University Press, Oxford, 1997, pp. 164–98.

8 Ian Anthony, Agnes Courrades Allenbeck, Paolo Miggiano, ElisabethSkons and Herbert Wulf, ‘The Trade in Major Conventional Weapons’,in Stockholm International Peace Research Institute (SIPRI), SIPRIYearbook 1992: World Armaments and Disarmament, Oxford Univer-sity Press, Oxford, 1992, p. 308; Ian Anthony, Paul Claesson, GerdHagmeyer-Gaverus, Elisabeth Skons, and Siemon T. Wezeman, Table13B.1, ‘Volume of Imports of Major Conventional Weapons’, in SIPRI,SIPRI Yearbook 1994, Oxford University Press, Oxford, 1994, p. 510;and Bates Gill, Table 13E.1, ‘Trends in the Import and LicensedProduction of Major Conventional Weapons in East Asia, 1984–93’,in SIPRI, SIPRI Yearbook 1994, p. 552.

9 Defence Intelligence Organisation (DIO), Defence Economic Trends inthe Asia-Pacific 1997, Australian Government Publishing Service, Can-berra, 1997, Tables 24 and 25.

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10 Desmond Ball, ‘Arms and Affluence: Military Acquisitions in theAsia-Pacific Region’, International Security, vol. 18, no. 3, Winter1993/94, pp. 94–5.

11 The International Institute of Strategic Studies (IISS), The MilitaryBalance 1997/98, pp. 164–98.

12 Desmond Ball, ‘Northeast Asia and Security Cooperation in the Asia-Pacific Region’, in Asia-Pacific Security: Challenges and Prospects forNorth East Asia, ed. R.K. Thomas, Australian College of Defence andStrategic Studies, Canberra, 1997, pp. 60–2.

13 See Desmond Ball, ‘Arms and Affluence: Military Acquisitions in theAsia-Pacific Region’, International Security, vol. 18, no. 3, Winter1993/94, pp. 78–112; and Desmond Ball, ‘Arms Acquisitions in theAsia-Pacific: Scale, Positive and Negative Impacts on Security andManaging the Problem’, in The Emerging Regional Security Architec-ture in the Asia-Pacific Region, ed. Thangam Ramnath, Institute ofStrategic and International Studies (ISIS) Malaysia, Kuala Lumpur,1996, pp. 199–233.

14 For further discussion of the conceptual relationships between econom-ics and security, see Desmond Ball, ‘The Benefits of APEC for SecurityCooperation in the Asia-Pacific Region’, in Power and Prosperity:Economics and Security Linkages in Asia-Pacific, eds Susan L. Shirkand Christopher P. Twomey, Transaction Publishers, New Brunswick,New Jersey, 1996, pp. 35–56.

15 Desmond Ball, ‘Arms and Affluence: Military Acquisitions in theAsia-Pacific Region’, pp. 81–2.

16 Peter Alford, ‘Arms Merchants Face Tough Times’, The Australian,17 October 1997.

17 Nate Thayer and Charles Bickers, ‘Market Misfire: Arms Sellers Hurtas Asia Abandons Pricey Weapons’, Far Eastern Economic Review,5 February 1998, p. 23.

18 Barbara Opall, ‘Economy Forces Jakarta to Focus on Home Defense’,Defense News, 23 February – 1 March 1998, p. 3.

19 Robert Karniol, ‘Thailand Bailed Out Over Hornet Cancellation Cost’,Jane’s Defence Weekly, 25 March 1998, p. 12; Gary Klintworth,‘Regional Defence Budgets Slashed’, Asia-Pacific Defence Reporter,April–May 1998, pp. 12–14; and ‘Cuts and Indonesia’s DefenceForces’, Asia-Pacific Defence Reporter, April–May 1998, p. 34.

20 Desmond Ball, ‘Arms Acquisitions in the Asia Pacific: Scale, Positiveand Negative Impacts on Security and Managing the Problem’, p. 211.

21 ‘Jakarta Stays With Plan to Buy 16 Hawk Jets’, ADJ News Roundup,vol. 2, no. 2, February 1998, p. 2.

22 ‘Navy Will Spend $600m on Frigates’, The Straits Times, 28 April1998, p. 23.

23 ‘Philippines’ $13b Force Modernisation Plan’, The Straits Times,28 April 1998, p. 19.

24 Barbara Opall, ‘Economy Forces Jakarta to Focus on Home Defense’,Defense News, 23 February – 1 March 1998, pp. 3, 52.

25 ‘In Brief’, Jane’s Defence Weekly, 1 April 1998, p. 10.

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26 See, for example, Ian McPhedran, ‘Defence Fear in North as IllegalFlights Evade Radar’, Courier Mail, 15 April 1998, p. 7.

27 ‘Joint Exercises and Training Cut Back’, ADJ News Roundup, vol. 2,no. 2, February 1998, p. 2.

28 ibid.29 Robert Karniol, ‘Thailand Bailed Out Over Hornet Cancellation Cost’,

Jane’s Defence Weekly, 25 March 1998, p. 12.30 Frank Cranston, ‘Economic Crisis Hits Defence Planning’, Canberra

Times, 29 April 1998, p. 5.31 See Desmond Ball and Pauline Kerr, Presumptive Engagement: Aus-

tralia’s Asia-Pacific Security Policy in the 1990s, Allen & Unwin,Sydney, 1996.

32 See Desmond Ball, ‘The Agenda for Cooperation’, in Asia-PacificSecurity: The Challenges Ahead, ed. Ray Funnell, Directorate of Pub-lishing, Department of Defence, Canberra, 1996, pp. 50–77.

33 See Vice Admiral Ian D.G. MacDougall, Chief of Naval Staff (CNS),RAN, ‘The Inaugural Western Pacific Naval Symposium WorkshopHeld in Sydney, Australia on 9–10 July 1992’, in Western Pacific NavalSymposium, Summary of the Third Western Pacific Naval Symposium,Honolulu, 2–3 November 1992, pp. 9.2–9.10.

34 ibid., pp. 9.5–9.7.35 See Desmond Ball and Pauline Kerr, Presumptive Engagement,

pp. 23–5.36 ‘The Jane’s Interview’, Jane’s Defence Weekly, 19 February 1994,

p. 52.37 ‘Chairman’s Statement of the Second ASEAN Regional Forum (ARF),

1 August 1995, Bandar Seri Begawan’, p. 1. See also ASEAN SeniorOfficials, ‘The ASEAN Regional Forum: A Concept Paper’, May 1995,in Desmond Ball and Pauline Kerr, Presumptive Engagement,pp. 111–19.

38 ibid., p. 112.39 ibid., pp. 116–19.40 ‘Chairman’s Statement of the Second ASEAN Regional Forum (ARF),

1 August 1995, Bandar Seri Begawan’, p. 4.41 See Desmond Ball, ‘A New Era in Confidence Building: The Second

Track Process in the Asia/Pacific Region’, Security Dialogue, vol. 25,no. 2, June 1994, pp. 157–76.

42 See Regional Security Dialogue: A Calendar of Asia Pacific Events,July 1997 – June 1998, prepared jointly by the Regional SecuritySection, Department of Foreign Affairs and Trade, Canberra, and theStrategic and Defence Studies Centre, Australian National University,Canberra, 1997.

43 Desmond Ball, ‘CSCAP: Its Future Place in the Regional SecurityArchitecture’, in Managing Security and Peace in the Asia-Pacific, edsBunn Nagara and Cheah Siew Ean, Institute for Strategic and Inter-national Studies (ISIS) Malaysia, Kuala Lumpur, 1996, p. 301.

44 See ‘M‘‘Oceans Governance’’ CSCAP Memorandum No. 3: The Conceptsof Comprehensive and Cooperative Security’, reprinted as the Appen-dix in No Better Alternative: Towards Comprehensive and Cooperative

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Security in the Asia-Pacific, ed. David Dickens, Centre for StrategicStudies, Wellington, 1997.

45 See Sam Bateman and Stephen Bates (eds), ‘M‘‘Oceans Governance’’Introduction’, in Calming the Waters: Initiatives for Asia PacificMaritime Cooperation, Canberra Papers on Strategy and Defence No.114, Strategic and Defence Studies Centre, Australian National Uni-versity, Canberra, 1996, pp. 1–7.

46 See Sam Bateman and Stephen Bates (eds), Calming the Waters:Initiatives for Asia Pacific Maritime Cooperation; Sam Bateman andStephen Bates (eds), The Seas Unite: Maritime Cooperation in the AsiaPacific Region, Canberra Papers on Strategy and Defence No. 118,Strategic and Defence Studies Centre, Australian National University,Canberra, 1996; and Sam Bateman and Stephen Bates (eds), RegionalMarine Management and Security, Canberra Papers on Strategy andDefence No. 124, Strategic and Defence Studies Centre, AustralianNational University, Canberra, 1998.

47 Sam Bateman and R.M. Sunardi, ‘The Way Ahead’, in The Seas Unite,eds Sam Bateman and Stephen Bates, pp. 278–9.

48 Sam Bateman and Stephen Bates (eds), Regional Marine Managementand Security.

49 Sam Bateman and R.M. Sunardi, ‘The Way Ahead’, in The Seas Unite,eds Sam Bateman and Stephen Bates, pp. 273–82.

6 Oceans governance and regional security cooperation

1 Captain Skaridov, Commander Thompson, Lieutenant CommanderYang, Asian-Pacific Maritime Security: New Possibilities for NavalCooperation, Center for International Security and Arms Control,Stanford University, February 1994, pp. 10, 22.

2 Grant J. Hewison, ‘Environmental, Conservation and Protection Issueswithin the Context of Maritime Cooperation and Security in theAsia-Pacific Region’, in Calming the Waters: Initiatives for Asia-PacificMaritime Cooperation, eds Sam Bateman and Stephen Bates, ANU,Canberra, 1996, p. 120.

3 ibid., p. 123.4 Skaridov et al., Asian-Pacific Maritime Security: New Possibilities for

Naval Cooperation, p. 13.5 Desmond Ball ‘Maritime cooperation, CSCAP and the ARF’, in The

Seas Unite: Maritime Cooperation in the Asia-Pacific Region, eds SamBateman and Stephen Bates, ANU, Canberra, 1996, p. 21.

6 Desmond Ball and Sam Bateman, An Australian Perspective on Mar-itime CSBMs in the Asian-Pacific Region, paper for the Kuala LumpurCSBMs Workshop organised by Peace Research centre, ANU, and ISISMalaysia 8–10 July 1991, pp. 7–8.

7 David Ong and B.A. Hamzah, ‘Disputed Maritime Boundaries andClaims to Offshore Territories in the Asia-Pacific Region’, in The SeasUnite: Maritime Cooperation in the Asia-Pacific Region, eds Batemanand Bates, pp. 26–7.

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8 Grant J. Hewison, ‘Environmental, Conservation and Protection Issueswithin the Context of Maritime Cooperation and Security in theAsia-Pacific Region’, p. 127.

9 Donald Rothwell, ‘The Law of the Sea as a Maritime ConfidenceBuilding Measure’, in The Seas Unite: Maritime Cooperation in theAsia-Pacific Region, eds Bateman and Bates, p. 84.

10 Desmond Ball, ‘Maritime cooperation, CSCAP and the ARF’, p. 21.11 China Daily, 12 February 1997.12 Beijing Review, 5–11 January 1998, p. 11.

8 Regional naval cooperation

1 Commonwealth of Australia, Australia’s Strategic Policy, Departmentof Defence, Canberra, 1997.

10 Outstanding issues with regimes

1 T.T.B. Koh, ‘A Constitution for the Oceans’, in Law of the Sea: OfficialText of the United Nations Convention on the Law of the Sea withAnnexes and Index, United Nations, New York, 1983.

2 See records of debate at United Nations General Assembly November1997—see United Nations Department of the Law of the Sea homepage http://www.un.org/depts/los accessed 14 May 1998.

3 B.W. Davis and M. Haward, ‘Oceans Policy and Overlapping Regimes’in Coastal Zone Canada 94: ‘Cooperation in the Coastal Zone’Conference Proceedings, eds P.G. Wells and P.J. Ricketts, Coastal ZoneCanada Association, Bedford Institute of Oceanography, Dartmouth,Nova Scotia, 1994, vol. 1, pp. 155–64.

4 M. Haward, ‘Institutional Framework for Australian Ocean andCoastal Management’, Ocean and Coastal Management, vol. 33,nos 1–3, 1996, pp. 19–39.

5 The Agreement for the Implementation of the Provisions of the UnitedNations Convention on the Law of the Sea of 10 December 1982Relating to the Conservation and Management of Straddling FishStocks and Highly Migratory Fish Stocks.

6 While the concept stewardship of coastal and ocean areas andresources is clearly developed in Agenda 21 (see particularly Chapter17), Article 61 of the LOSC emphasises that ‘the coastal State . . .shall ensure through proper conservation and management measuresthat the maintenance of living resources in the exclusive economic zoneis not endangered by over-exploitation’. Law of the Sea: Official Textof the United Nations Convention on the Law of the Sea with Annexesand Index, United Nations, New York, 1983, p. 20.

7 Australia is in the process of developing and implementing anational Oceans Policy. This process began with a statement by thePrime Minister in March 1997; a series of commissioned background

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papers and consultations leading to the release of an ‘Issues Paper’on Tuesday 19 May 1998. Comments on this issues paper helpedfinalise Australia’s Oceans Policy, released in December 1998. Seehttp://www.erin.gov.au/marine/oceans/opquest.html

8 The compliance agreement is binding on states which ratify it. It ispart of the broader non-binding Code of Conduct for ResponsibleFishing.

9 E.L. Miles, ‘The Approaches of UNCLOS III and Agenda 21—ASynthesis’ in Sustainable Development and Preservation of the Oceans:The Challenges of UNCLOS III and Agenda 21, eds M. Kusuma-Atmadja, T.H. Mensah and B.H Oxman, Law of the Sea Institute,William S. Richardson School of Law, University of Hawaii, Honolulu,1997.

10 E.L. Miles and W.T. Burke, ‘Pressures on the United Nations Conven-tion on the Law of the Sea of 1982 Arising from New FisheryConflicts: The Problems of Straddling Stocks’, Ocean Developmentand International Law, vol. 20, 1989, pp. 343–57.

11 M.M. Jones, Marine Organisms Transported in Ballast Water: AReview of the Australian Scientific Position, Bureau of ResourceSciences Bulletin No. 11, AGPS, Canberra, 1991.

12 E. Gold, ‘The Control of Vessel Source Pollution’, in Oceans Law andPolicy in the Post-UNCED Era: Australian and Canadian Perspectives,eds L. Kriwoken, M. Haward, D. VanderZwaag and B. Davis, KluwerLaw International, London, 1996.

13 L.A. Kimball, ‘An International Regime for Managing Land-BasedActivities that Degrade Marine and Coastal Environments’, Ocean andCoastal Management, Special Issue 29, nos 1–3, 1995, p. 19.1.

14 ibid., p. 192.15 G. Rose, ‘Protection and Conservation of the Marine Environment’,

in The United Nations Convention on the Law of the Sea: Whatit Means for Australia and Australia’s Maritime Industries, edsM. Tsamenyi, S. Bateman and J. Delaney, Wollongong Papers onMaritime Policy No. 3, Centre for Maritime Policy, Universityof Wollongong, 1996, p. 151.

16 P. Bridgewater, ‘Managing and Conserving the Marine Environment’,in Rights and Responsibilities in the Marine Environment: Nationaland International Dilemmas, eds M. Tsamenyi and J. Delaney,Wollongong Papers on Maritime Policy No. 3, Centre for MaritimePolicy, University of Wollongong, 1996, p. 49.

17 ibid., p. 50.18 D.R. Rothwell, The Relationship Between Global and Regional Legal

Regimes, workshop paper for Oceans Policy and Overlapping RegimesProject, Antarctic CRC University of Tasmania, August 1995. In1993–96 the Ocean Policy Program led by Associate Professors BruceDavis and Richard Herr at the Antarctic CRC, University of Tasmania,undertook a major project on ‘Oceans Policy and OverlappingRegimes’.

19 O.R. Young, Overlapping Regimes: An Initial Reconnaissance, paper

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to Symposium on Ocean Policy and Overlapping Regimes, AntarcticCooperative Research Centre (CRC), Hobart, November 1993.

20 One such example may be the potential overlap between the Commis-sion for the Conservation of Southern Bluefin Tuna (CCSBT), theIndian Ocean Tuna Commission (IOTC) and possibly the InternationalCommission for the Conservation of Atlantic Tunas (ICCAT) in themanagement of southern bluefin tuna in the southern Indian Ocean.While ICCAT and CCSBT have resolved competency issues, thereremains a potential, if not real, problem of overlap between the CCSBTand IOTC. See A. Bergin and M. Haward, Overlapping Regimes andMarine Living Resources: Management of Highly Migratory TunaSpecies, workshop paper for Oceans Policy and Overlapping RegimesProject, Antarctic CRC, University of Tasmania, August 1995.

21 Such a proposal was made by a number of states in draft resolutionA/52/126, 19 November 1997, Oceans and the Law of the Sea, UnitedNations Law of the Sea website, http://www.un.org/depts/los accessed14 May 1998.

22 Australia has taken a lead in pursuing issues of ship integrity andsafety, crew training and operations following incidents off the Aus-tralian coast. In 1993 the Australian Government released a majorreport on these issues; see Ships of Shame, Canberra, AGPS, 1993.

23 Preamble to the Law of the Sea Convention in the Law of the Sea:Official Text of the United Nations Convention on the Law of theSea with Annexes and Index, United Nations, New York, 1983.

11 Maritime environmental security

1 Franklyn Griffiths, ‘Environment in the US Security Debate: The Caseof the Missing Arctic Waters’, Environmental Change and SecurityProject Report, issue no. 3, Spring 1997, The Woodrow Wilson Center,pp. 18–19.

2 See Robert K. Ackerman, ‘Defence Machinery Gears Up to FightEnvironmental Threat’, Signal, December 1990, and the statement byGary Vest, Principal Assistant to the US Deputy Under Secretary ofDefense for Environmental Affairs, summarising DOD’s view of envi-ronmental security. Vest, cited in Nathan Ruff, Robert Chamberlainand Alexandra Cousteau, ‘Report on Applying Military and SecurityAssets to Environmental Problems’, Environmental Change and Secu-rity Project Report, issue no. 3, Spring 1997, The Woodrow WilsonCenter, p. 83.

3 See, for example, Arthur Westing (ed.) ‘Environmental Warfare: anoverview’, in Environmental Warfare: A Technical, Legal and PolicyAppraisal, Taylor and Francis, London, 1984, and ‘EnvironmentalWarfare: Manipulating the Environment for Hostile Purposes’, paperpresented at the Woodrow Wilson Center, Washington, DC, 7 May1996. The most commonly cited examples of modern environmentalwarfare are the second Indochina War, and the 1991 Gulf War. Duringthe Indochina conflict, the United States sprayed large areas of

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Vietnamese rainforest with defoliants like Agent Orange in an attemptto deny cover to the North Vietnamese and their Viet Cong allies. TheIraquis deliberately destroyed or disabled a large percentage of thepetroleum rigs in Kuwait for punitive and economic reasons, inthe process causing substantial damage to Kuwait’s environment andthe maritime ecology of the Gulf.

4 Disciples of this school of thought will be referred to as ‘environmen-talists’, denoting their belief that environmental degradation andscarcity is now a significant cause of conflict which must be includedin a broader definition of security than has hitherto been accepted byrealists or liberals.

5 See, for example, Simon Dalby, ‘Security, Intelligence, the NationalInterest and the Global Environment’, Intelligence and National Secu-rity, vol. 10, no. 4, October 1995, p. 177; Alexander Carius andAndreas Kraemer, ‘M‘‘Complexificacao’’ of environmental security’,paper prepared for the Seminar on Global Security Beyond 2000:Global Population Growth, Environmental Degradation, Migration,and Transnational Crime, University of Pittsburgh, Pittsburgh, Pen-nyslvania, 2–3 November 1995, p. 7.

6 The United Nations Environment Program (UNEP), Global Pro-gramme of Action for the Protection of the Marine Environment fromLand-Based Activities, UNEP, Nairobi, 1995, cited in Grant Hewisonand Mohd Nizam Basiron, ‘Marine Environmental Security’, in TheSeas Unite: Maritime Cooperation in the Asia Pacific Region, eds SamBateman and Stephen Bates, Canberra Papers on Strategy and DefenceNo. 18, Strategic and Defence Studies Centre, Australian NationalUniversity, Canberra, 1996, p. 158.

7 It should be noted that the annual increase in the world’s populationhas now stabilised at about 1.7 per cent. World Population Prospects:The 1992 Revision, United Nations Publications, New York, 1993.

8 By Pacific Asia I mean Northeast and Southeast Asia, and the RussianFar East.

9 William McGurn, ‘City Limits’, Far Eastern Economic Review, (here-after cited as FEER), 6 February 1997, pp. 34–7, and World Bankdiscussion paper prepared by Clive Bardon and Ramesh Ramankuttycited in Florence Chong, ‘Asia’s economies may cost the Earth’, TheAustralian, 30 March 1994.

10 These figures include South and West Asia. 1997 Yearbook, FEER,p. 69.

11 Asian Development Bank figures cited in Johanna Son, ‘Megacostskeep megacities unhealthy’, The Jakarta Post, 23 April 1997.

12 Paul Ehrlich defines ‘carrying capacity’ as ‘the number of people thatthe planet can support without irreversibly reducing its capacity tosupport people in the future’. Ehrlich in David Suzuki, ‘Inside Story’,documentary shown on the Australian Broadcasting Commission,15 April 1997.

13 Norman Myers, ‘Environment and Security’, Foreign Policy, no. 74,Spring 1989, p. 10.

14 The Weekend Australian, 1–2 July 1995.

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15 They are China, Japan, South Korea, Thailand, and Taiwan. TrishSaywell, ‘Fishing for Trouble’, FEER, 13 March 1997, pp. 50–1.

16 Comments made by Rear Admiral R.M. Sunardi, senior adviser toIndonesia’s Minister of Defence, 13 June 1996, cited in Alan Dupont,‘Indonesian Defence Strategy and Security: Time for a Rethink?’,Contemporary Southeast Asia, vol. 18, no. 3, December 1996, p. 280.

17 UN Human Development Report, 1994, p. 36.18 Geoffrey Lean, ‘World fisheries now in a sea of trouble’, The Canberra

Times, 4 February 1995.19 FEER, 13 March 1997, p. 51.20 Daniel Yarrow Coulter, ‘South China Sea Fisheries: Countdown to

Calamity’, Contemporary Southeast Asia, vol. 17, no. 4, March 1996,p. 372.

21 Eduardo A. Loayza in collaboration with Lucian M. Sprague, ‘AStrategy for Fisheries Development’, World Bank Discussion Papers,No.135, World Bank, Washington, DC, 1994, p. 2, cited in ibid.

22 Catches for albacore peaked at 100 000–125 000 tonnes in the mid-1970s but had fallen to 50 000 tonnes by 1995. Catches of bigeyeand the highly prized bluefin tuna have also declined substantially, thelatter by half since 1982, Asia 1997 Yearbook, p. 56.

23 ibid. See also Gautam Kaji, ‘Challenges to the East Asian Environ-ment’, The Pacific Review, vol. 7, no. 2, 1994, p. 217.

24 FEER, 13 March 1997, p. 51.25 Coastal marine pollution is caused by a combination of urban sewage,

industrial discharges, soil erosion, deforestation, aquaculture and farm-ing. Julian Cribb, ‘Toxic red tides choke Asia’s seas’, The WeekendAustralian, 12–13 August 1995.

26 Vaclav, Smil, Environmental Problems in China: Estimates of Eco-nomic Costs, East–West Center Special Report No. 5, April 1996,p. 28.

27 Robert E. Bedeski, Unconventional Security and the Republic of Korea:A Preliminary Assessment, CANCAPS Paper No. 8, August 1995,p. 10.

28 Cited in Mark Valencia, ‘Energy and Insecurity in Asia’, Survival,vol. 39, no. 3, Autumn 1997, p. 101.

29 The Russian tanker Nakhodka broke apart on 2 January, spilling largequantities of heavy oil and contaminating the coastline of severalJapanese prefectures. Japanese officials expressed anger and frustrationat what they saw as Russia’s unwillingness to accept some responsi-bility for the disaster or to agree to a comprehensive study of thereasons for the sinking. Chris Betros, ‘Evasion over Russian tankerangers Tokyo’, South China Morning Post, 22 February 1997.

30 There have already been several serious oil spills in the Malacca Strait.‘Drifting oil tanker threatens spill in Malacca Strait’, The CanberraTimes, 22 January 1993. On the subject of the growing incidence ofmarine pollution in Southeast Asia, see, Joseph Morgan, ‘Natural andHuman Hazards’, in Southeast Asia’s Environmental Future: TheSearch for Sustainability, eds Harold Brookfield and Yvonne Byron,Oxford University Press, Kuala Lumpur, 1993, p. 293; Hashim Djalal,

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Indonesia and the Law of the Sea, Centre for Strategic and Interna-tional Studies, Jakarta, 1995, p. 388; Mochtar Kusumaatmadja ‘Rightsover Natural Resources in Southeast Asia: Managing Fisheries inIndonesia’, in Environmental Management in ASEAN: Perspectives onCritical Regional Issues, ed. Maria Seda, Institute of Southeast AsianStudies, 1993, p. 55; and Mark Valencia, Malaysia and the Law ofthe Sea: the foreign policy issues, the options and their implications,Institute of Strategic and International Studies, Malaysia, KualaLumpur, 1991, pp. 110–12.

31 Closure of the Malacca Straits might also have global ramifications,depending on the length of the closure. On this point see John H.Noer, ‘Southeast Asian Chokepoints: Keeping Sea Lines of Communi-cation Open’, Strategic Forum, no. 98, December 1996, Institute forNational Strategic Studies, National Defense University. For a break-down of the value of trade passing through the Malacca Straits andother key Southeast Asian straits see Henry J. Kenny, An Analysis ofPossible Threats to Shipping in Key Southeast Asian Sea Lanes,Occasional Paper, Center for Naval Analyses, Alexandria, Virginia,February 1996, p. 17.

32 Noer, ‘Southeast Asian Chokepoints’, p. 3.33 For example, the detention of the captain of a Greek-registered ship,

the World Aretus, by the Malaysian Navy after a 20-hour chase inwhich warning shots were fired by the Malaysians. The captain wassuspected of dumping several tonnes of oil sludge in the MalaccaStraits. Hamidah Atan, Vincent De Paul and Azman Ahmad, ‘Orderto detain ship served on captain’, New Straits Times, 2 June 1995.

34 See ‘Stormy passage: Japan’s plutonium shipment scares ASEAN’,FEER, 8 October 1992, pp. 12–13 and Kent E. Calder, Asia’s DeadlyTriangle, Nicholas Brealey Publishing, London, 1996, p. 67.

35 ‘Halt nuclear dumping, Japan tells Russia’, The Age, 19 October 1993.36 Although it should be noted that the Indonesian Government was still

not prepared to sanction legal action against ‘black’-rated companies.‘Government announces names of river polluters’, The Jakarta Post,31 October 1996; and ‘China closes 50,000 polluting factories’, TheJakarta Post, 5 November 1996.

37 In addition to ASEAN Environmental Program, ASEAN has formed acommittee of ASEAN Senior Officials on the Environment and theCoordinating Body on the Seas of East Asia. Tommy Koh, ‘TheEnvironment in Southeast Asia: Prospects for Cooperation and Con-flict’, The Fourth Southeast Asia Forum, 15–18 January 1992, KualaLumpur, pp. 5–6. See also Alan Burnett, The Western Pacific:Challenge of Sustainable Growth, Allen & Unwin, London, 1993,p. 206.

38 Grant Hewison and Mohd Nizam Basiron, ‘Marine EnvironmentalSecurity’ in The Seas Unite: Maritime Cooperation in the Asia PacificRegion, eds Sam Bateman and Stephen Bates, Canberra Papers onStrategy and Defence No. 18, Strategic and Defence Studies Centre,Australian National University, Canberra, 1996, p. 154. See also RajaMalik Saripulazan Raja Kamarulzaman, ‘ASEAN–OSRAP: Strengthen-

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ing Regional Capabilities’, paper presented at 1995 International OilSpill Conference, Long Beach, California, 27 February–2 March 1995.

39 Known as East Asian Response Limited. Kevin Santa Maria, ‘Singa-pore’, Regional Maritime Management and Security, eds Sam Batemanand Stephen Bates, Canberra Papers on Strategy and Defence No. 124,Strategic and Defence Studies Centre, Canberra, 1998, p. 76.

40 R.T. Maddock, ‘Environmental Security in East Asia’, ContemporarySoutheast Asia, vol. 17, no. 1, June 1995, p. 29. The Interim ScientificCommittee is designed to provide better management of the NorthPacific’s tuna by reviewing the condition of existing stocks, conductingresearch on them and monitoring any signs of over-fishing. Asia 1997Yearbook, p. 56.

41 Hewison and Basiron, ‘Marine Environmental Security’, pp. 147–63.CSCAP is a so-called ‘second-track’ process where academics, membersof the business community and officials acting in their private capacitydiscuss ideas and formulate proposals designed to enhance regionalsecurity cooperation. One of CSCAP’s four working groups is theWorking Group on Maritime Corporation.

42 Anthony Bergin, ‘Australia’, in Regional Maritime Management andSecurity, eds Sam Bateman and Stephen Bates, Canberra Papers onStrategy and Defence No. 124, Strategic and Defence Studies Centre,Canberra, 1998, p. 76.

43 See the analysis of APEC’s environmental performance measuredagainst its rhetoric in Lyuba Zarsky and Jason Hunter, ‘EnvironmentalCooperation at APEC: The First Five Years’, The Journal of Environ-ment and Development, vol. 6, no. 3, September 1997, pp. 243–8.

44 Even projects like the ASEAN Oil Spill Response and PreparednessProject are still unproved and its existence does not guarantee aneffective response to a major oil spill. Hewison and Basiron, ‘MarineEnvironmental Security’, p. 154.

45 Francisco A. Magno, ‘Environmental Security in the South China Sea’,Security Dialogue, vol. 28, no. 1, 1997, p. 109.

12 Energy resources and security

1 Michael Stankiewicz (editor Energy and Security in Northeast Asia),An IGCC Study Commissioned for the Northeast Asia CooperationDialogue V, Energy Workshop Policy Paper #35, February 1998.

2 China reportedly drilled for oil off Senkaku Islands, Japan Times,12 February 1996, p. 1.

3 Energy Asia, 7 May 1982; A. Dawson, ‘CPRK threatens offshore oilconcessionaires’, Bangkok Post, 30 March 1982, p. 21.

4 Mark J. Valencia, South-East Asian Seas: Oil Under Troubled Water,Oxford University Press, Singapore, 1985, p. 95.

5 Far Eastern Economic Review, 4 December 1997, p. 91.6 ‘Japan protests Russian seizure in new island row’, Reuter, 13 October

1996; ‘Seoul holds war games close to disputed islet’, HonoluluAdvertiser, 2 October 1996, p. A10.

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7 ‘Seoul–Tokyo tensions escalate over fishing dispute’, Reuter, 26 Janu-ary 1998.

8 ‘Hong Kong activists set sail for disputed islands to mark protest’,AFP, 17 September 1997; ‘Taiwan protest ship forced to return’, AFP,1 July 1997.

9 Andrew Mack, Island disputes and maritime security in NortheastAsia, paper presented at the 5th International Sea Powers Symposium,August 1997.

10 Mark J. Valencia, China and the South China Sea Disputes, AdelphiPaper, Oxford University Press, 1995, p. 44.

13 Policing the high seas

1 World Review of Highly Migratory Species and Straddling Fish Stocks,FAO Fisheries Technical Paper 337, Rome, 1994.

2 Marine Fisheries and the Law of the Sea: A Decade of Change, FAOFisheries Circular No. 853, 1993.

3 David Balton, ‘Strengthening the Law of the Sea: The New Agreementon Straddling Fish Stocks and Highly Migratory Fish Stocks’, OceanDevelopment and International Law, vol. 27, 1996, pp. 125–52.

4 Frida Maria Armas Pfirter, ‘Straddling stocks and highly migratorystocks in Latin American practice and legislation: new perspectives inlight of current international negotiations’, Ocean Development andInternational Law, vol. 26, 1995, pp. 127–50; Christopher Joyner andPeter N. De Cola, ‘Chile’s presencial sea proposal: implications forstraddling stocks and the international law of fisheries’, Ocean Devel-opment and International Law, vol. 24, 1993, pp. 99–121; MichaelSullivan, ‘The Case in International Law for Canada’s Extension ofFisheries Jurisdiction Beyond 200 miles’, Ocean Development andInternational Law, vol. 28, 1997, pp. 203–68.

5 See A.C. de Fontanbert, ‘The Politics of Negotiation at the UnitedNations Conference on Straddling Fish Stocks and Highly MigratoryFish Stocks’, Ocean and Coastal Management, vol. 29, 1995,pp. 79–91.

6 See UNGA Doc A/CONF.164/33, 3 August 1995 reprinted in Interna-tional Legal Materials, vol. 34, 1995, p. 1542. It was adopted withouta vote on 4 August 1995. For assessments see Balton, ‘Strengtheningthe Law of the Sea: The New Agreement on Straddling Fish Stocksand Highly Migratory Fish Stocks’; Lawrence Juda, ‘The 1995 UnitedNations Agreement on straddling fish stocks and highly migratory fishstocks: a critique’, Ocean Development and International Law,vol. 28, 1997, pp. 147–66; Andre Tahindro, ‘Conservation and man-agement of transboundary fish stocks: comments in light of theadoption of the 1995 agreement for the conservation and managementof straddling fish stocks and highly migratory fish stocks’, OceanDevelopment and International Law, vol. 28, 1997, pp. 1–58;Moritaka Hayashi, ‘The 1995 Agreement on Straddling Fish Stocksand Highly Migratory Fish Stocks: Significance for the Law of the Sea

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Convention’, Ocean and Coastal Management, vol. 29, 1995,pp. 51–69.

7 Moritaka Hayashi, ‘Enforcement by Non-flag States on the High Seasunder the 1995 Agreement on Straddling and Highly Migratory FishStocks’, Georgetown International Environmental Law Review,vol. IX, 1996, pp. 1–36.

8 Giselle Vigneron, ‘Compliance and International Environmental Agree-ments: A Case Study of the 1995 United Nations Straddling Fish StocksAgreement’, Georgetown International Environmental Law Review,vol. 10, 1998, pp. 581–623.

9 Reprinted in International Law Materials, vol. 33, 1994, p. 969.10 See Anthony Bergin and Marcus Haward, ‘Australia’s Approach to

High Seas Fishing’, International Journal of Marine and Coastal Law,vol. 10, 1995, pp. 349–67.

11 The following relies on a paper by Martin Exel, Exploitation ofSouthern Ocean Fisheries: an industry perspective, presented at aworkshop sponsored by the Centre for Maritime Policy on Antarcticand Southern Ocean Fishing: Current Issues and Challenges, 1997,Canberra.

12 The Relevance to CCAMLR of the UN Agreement Relating to theConservation and Management of Straddling Fish Stocks and HighlyMigratory Fish Stocks, Australian paper, CCAMLR-XV Agenda ItemNos 7 & 9, November 1996.

13 See generally Transform Aqorau and Anthony Bergin, ‘The UN FishStocks Agreement—A New Era for International Cooperation to Con-serve Tuna in the Central Western Pacific’, Ocean Development andInternational Law, vol. 29, 1998, pp. 21–42.

14 See Anthony Bergin and Marcus Haward, ‘Southern Bluefin TunaFishery: Recent Developments in International Management, MarinePolicy, vol. 18, 1994, pp. 263–73.

15 On patrol vessel requirements, from the viewpoint of the AustralianFisheries Management Authority these have been made very clear. SeeGeoff Rohan, ‘Fisheries a Valuable Resource’, in Policing Australia’sOffshore Zones: Problems and Prospects, eds Doug Mackinnon andDick Sherwood, Wollongong Papers on Maritime Policy No. 9, Centrefor Maritime Policy, University of Wollongong, 1997, pp. 36–48.

16 The Indian Ocean Tuna Commission of which Australia is a memberentered into force on 27 March 1996. The IOTC Agreement does notset any standards which would assist in achieving sustainable use. TheIOTC’s area of competence is limited to the high seas. The IOTC isin its infancy and the development of a conservation strategy by theIOTC will take some time. For a short discussion of the IOTC seeAustralia’s Oceans Policy International Agreements Background Paper2, October 1997, A Report Commissioned by Environment Australia,Centre for Maritime Policy, University of Wollongong, 1997, pp. 57–9.

17 Arrangement between the Government of Australia and the Govern-ment of New Zealand for the Conservation and Management ofOrange Roughy in the South Tasman Rise signed by Australia12 January 1998 and New Zealand 18 February 1998.

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14 Pollution, dumping and maritime accidents

1 Commonwealth of Australia, Australia’s Oceans Policy: An IssuesPaper, Environment Australia, Canberra, 1998.

15 Jurisdictional issues for navies

1 On 21 October 1997 HMAS Anzac apprehended foreign fishing vesselsFV Salvora and MV Aliza Glacial suspected of fishing illegally in theexclusive economic zone (EEZ) off Heard and McDonald Islands(HIMI), Australia’s sub-Antarctic possessions. A further apprehensionof the foreign long liner, Big Star, was made by HMAS Newcastle inthe HIMI EEZ on 21 February 1998.

2 James C. Kraska, ‘Counterdrug Operations in US Pacific Command’,Joint Forces Quarterly, Autumn/Winter 1997–98, pp. 81–5 describesUS Coastguard counter-drug operations in international waters withinthe US Pacific Command’s area of responsibility.

3 Max Herriman, Martin Tsamenyi, Juita Ramli, Sam Bateman, Austral-ia’s Oceans Policy: International Agreements, Background Paper 2,Centre for Maritime Policy, October 1997, p. 45. A subsidiary agree-ment under the Niue Treaty was signed between Tonga and Tuvaluon 7 May 1993.

4 Article 17, UN Convention Against Illicit Traffic in Narcotic Drugsand Psychotropic Substances, Vienna, 20 December 1988, reprinted in28 In’l Leg. Mat’ls 493 (1989).

5 Article 9, Convention for the Suppression of Unlawful Acts Againstthe Safety of Navigation, Rome, 10 March 1988

6 Sam Bateman, ‘Piracy and Maritime Terrorism’, Maritime Studies,November–December 1997, p. 27, suggests that consideration be givento developing regional contingency plans to deal with maritime terror-ism with the prospective involvement of the US Navy and the defenceforces of other countries routinely deployed in the region

7 Article 19, Agreement for the Implementation of the Provisions of theUnited Nations Convention on the Law of the Sea of 10 December1982 relating to the Conservation and Management of Straddling FishStocks and Highly Migratory Fish Stocks, 4 December 1995 (UNIA).

8 Article 21, UNIA.9 Herriman, Tsamenyi, Ramli, Bateman, Australia’s Oceans Policy: Inter-

national Agreements, Background Paper 2, p. 24, describes theCCAMLR observer and inspection program as perhaps the mostdeveloped system for compliance in international fisheries managementbut acknowledges that achieving compliance in the Southern Ocean isdifficult because of the prohibitive costs involved in monitoring sucha large area, the logistical difficulties of monitoring fishing practiceson the high seas and the limited capacity to control fishing operationsby states not party to CCAMLR.

10 Article 10(1), 1996 Protocol to the Convention on the Prevention of

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Marine Pollution by Dumping of Wastes and Other Matter, 1972. The1996 protocol is not yet in force.

11 Article 10 (3), 1996 Protocol to the Convention on the Prevention ofMarine Pollution by Dumping of Wastes and Other Matter.

12 Australia has legislated in relation to piracy beyond national jurisdic-tion in Part IV of the Commonwealth Crimes Act, 1914.

13 Bateman, ‘Piracy and Maritime Terrorism’, pp. 27–8.14 The Draft Guidelines were discussed at the 69th Session of the

Maritime Safety Committee of the International Maritime Organisa-tion held in London 11–20 May 1998 and will be reconsidered at the70th Session of the MSC in December 1998. It is intended thatthe results of the deliberations within IMO will eventually feed intothe work being undertaken by an ad hoc Working Group of the UNCommission on Crime Prevention and Criminal Justice which is pre-paring the text of an International Convention against MultinationalOrganised Crime.

15 Herriman, Tsamenyi, Ramli, Bateman, Australia’s Oceans Policy: Inter-national Agreements, Background Paper 2, p. 45.

16 Article 21 of the UNIA provides that where, following boarding andinspection, there are clear grounds for suspecting a violation, theinspecting state must notify the flag state and the flag state mustrespond within three days. If the flag state fails to take action andthere are clear grounds for believing that a serious violation has takenplace, the inspecting state may bring the vessel to port for furtherinvestigation.

17 US Navy Annotated Supplement to the Commanders’ Handbook onthe Law of Naval Operations, NWP 1–14M, paragraph 3.11.2.2.3,comments that ‘international agreements authorising foreign officialsto exercise law enforcement authority on board flag vessels take manyforms. They may be bilateral or multilateral; authorise in advance theboarding of one or both nations’ vessels; and may permit law enforce-ment action or be more limited’.

18 Ibid., footnote 88, states: ‘The United States has entered into numerousbilateral agreements addressing counterdrug and alien migrant inter-diction law enforcement operations with nations around the world.Many of the agreements, particularly those with Caribbean nations,provide US Coast Guard law enforcement officers with authority tostop, board and search the vessels of the other party seaward of theirterritorial seas; to embark US law enforcement officials on their vesselsand to enforce certain of their laws; to pursue fleeing vessels or aircraftinto the waters or airspace of the other party; and to fly into theirairspace in support of counterdrug operations’.

19 Draft Discussion Paper on Australian implementation of the UNIA,Department of Primary Industries and Energy, 20 February 1998,paragraph 125 comments: ‘Presently the only Australian enforcementvessels with a high seas capability are those operated by the RoyalAustralian Navy. They have a policy to not use defence assets againstAustralian nationals and have limited capacity to conduct high seas

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monitoring, particularly when there are current concerns with theadequacy of surveillance within the EEZ’.

20 Article 111(1), 1982 United Nations Law of the Sea Convention(LOSC).

21 Article 111(4), 1982 United Nations LOSC. Opinions differ as towhether the coastal state should pass domestic legislation to give effectto this extra-territorial assertion of jurisdiction but as with the use offorce in law enforcement, it is probably preferable to do so. See alsoD.P. O’Connell, The Influence of Law on Sea Power, ManchesterUniversity Press, 1975, p. 69.

22 Article 23, UNIA.23 Articles 6, 7, 8, 10 and 11, 1988 Rome Convention for the Suppression

of Unlawful Acts Against the Safety of Navigation.24 Article 22, UNIA.25 D.P. O’Connell, The Influence of Law on Sea Power, Manchester

University Press, 1975, pp. 66–7 comments on the I’m Alone case,which concerned a US Coastguard pursuit of a Canadian-registeredvessel engaged in liquor smuggling during the Prohibition era.Although the tribunal authorised the use of necessary and reasonableforce in visit and search, the facts of the case were held not to justifythe sinking. O’Connell also comments on the Red Crusader case whichconcerned a dispute between the United Kingdom and Denmark overthe fishing limits of the Faroes. An international commission of inquiryin that case found that the captain of the Danish fishery protectionvessel, Neils Ebbesen, had exceeded legitimate use of armed force byfiring without warning of solid gunshot and creating danger to humanlife by firing at the Red Crusader.

26 The RAN Fremantle class patrol boat, HMAS Townsville, fired intoa foreign fishing vessel escaping from custody on 25 December 1981.O’Connell, The Influence of Law on Sea Power, p. 67, quotes otherinstances of direct fire in fisheries enforcement cases.

27 O’Connell, The Influence of Law on Sea Power, p. 69, suggests that‘naval staffs should ensure that there is proper domestic legal coveragefor the operational orders they issue’.

28 ibid., p. 69.

16 The new science of complexity

1 Erskine Childers, The Riddle of the Sands, Smith, Elder & Co.,London, 1903, Chapter VII, p. 69.

2 Lively and readable introductions to complex systems are to be foundin: J.L. Casti, Would-Be Worlds, Wiley, New York, 1997; and T.R.J.Bossomaier and D.G. Green, Patterns in the Sand: Computers, Com-plexity and Life, Allen & Unwin, London, 1998. P. Coveney and R.Highfield, Frontiers of Complexity, Faber & Faber, London, 1995; andS. Kauffman, At Home in the Universe: The Search for the Lawsof Self-Organization and Complexity, Oxford University Press,London, 1995, are broad overviews. For more advanced treatments,

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see J. Holland, Emergence: From Chaos to Order, Addison-Wesley,Reading, MA, 1998; and M. Gell-Mann, The Quark and the Jaguar,W.H. Freeman, San Francisco, 1994.

3 M. Wertheim, Pythagoras’ Trousers: God, Physics and the GenderWars, Fourth Estate, London, 1997.

18 Oceans governance—the global challenge

1 Commonwealth of Australia, Australia’s Oceans Policy: An IssuesPaper, Canberra: Environment Australia, 1998, p. 82.

2 Senator Robert Hill, the Federal Minister for the Environment, on23 December 1998 released the eventual policy statement, Australia’sOceans Policy, in two volumes. Commonwealth of Australia, Aus-tralia’s Oceans Policy, Vols. 1 and 2, Canberra: Environment Australia,1998. The release of this policy makes Australia one of the firstcountries in the world to develop a comprehensive, national plan toprotect and manage the oceans

3 On 8 December 1995, the (then) Prime Minister of Australia, PaulKeating, announced that the Commonwealth Government had agreedto a proposal for the development of a coordinated policy on themanagement of Australia’s marine resource. The incoming HowardGovernment in March 1996 embraced the idea of national oceanspolicy and gave responsibility for policy development to the Depart-ment of Environment, Sport and Territories (later known asEnvironment Australia). The process of policy development includedthe establishment of an Oceans Interdepartmental Committee, thecirculation of a scoping paper within government and then the releasein March 1997 of an Oceans Policy Consultation Paper inviting publiccomment. Subsequent activities leading to the issue of the consultationpaper in May 1998 included consideration of public comments on theconsultation paper, the establishment of a Ministerial Advisory Groupon Oceans Policy, the development of a series of supporting paperson particular issues, and a public forum on Oceans Policy in Canberrain December 1997.

4 Australia’s Oceans Policy: An Issues Paper, p. 83.5 For a description of ‘thickening jurisdiction’ and ‘creeping jurisdiction’

in the context of the 200 nautical mile exclusive economic zone,see Wayne S. Ball, ‘The Old Grey Mare, National Enclosure ofthe Oceans’, Ocean Development and International Law, vol. 27,nos. 1–2, 1996, p. 113.

6 Excessive claims to maritime jurisdiction are the subject of J.A. Roachand R.W. Smith, Excessive Maritime Claims, International Law Stud-ies, vol. 66, Naval War College Press, Newport, 1994.

7 The approach to oceans management based on a separate managementplan for each marine ecosystem recognises that an ecosystem ofparticular plants, animals, and micro-organism communities and theirnon-living environment need to be managed as a functional unit. LOSCuses the word ecosystem only once—in Article 194(5) in the context

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of protecting and preserving ‘rare or fragile ecosystems as well as thehabitat of depleted, threatened or endangered species and other formsof marine life’.

8 Lawrence Juda, International Law and Ocean Use Management: TheEvolution of Ocean Governance, Routledge, London, 1996, p. 243.

9 Andrew Mack, ‘Security Regimes for the Oceans: The Tragedy of theCommons, the Security Dilemma, and Common Security’, in Freedomfor the Seas in the 21st Century—Ocean Governance and Environ-mental Harmony, eds Jon M. Van Dyke, Durwood Zaelke, and GrantHewison, Island Press, Washington, DC, 1993, p. 409.

10 ‘Fishing for Trouble’, Far Eastern Economic Review, 13 March 1997,p. 50.

11 Ted L. McDorman, and Panat Tasneeyanond, ‘Increasing Problems forThailand’s Fisheries’, Marine Policy, July 1987, pp. 205–16. AlsoGordon Fairclough, ‘Floating Flashpoint’, Far Eastern EconomicReview, March 13, 1997, pp. 53–4.

12 For a discussion of this agreement, see Lawrence Juda, ‘The 1995United Nations Agreement on Straddling Fish Stocks and HighlyMigratory Fish Stocks’, Ocean Development and International Law,vol. 28, no. 2, 1997, pp. 147–66.

13 Australia’s Oceans Policy: An Issues Paper, p. 79.

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IndexINDEX

acid rain 129acquisitions programs 65, 66–9,

70Agenda 21, 82, 167agricultural yields 129air forces 36–7Alexander the Great 26Antarctic Territories 56anti-fouling products 177ANZUS treaty 35apprehension 187archipelagic states 9, 17, 66archipelagos 9arms build-up 7, 42, 43–6, 61–2,

63–6, 81arms control 82arms reduction 33–4, 38–9, 45artificial islands 17ASEAN Regional Forum (ARF)

20, 71–4, 80, 85–6, 149ASEAN Regional Forum Concept

Paper 83ASEAN Regional Forum Senior

Officers Meeting (ARF SOM)72–4

Asia-Pacific region 2–3Asian Pacific Economic

Cooperation (APEC) 80, 85–6,136

Association of Southeast AsianNations (ASEAN) 20, 80, 98,135–6

Australia, New Zealand andUnited States treaty (ANZUS)52

Australian and New ZealandEnvironment and ConservationCouncil (ANZECC) 177

Australian Ballast WaterManagement Strategy 176

Australian Defence Force (ADF)53–5, 57, 96, 164

Australian Fishing Zone (AFZ) 55Australian Maritime Safety

Authority (AMSA) 174–5Australia’s Oceans Policy 168,

175, 207, 213Australia’s role in ocean

governance 206–7Australia’s Strategic Policy (ASP)

55, 96, 97

ballast water management 176Basel Convention 112–13Bateman, Commodore Sam 28, 76

239

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Beazley, Kim 53, 54Bering Sea 81biodiversity 125, 126, 128, 129Biological Diversity Convention

126Biologische Anstalt Helgoland

193–4bipolarity 60boarding procedures 188boat people 55; see also illegal

immigrantsBooth, Ken 27–8boundary conflicts 7Brodie, Bernard 36bunker fuels 119

Canadian InternationalDevelopment Agency (CIDA) 21

capability acquisition 28capitalism 37, 41carrying capacity 131Centre for Maritime Policy 4charting 56Chernobyl 135China

developments in 61–2, 86–7force used by 151–2maritime interests 86oil supply 140see also East Asia

Christmas Island 56Civil Liability Convention 118Civil Liability/Fund regime 118,

119coastal state jurisdiction 6–7, 9,

17Coastal States Group 9, 19coastal surveillance 55, 56, 180–1Coastwatch 55–6Cocos Island 56cod 155collective action 12, 13Commission for the Conservation

of Antarctic Marine LivingResources (CCAMLR) 159,161, 182–3

Commission for the Conservationof Southern Bluefin Tuna(CCSBT) 159, 163–4

Commission on the Limits of theContinental Shelf 121, 124

common pool of resources (CPR)11, 12, 23

common property 25Commonwealth of Northern

Mariana 88compensation regimes 117–19complex systems theory 195–6,

197complexity 194–6Compliance Agreement 158confidence- and security-building

measures (CSBMs) 72, 74, 76confidence-building measures

(CBMs) 82–5conflict

boundary 7commercial interests 23ecological stress and 135–6global 79international 37inter-state 63LOSC source of 81offshore issues 66petroleum 143–50population and 130–2regional 62–3, 79rights 7risk of 212sovereign 42territorial 39, 42transboundary 122–3

continental powers 37, 41continental shelf 9, 17, 56, 81,

123, 203Convention against Illicit Traffic

in Narcotic Drugs andPsychotropic Substances 181,182, 185

Convention for the Prevention ofPollution from Ships(MARPOL) 114, 125, 127,174, 183

Convention for the Suppressionof Unlawful Acts against theSafety of Navigation 182

Convention on Maritime Searchand Rescue 174

240 OCEANS GOVERNANCE AND MARITIME STRATEGY

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Convention on Oil PollutionPreparedness, Response andCo-operation (OPRC) 116–17,174

Convention on Standards ofTraining, Certification andWatchkeeping for Seafarers 174

Corfu Channel Case 106Council for Security Cooperation

in the Asia Pacific (CSCAP)20, 75–7

counter-terrorism 52, 129Crestone concession 145CSCAP Working Group on

Maritime Cooperation 76–7, 85

defence expenditure 63–9; seealso military expenditure

defence policy 28, 48–58Defence Science and Technology

Organisation 56Defence White Paper 54deforestation 129delivery of vessels 189democratisation 147–8Dibb Review 54, 58Differential Global Positioning

Systems (DGPS) 178diplomacy 149disaster relief 101discharges from ships 113–14distant water fishing nations

(DWFNs) 159, 210domestic politics 150downstream effect 201driftnets 94drug trafficking 94, 95, 157,

181, 185–6, 187, 188, 212dumping 167, 168–72, 183

East AsiaCold War 41defence expenditure 65–6global trends 39international peace 42naval arms build-up 43–6regional conflict 62–3strategic architecture 60

Eastern Antarctic Coastal States(EACS) 181

economic competitiveness 129economic crisis 66–9economic growth 97enclosed seas 9enforcement procedures 188–9environment see marine

environmentenvironmental damage 77, 81–2environmental warfare 129erosion 93exclusive economic zones (EEZs)

29, 66, 164, 201–2as a sub-regime 9, 17, 20, 42,

89, 119, 122–3, 124, 143,153, 164, 166, 180, 203,208–9

Asia-Pacific 70, 81Australia and 48, 56, 101,

167–8pollution legislation for 108–10

Exercise Paradise 101exploitation see oceans,

exploitation ofExxon Valdez 116, 118

failed states 129Fiji 88fish stocks

Australia and 159–65, 206depletion of 24, 132–3, 186global 205management 209–11regional cooperation 89, 90,

91–2straddling and migratory 109,

122–3, 124, 153–6, 182fisheries 6, 25, 49, 90–1, 101,

124, 127, 153–6, 159–65, 167,181, 182, 185–6, 205, 206,209–11

fishingforeign 55illegal 66, 68, 159–61, 167,

189–90, 209–10, 212rights 27zones 55

INDEX 241

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Five Power Defence Arrangement(FPDA) 98, 101

flag states 124, 175–6, 185Fleet Concentration Period (FCP)

Kakadu 98–9, 103, 104flooding 129Food and Agricultural

Organisation (FAO) 154Food and Agricultural

Organisation (Fisheries)(FAO/Fisheries) 21

force 187–9, 190Forum Fisheries Agency (FFA)

20, 89–92, 159fossil fuels 129, 209free movement of ships 175freedom for the seas 2freedom of the seas 1–2, 24, 25,

26, 27, 28, 141, 180Fund Convention 118

gas 49, 81, 150Global Environment Facility 94Global Maritime Distress and

Safety system 178Global Ocean Observing System

(GOOS) 204Global Program of Action (GPA)

169global security 33global warming 93, 212Great Barrier Reef 109, 175greenhouse gases 94, 129Grotius, Hugo 24–5Group of 77 9Gulf Stream 201

Hazardous and NoxiousSubstances Convention 119

hazardous wastes 112, 129; seealso waste disposal

Heard and McDonald Islands(HIMI) 159–61

Heard Island 3, 56, 159–61hegemony 37–8high seas 9, 23, 115, 153–65Honiara 101Hume, David 23

hydrocarbon concessions 144–5,150

hydrographic survey 178, 200

illegal fishing 66, 68, 159–61,167, 189–90, 209–10, 212

illegal immigrants 55, 68, 129,167, 184, 212

incidents at sea (INCSEA) 83Indian Ocean Tuna Commission

(IOTC) 159infectious diseases 129information-sharing 212institutional success 12integrated stewardship 202–3interdisciplinary coordination 4Intergovernmental Oceanographic

Commission (IOC) 21International Association of

Lighthouse Authorities 178International Commission for the

Conservation of Atlantic Tunas(ICCAT) 161

international conventions 3, 166International Institute for

Strategic Studies (IISS) 63international law 24, 156–8, 180International Maritime

Organisation (IMO) 17, 21,107, 108, 125, 173, 183, 184

international navigation 7international peace 33International Seabed Authority

121, 124international system 37International Tribunal on the

Law of the Sea 121, 124International Year of the Ocean 79Intervention Convention 115–16

Japan 102, 140–1; see also EastAsia

joint-development approach 150–1Joint Development Zone 99, 193jurisdictional issues 207–9

Korea see East AsiaKurile Islands 63

242 OCEANS GOVERNANCE AND MARITIME STRATEGY

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landlocked states 9Law of the Sea Convention

(LOSC)and maritime pollution 106–10as international treaty 2, 6,

8–9, 23, 30, 83–4, 89–91,123, 180

Australia 56, 167–8issues, disputes 31, 42, 60–1,

81, 121recent developments 79, 121,

126–7, 153–4Leeuwin Current 201liability regimes 119–19Ligitan Island 63litigation 189–90London Convention 169London Dumping Convention

110, 112, 114, 183Lord Howe Island 56

McDonald Island 56, 159–61McLachlan, Ian 104Macquarie Island 56Mahan, Alfred Thayer 27, 28Majuro Declaration 91, 92Malacca Straits 134management measures 157Mandate on Marine and Coastal

Biological Diversity 167mapping 56, 201marine environment 92–4, 96,

107, 125–6, 128, 170biodiversity 2control of 28defence forces to monitor 129degradation 129, 130, 131, 137economic dimension 31preservation and protection 2,

9, 17, 18pressures on 130security of 129–38

marine industries 49marine resources 23, 28, 60, 81,

92access to 141–2Australia’s rights 56East Asia region 41–2present status 80, 81

treaty 90–1marine science 3, 4marine technology 3, 9, 19maritime alliances 35maritime capabilities 60, 81maritime cooperation mechanism

84–6maritime education 178Maritime Information Exchange

Directory (MIED) 71, 103maritime issues 66maritime jurisdictions 141–3maritime power 28, 37, 41

American 35English 26–7Soviet Union 35

maritime regulation 28maritime security 59–78; see also

securitymaritime strategy 27, 29, 32,

48–58, 211, 212marque 26Melanesia 88–95Micronesia 88–95mid-ocean ridges 201Miles, Professor Edward 205,

206, 209military expenditure 39–40mine countermeasures (MCM)

100, 103, 104minerals 25mining 184Mischief Reef 151money-laundering 94, 95monitoring 13Mortimer, John 57multilateralism 62, 180–90Munk, Walter 199

National Environment ProtectionMeasure (NEPM) 171

national jurisdiction ininternational waters 184–7, 190

National Marine Safety Strategy176

Nauru 88navies

apprehension by 187arms build-up see arms build-up

INDEX 243

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Brunei 100capabilities 40challenge for 205–6China’s 61cooperation of 96–105enforcement agencies 186–7functions of 29, 30–1implications for 211Indonesian (TNI-AL) 99–100jurisdictional issues 184–90mobility 31–2need for 27–8personnel numbers 44reduction of power 40Royal (RN) 51Royal Australian (RAN)

49–52, 57, 96–105, 164Royal Malaysian 99Royal New Zealand (RNZN)

51, 102Singaporean 100strategic concepts 29strength 37Thai (RTN) 100triad of roles 27, 28, 31, 32

American capability 35United States (USN) 36, 40,

45–6use of force 187–8

navigation 17, 178navigation straits 9New Caledonia 88new science 196–8New Zealand 102Niue 88, 101–2Niue Treaty 162, 181, 185non-governmental organisation 75Norfolk Island 56Northeast Asia 102, 136, 146Northern Islands 81nuclear war 38nuclear weapons 35, 36, 38, 61,

134–5, 209

O’Connell, Professor D.P. 32ocean circulation 200ocean policy 8, 197ocean regimes 83–4

architecture of 8–10

design of 10–16development of 23, 24–6effective 15–16game power 14–15, 18, 20performance 16–19provisions 17

oceanographic research 200–4oceans

complexity of 194–6control of 35exercise of power on 26–31exploitation 2, 18, 23, 25, 26,

28, 66governance 61jurisdiction over 25knowledge of 193–4management 30, 77, 203ownership of 23policing of 28rules for use of 2security of 77

oceans policy 3, 6, 168, 202–3offshore estate 30oil 25, 41, 49, 81, 113–9, 129,

133–4, 136, 137, 139, 143–50Ostrom, Elinor 11over-fishing 30, 77; see also fish

stocksoverpopulation 129, 130–2, 137

Pacific Community 89Pacific Patrol Boat Project 101Pacific region 88–95Papua New Guinea (PNG) 88,

101, 104Paracel Island 63peacekeeping 52, 74petroleum 143–50pipelines 17piracy 66, 70, 157, 183, 212policing 28, 153–65pollock 155polluter pays principle 172pollution 7, 30, 77, 125, 133–4, 212

chemical 133, 176–7controls 19, 106dumping 167, 168–72, 183exclusive economic zones

108–10

244 OCEANS GOVERNANCE AND MARITIME STRATEGY

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hydrocarbons 82land-sourced 93, 125, 127,

169, 170–1marine 26, 82, 106–20, 130nuclear 209oil 66, 133–4, 137radioactive 93, 111, 112, 134–5trans-boundary 129vessel-sourced 17, 82, 93,

107–10, 113–15, 125, 127,167, 172–8

waste disposal 93, 110–13oil 113–19

Polynesia 88–95population growth 129, 130–2,

137, 184poverty 129power 60Presential Sea 7privateering 27Pulau Batu Putih 63Putnam, Robert 11–12, 13

radioactive waste 93, 111, 112,134–5

recreational boating 176refugees 129; see also illegal

immigrantsregimes for ocean governance 122Regimes Summit 8regional conservation 157regional fisheries management

organisation (RFMO) 185regional oceans management 77regional security dialogue 70, 71regional stability 97Replenishment at Sea 103reprisal 26resources see marine resourcesRhodian Sea Law 26rights of passage 2Royal Australian Air Force

(RAAF) 55, 57Royal Australian Navy (RAN)

49–52, 57, 96–105, 164; seealso navies

safe passage 19, 28

Safety of Life at Sea Convention173–4

Samoa 88Sand, Peter 11science 3, 4scientific method 194–5scientific research 9, 13, 17, 19Sea of Japan 81Sea of Okhotsk 81sea lines of communication

(SLOCs) 59, 66, 81seabed 9sealanes 17seamounts 201seapower 22–3, 26, 32, 33–47

Cold War 34–6insecurity 40–6post-Cold War 36–40security 39–40; see also securityvalue of 36

search and rescue 101, 167, 176,178

Second-Track activities 75–7security 60, 97–8, 123, 129–38,

139–52China’s positive attitude 86–7cooperation 79–87maritime mechanism 84–6scope of 82–84

Selden, John 24–5Senkaku Island 3, 63, 81, 146–7,

148ship safety 175–6shipping 133, 172–8, 212Sipidan Island 63slave trade 183soil degradation 129Solomon Islands 88South China Sea 7, 122South China Sea Working Group

149South East Asian Treaty

Organisation (SEATO) 51South Korea 141; see also East

AsiaSouth Pacific 161–3South Pacific Applied Geoscience

Commission 89South Pacific Forum (Forum) 89–90

INDEX 245

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South Pacific RegionalEnvironment Program (SPREP)89, 92–4, 111–12

Southeast Asia 50maritime engagement 98–100regional conflict 62–3

Southeast Asian Program inOcean Law (SEAPOL) 6, 20–1

southern bluefin tuna (SBT) 3,163–4

Southern Ocean 159Southwest Pacific maritime

engagement 100–2sovereignty 3, 24, 27, 28, 30, 43,

55, 59, 60, 101, 123, 147–8Spratly Islands 3, 61–2, 63, 81,

143–4, 148, 151stateless vessels 183Strait of Malacca 80, 183strategic architecture 60strategic culture 40–3strategic environment 55strategic mobility 29submarine cables 17submarines 103–4Sunardi, Rear Admiral R.M. 76superpowers 33supply 139–41sustainable development 129

Taiwan see East AsiaTakeshima 146, 148territorial disputes 81, 143–50,

212territorial waters 9, 17, 23, 25, 29terrorism 182, 187Three Mile Island 135Till, Geoffrey 29–30Timor Gap 99, 103Tokdo 146, 148Torrey Canyon 117, 118Track-One mechanisms 20Track-Two mechanisms 20, 75–7,

149trade 81

tragedy of the commons 23Trail Smelter Arbitration 106transboundary disputes 122–3transparency 13, 61, 70, 82trawling 160Treaty of Tordesillas 26triad of naval roles 27, 28, 31, 32Truman Proclamations 25tuna 90–1, 161–3

United Nations Agreement onStraddling Fish Stocks andHighly Migratory Fish Stocks122, 124, 206, 210; see alsoUnited Nations ImplementingAgreement

United Nations Conference onEnvironment and Development(UNCED) 10, 122–6

United Nations Conference onthe Law of the Sea (UNCLOS)2, 6, 122–6

United Nations ImplementingAgreement (UNIA) 154–8, 161,163–4, 165, 182, 185, 187–9

urbanisation 129, 131

Vanuatu 88vector-borne diseases 129vessel monitoring systems (VMS)

162–3Vienna Convention 181, 188Vietnam see East Asia

waste disposal 93, 110–13, 169,172

water quality 170, 171–2weapons systems 34, 36Welwood, William 24Western Pacific Naval Symposium

(WPNS) 70, 102–3Woody Island 61World Ocean Circulation

Experiment 203

246 OCEANS GOVERNANCE AND MARITIME STRATEGY