Freedom of Navigation in the Indo-Pacific Region

International law generally, and the law of the sea in particular, exert a tremendous

influence on Australian interests, not merely in the oceans around the continent,

but within the Australian economy generally. Australia asserts its jurisdiction over

the largest maritime area in the world, with an exclusive economic zone (EEZ) and

continental shelf over 1.5 times the size of mainland Australia, and a search and

rescue responsibility covering 10 per cent of the globe. Over 95 per cent by volume

of Australian international trade reaches Australia by sea. Over 99 per cent of the

data traffic passing along communications links reaches Australia through fibre optic

submarine cables. The Australian fishing industry, although small by world standards,

generates over $50 billion per annum into the national economy. More fundamentally,

over 85 per cent of the Australian population lives within an hour of the coastline, all of

which provides a strong domestic security imperative for the Australian Defence Force

(ADF) and other Government agencies to keep Australia’s maritime areas adequately

under surveillance and protected. The law of the sea has a direct impact on ensuring

these interests can be protected and the means and mechanisms available to Australia

to do so. This paper examines relevant trends in the law of the sea that impact upon

Australian interests, and assesses regional law of the sea practice.

In part, this paper has been prepared as an analysis of, and response to, the paper

entitled A Stronger and More Prosperous World through Secure and Accessible Seas

prepared at the United States Naval War College (NWC) under the direction of the

then Stockton Professor of International Law, Craig Allen. That paper was the result

of a workshop on the future legal global order and was attended by 42 legal experts,

from the United States and 10 other States working in government and academia, in

November 2006. The workshop participants, on a non-attributable basis, attempted

to predict the shape and content of international law as it would affect global legal

order between 2006 and 2020. This paper will examine the conclusions reached by

the experts in the NWC paper and comment on their conclusions. As an effort at

prognostication, it is impossible to evaluate the validity of the conclusions reached,

as it relates to events that have yet to occur, and may not occur for over a decade into

the future. It will however, attempt to test the probability of the experts’ predictions,

in the light of current developments and past State practice.