Australia’s “terror exclusion zone” and reading past the headlines

Much as I am forever cringing at the present Australian government’s general shoot-from-the-lip approach to international law, you’d have thought they’d have learned something from the fiasco over our announcing a policy on pre-emptive strikes against terrorist within neighbouring State’s territory. Of course, Indonesia, Malaysia and others were not best pleased about this, resulting in some furious back-pedalling.

So, it was with some surprise that I read in the The Independent the headline “Australia to impose 1,000-mile 'terror exclusion zone'”:

In a controversial and possibly illegal step, Australia plans to intercept and board ships on the high seas if it believes them to be a terrorist threat.

The Prime Minister, John Howard, yesterday announced the creation of a 1,000-nautical mile security ring around the coastline, extending south of New Zealand and north of Indonesia, far beyond Australian territorial waters.

All vessels that pass through the zone en route to Australia will be monitored, and required to give details of their crew, location, speed, cargo and destination port. Defence and customs officials will be given powers to intercept those suspected of being a threat.
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Legal experts suggested yesterday that intercepting ships in international waters would contravene maritime law and provoke an outcry.

Don Rothwell, a professor of international law at Sydney University, said Australia was entitled to monitor ships beyond the 200-nautical mile limit of its territorial waters.

But he told the Australian Broadcasting Corporation: "With the exception of pirate ships and ships that are not flying flags, and one or two very minor exceptions, there is no real basis upon which any country can just stop any ship at all on the highs seas because it does infringe this fundamental freedom of high seas navigational freedom.

"If they are proposing to enforce this zone within the maritime zones of our adjacent neighbouring states, that would really be seen as quite a hostile act."

The Independent’s “security ring” looks like it might have been inspired by The Australian’s “security zone”:

AUSTRALIA is casting a 1000-nautical mile security zone around the coastline as part of a new maritime plan to counter terrorism and protect shipping, ports and oil rigs from attack.

Under the new offshore protection command, the Howard Government will monitor thousands of ships approaching some of the busiest shipping lanes in the world and intercept suspicious vessels.
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Existing navy and Customs ships and resources will be used, but much more will be demanded from international shipping in Australian waters.

The $4 million revamp of maritime security arises from a taskforce that identified threats from the sea as fears increase around the world of terrorist attacks through less secure ports and on vulnerable oil tankers.
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The US has also introduced restrictions on movement and more exact information about cargo and passengers within its nautical zone and is demanding similar action from its trading partners.

The US has dramatically lifted its demands on shipping within its national waters amid fears of a cataclysmic explosion of a ship carrying chemicals or oil in a crowded port.
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The Australian Maritime Information Zone, which will extend to 1000 nautical miles, will demand that ships passing through provide details of their journey and what they are carrying.

When ships come within 200 nautical miles they will be required to give even more detail of cargoes, ports visited, ship owners, registration and destination.

Under the new arrangements, due to begin in March next year, a Joint Offshore Protection Command will take responsibility for all offshore security and co-ordinate civilian and military operations.

It will be able to independently order the interception of ships within the information zone, rather than waiting for a specific report, as is the case now.

Then I went to the PM’s website, for the original press release:

Based on cooperative international arrangements, including with neighbouring countries, the Australian Government also intends to establish a Maritime Identification Zone. This will extend up to 1,000 nautical miles from Australia’s coastline. On entering this Zone vessels proposing to enter Australian ports will be required to provide comprehensive information such as ship identity, crew, cargo, location, course, speed and intended port of arrival. Within Australia’s 200 nautical mile exclusive economic zone, the aim will be to identify all vessels, other than day recreational boats. The collection and coordination of this maritime information will improve the effectiveness of civil and military maritime surveillance in support of key tasks such as border and fisheries protection, as well as counter-terrorism response and interdiction. The Zone will be managed by the Joint Offshore Protection Command at an additional cost of $4m over four years. The protection of Australia’s oil and gas facilities is a key focus of the Australian Government’s priorities to enhance offshore maritime security.

The critical words here are “[b]ased on cooperative … arrangements … with neighbouring countries” if that’s done the proposal is much less likely to be seen as “hostile”. (Though as Don Rothwell points out, some shipping states might still see these procedures as infringing upon the freedom of the high seas.)

Okay, it’s ambiguous as to whether counter-terrorism interdictions would be limited to the exclusive economic zone (which I think would still exceed Australia’s powers as a coastal state, except to protect oil platforms) or would range out to 1,000 miles – taking in Indonesian and New Zealand territorial waters.

But nothing in the document directly talks about interdictions inside this 1,000 mile zone. That’s pure media hype and shabby research.

So, naturally, you’d expect that our neighbours would’ve been briefed, right? That it would have been explained that this really about gathering information, not asserting a right to land the SAS on ships in their waters in violation of their sovereignty, right?

However, the word on “international law street” is that the Australian announcement took New Zealand by surprise, the Kiwis not previously being aware that their waters were subject to Australian security enforcement. Though it seems they have no problem provided it is only a plan to ask ships for information out to 1,000 miles as they already do that themselves.

Others are less sanguine. Malaysia has already criticised the plan and Defence Minister Robert Hill has had to calm the predictable Indonesian reaction, saying that this is just about protecting offshore oil rigs.

Still, as for diplomacy and selling the message: nice one John, nice one Alexander.