Global Courant
A legal basis for AUKUS is freedom of navigation. This raises a number of fundamental issues under international maritime law that have largely been sidestepped in AUKUS debates.
For example, where can Australia’s nuclear-powered AUKUS submarines sail? Will there be restrictions on their navigation? What does international maritime law say about submarine navigation?
These issues are highlighted in the debate on AUKUS in Southeast Asia since the deal between Australia, United Kingdom and United States was announced in September 2021.
Indonesia And Malaysiafor example have concerns expressed about the possible presence of Australian nuclear-powered submarines in their waters. This deals directly with the question of how freedom of navigation can be exercised by submarines under the law of the sea, in particular nuclear submarines.
It is helpful to consider the waters in which the AUKUS submarines will primarily operate in order to map out the legal issues. The subs will most likely be based at HMAS Sterling in Western Australia or somewhere along Australia’s east coast.
During operations, the submarines would move from their base beyond the Australian territorial sea of 12 nautical miles to the Australian territorial sea of 200 nautical miles exclusive economic zone (EEZ). Within those waters, the submarines would exercise navigational rights as Australian-flagged warships.
Beyond the Australian EEZ are the high seas of the Indian Ocean and the Pacific where the submarines can conduct patrols. Freedom of navigation on the high seas is a fundamental principle of maritime law and international law. There is no legal impediment to the submarines being able to navigate the high seas.
But navigation becomes more sensitive and controlled in other waters and this is where the law of the sea becomes prominent.
The 1982 UN Convention on the Law of the Sea (UNCLOS) — the “Constitution of the Oceans” — is the main treaty governing the oceans. Indonesia, Malaysia, the Philippines, Singapore and Thailand and the major states of the Southwest Pacific are all parties to UNCLOS.
While the United States is not a party to UNCLOS, it has consistently argued that the treaty represents customary international law. This position is generally not contested with regard to the main provisions relating to navigation.
UNCLOS rights to freedom of navigation were critical in negotiating the treaty and allowed coastal states to claim a territorial sea of 12 nautical miles and 200 nautical miles EEZ.
The claims were also essential to the eventual recognition of the concept of the archipelagic state – an important goal for some island nations – and one that Indonesia and the Philippines advanced during the UNCLOS negotiations.
AUKUS nuclear submarine deal is already making ripples in the Indo-Pacific. Image: US Embassy in China
The great maritime powers would not have agreed to expanded maritime zones and recognition of the status of archipelago states without clear legal claims to freedom of navigation within certain waters for merchant ships and warships, including submarines.
UNCLOS recognizes the right of innocent passage for the ships of all States within the territorial sea (Article 17). These rights expressly include submarines, subject to surface navigation and display of their flag (Article 20).
But territorial naval navigation by AUKUS submarines is not central to their defense and strategic capability. More important is the submarines’ ability to navigate international straits, especially archipelago waters.
The Torres Strait and Straits of Malacca and Singapore surround Australia. But these straits are shallow, congested and challenging for navigation and less attractive to submarines. passage is the UNCLOS navigation law applicable in international straits (Article 38).
Submarines must pass through international straits without delay and refrain from threats or use of force and activities other than those consistent with “normal forms of continuous and rapid transit” (Article 39).
This means that submarines can navigate underwater through an international strait where it is safe to do so. Coastal states have limited capacity to regulate the passage of such vessels, which also enjoy sovereign immunity.
The Regime of archipelago sea avenues passage (ASLP) within recognized Archipelago States (Article 53) – of which there are 22, including Indonesia, Papua New Guinea and the Philippines – is also important to AUKUS. ASLP’s right modifies transit through archipelago waters – a body of water made up of multiple interconnected straits.
Within designated archipelago sea routes or normally used navigational routes, ships can navigate archipelago waters – such as an international maritime highway – from a point of entry to a point of departure.
Submarines can pass archipelagos underwater and the archipelago state has a very limited capacity to regulate submarine navigation conducted in accordance with UNCLOS.
The ability of AUKUS submarines to navigate from Australian waters through the straits and archipelagos of Southeast Asia to the South China Sea and East Asia rests on the freedom of navigation recognized in UNCLOS.
Freedom of navigation is a right that the US Navy – both its submarines and its other nuclear-powered and nuclear-armed warships – has exercised for decades. Submarines engaged in transit passages or ALSP must not be impeded in their navigation. This right to navigation, when exercised in accordance with UNCLOS, cannot be suspended.
Attempts to single out Australia’s future nuclear-powered AUKUS submarines for exceptional navigation regulation are inconsistent with the law of the sea.
Donald R Rothwell is Professor of International Law at the ANU College of Law, The Australian National University.
This article was originally published by East Asia Forum and has been republished under a Creative Commons license.
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