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Australian Naval Review 2019 – Edition 1
The Australian Naval Review is the annual publication of the Australian Naval Institute (ANI). After the retirement of the quarterly Headmark, the ANI transitioned to an annual peer-reviewed journal in 2016. This is alongside the frequent publication of articles on the Institute’s website.
Editorial Commodore Justin Jones, CSC, RAN Coordinators Midshipman Kayla De Wit, RAN Midshipman Jamie Newton, RAN Midshipman Ben Page, RAN
Editor Ms Kiri Mathieson
Printed by Instant Colour Press, Canberra Set in Calibri 12pt
ISSN 2207-2128 (Hard Copy)
Copyright of the articles published in this issue, unless specified, resides with the authors. Copyright in the form of the article printed in the Australian Naval Review is held by the Australian Naval Institute.
1 Australian Naval Review 2019 Australian Naval Review 2019 – Edition 1 About the ANI The ANI is the leading forum for naval and maritime affairs in Australia. Formed in 1975, the main objectives of the ANI are:
• to encourage and promote the advancement of knowledge related to the Navy and the maritime profession; and • to provide a forum for the exchange of ideas concerning subjects related to the Navy and the maritime profession.
Contributing to the ANR The ANI publishes articles and comments on naval and maritime issues. Articles concerning naval strategy, operations, administration or policy are of particular interest, but we will consider all articles.
Contact the ANI Secretariat at [email protected] for further information (including the Australian Naval Review’s Style Guide for prospective authors) or to submit a contribution to the Review.
Disclaimer The views expressed in this review do not represent the official views of the Royal Australian Navy, the Australian Defence Force, the Chief of Navy or the ANI. That said, Headmark, and now the Australian Naval Review, have a proud tradition of over 40 years of contributing informed research, writing, and opinion on naval and maritime matters.
ANI Membership Members of the ANI receive discounts on events run by the Institute, a copy of the annual Australian Naval Review, full access to the ANI website and the knowledge that they are contributing to the ever-important public debates on naval and maritime affairs. Further information on membership is available on the Institute’s website (www.navalinstitute.com.au) or from the ANI Secretariat ([email protected]).
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Council
President Vice Admiral Peter Jones, AO, DSC, RAN (Retired) Vice President Commodore Allison Norris, CSC, RAN Treasurer Captain Nick Tate, RAN Secretary Lieutenant Commander Stephanie Foulkes, RAN Councillors Mr Steve Bell Captain Guy Blackburn, RAN Lieutenant Commander Andrew Collingwood, RAN Midshipman Kayla De Wit, RAN Dr Gregory Gilbert Rear Admiral Lee Goddard, CSC, RAN Commander Richard Hobbs, RAN (Retired) Commodore Justin Jones, CSC, RAN Mr Brian Mansell Commander Geoffrey McGinley, RAN Midshipman Ben Page, RAN Captain Tom Phillips, RAN Midshipman Jamie Newton, RAN Brigadier Will Taylor, OBE, RM (Retired) Lieutenant Commander Desmond Woods, RAN Business Manager Ms Sue Hart
Front Cover: The ship’s company in HMAS Success gather on the flight deck to celebrate the ship’s 33rd birthday during IPE19. Photographer: LEUT Daniel Khayat. Back Cover: Officers and sailors from eastern based ships and establishments fall out on HMAS Canberra’s flight deck, at the conclusion of Fleet Divisions in Garden Island, Sydney. Photographer: LSIS Kayla Hayes.
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Table of Contents
Foreword from the President ...... 5 Vice Admiral Peter Jones, AO, DSC, RAN (Retired) 2019 McNeil Prize ...... 7 Mr Peter Jenkins A Message from the Chief of Navy ...... 9 Vice Admiral Michael Noonan, AO, RAN Game Changing in the Indo-Pacific ...... 15 Professor John Blaxland Freedom of the Seas? Early Australian attitudes towards maritime belligerent rights ...... 23 Dr Richard Dunley Submarines’ Future – Some Possible Pointers ...... 32 Dr Norman Friedman Providing certainty at sea: clarifying the rights of warships in relation to innocent passage and military operations in the Exclusive Economic Zone ...... 46 Lieutenant Simon Lindsay, RAN A Strategy of Maritime Pressure ...... 64 Dr Thomas G. Mahnken The Royal New Zealand Navy ...... 70 Rear Admiral David Proctor
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Foreword from the President 5 Foreword from the President Vice Admiral Peter Jones, AO, DSC, RAN (Retired)
Since the last edition of the Australian Naval Review, the Australian Naval Institute (ANI) has continued to sharpen its efforts to be a meaningful forum to exchange ideas and inform people about Australian and regional naval and maritime issues. To that end we plan to publish two editions of the Australian Naval Review each year. This, the fourth edition of the Australian Naval Review, reflects our desire to provide articles not only about Australian naval developments, but also about the broader region. We are therefore delighted to publish articles from such a distinguished array of senior naval officers, academics and other experts from Australia, New Zealand, United Kingdom and the United States. The ANI is very conscious that the Indo-Pacific region is by its nature maritime and that the many naval changes underway will have a profound impact on the future geopolitical environment. For this reason, this edition has articles that span from the technical to the strategic. At this year’s ANI Annual Dinner, the Vernon Parker Oration was delivered by Air Chief Marshal Sir Angus Houston, AK, AFC (Retired). His oration was titled Strategic Challenges and Uncertainty: Navigating a Way Forward and gave an insightful overview of Australia’s future strategic challenges and how it should prepare for
5 Australian Naval Review 2019 Vice Admiral Peter Jones them. The Oration will be included in full in the second edition of the Australian Naval Review for 2019, due to be published late this year. The ANI has over many years highlighted the vital relationship between Australian industry and the maintenance of Australia’s naval capability. In 2017 this appreciation was crystallised with the inauguration of the McNeil Prize which is awarded to an individual or team from Australian industry that has made an outstanding contribution to the Royal Australian Navy’s capability. This edition provides a profile of this year’s very deserving recipient of the McNeil Prize. I trust you enjoy this edition of the Australian Naval Review.
Vice Admiral Peter Jones, AO, DSC, RAN (Retired) President Australian Naval Institute
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2019 McNeil Prize 7 2019 McNeil Prize Peter Jenkins
The prestigious Australian Naval Institute McNeil Prize is named in honour of Rear Admiral Percival McNeil, CB, RAN (1883-1951), one of the founding fathers of Australian shipbuilding. Rear Admiral McNeil’s contribution to both the Navy and industry is particularly noteworthy, as was his faith in Australia’s ability to build world class ships.
The McNeil Prize, instituted in 2016, is awarded to an individual or team from Australian industry who has made an outstanding contribution to the capabilities and sustainment of the Royal Australian Navy (RAN).
The McNeil Prize is presented at the Institute’s annual Vernon Parker Oration and dinner, and is judged by an esteemed panel of retired naval officers. This year, the panel consisted of Vice Admiral David Shackleton, AO, RAN (Retired), Rear Admiral Rowan Moffitt, AO, RAN (Retired), and Rear Admiral James Goldrick, AO, CSC, RAN (Retired). This year’s prize was presented by the Deputy Chief of Navy, Rear Admiral Mark Hammond, AM, RAN, in front of a near capacity audience, which included members of the McNeil family, at the Vernon Parker Oration on 5 June 2019.
The winner of the 2019 McNeil Prize is Peter Jenkins, founder and Managing Director of Jenkins Engineering Defence Systems Pty Ltd (JEDS).
Deputy Chief of Navy, Rear Admiral Mark Hammond, AM, RAN presents the 2019 McNeil Prize to Mr Peter Jenkins, of JEDS.
7 Australian Naval Review 2019 2019 McNeil Prize Peter founded Jenkins Defence & Electronics (J.D. & E.) 30 years ago when, reading the winds of change, he pre-empted Defence’s outsourcing of his Commonwealth Public Service ‘Supervisor Electronics’ role at Garden Islands Dockyards, Sydney, and picked up the electronics work – primarily Electronic Warfare (EW)-related, he and his team had previously performed for the Navy.
In addition to Naval Stores maintenance and repair work, the company supported Navy’s Tactical EW Support Section with multi-platform installation of EW equipment for deploying ships. Following the sell-off of Australian Defence Industries’ electronic calibration and ranging facility at St Marys, Peter installed a 10m fully computerised Radio Frequency (RF) - anechoic chamber capable of ranging maritime antennas at his company’s workshop in Banksmeadow.
From 1992-96 J.D. & E. designed, developed, manufactured and installed an EW antenna to replace the underperforming overseas-developed periscope antennae on an Oberon-class Submarine. In 1996, the company diversified through upgrading the Army’s Strategic RF Direction-Finding (DF) system at Cabarlah, QLD while retaining a RAN focus by establishing a business relationship with US-based Condor Systems Inc. to market and support their maritime electronics technologies in Australia.
In 1998, the company was renamed JEDS and achieved AS/NZS ISO 9001 certification. Peter supported Condor’s successful bid to provide a Radar Electronic Support (R-ES) system to the then new Collins-class submarine fleet in the early 2000s. At the same time, JEDS was awarded a rapid acquisition contract to provide an ‘interim’ Periscope Antenna Unit (PAU) for the Collins’. Both systems have been an outstanding success story for the Navy with Peter leading his Company in 2017 to win a contract to upgrade the PAU with a DF capability – followed by a contract in 2018 to upgrade the (now Harris) R-ES system to the latest variant.
This success supporting RAN’s submarine fleet has been replicated on RAN’s surface combatant fleet. Peter has made a significant contribution to Navy - successfully growing JEDS to a forty-strong enterprise with facilities on both coasts with a primary focus on supporting the fleet.
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A Message from the Chief of Navy 9 A Message from the Chief of Navy Vice Admiral Michael Noonan, AO, RAN
As I approach my one-year anniversary as Chief of Navy, it is significant to review what our Navy has achieved over the last 12 months, and to re-affirm where we are heading.
The Royal Australian Navy remains an institute that is essential to the security and prosperity of Australia, and our maritime region. This is reinforced every day, in all that we do.
We have maintained our commitment to Operation MANITOU in the Middle East Region, Operation RESOLUTE to our North, and increased our presence in Asia and the South West Pacific. We have commissioned new Squadrons and Ships and supported our people, ships, submarines and aircraft in operations, exercises and trials around the globe.
I recently embarked in HMAS Canberra at Singapore as one of our Australian Defence Force (ADF) Task Group units taking part in Indo-Pacific Endeavour 2019 (IPE19). Force elements from Army and Air Force and representatives from the Department of Foreign Affairs and Trade joined our task group of HMA Ships Canberra, Success, Newcastle and Parramatta. The units transited through Southern Asia and visited Sri Lanka, India, Malaysia, Thailand, Vietnam, Singapore and Indonesia.
This deployment is indicative of the work our people do every day, and the significance of over 1200 ADF personnel taking part in IPE19, aimed to strengthen relationships and promote security and stability with Australia’s key regional partners, cannot be understated. Such deployments and engagements are integral to the contribution to security and stability in our region and demonstrates a significant shift, with a concurrent increase in demand on maritime forces.
This increase in demand comes at a time when we are also working on the transition of a number of new capabilities into service, including the Hobart class destroyers, Supply class tankers, Arafura class Offshore Patrol Vessels, Hunter class frigates and 9 Australian Naval Review 2019 Vice Admiral Michael Noonan Attack class submarines. This is a major undertaking, which places ever-increasing pressure on our people.
To achieve our 2022 Headmark of being ready to conduct sustained combat operations as part of the joint force, my top three priorities as we progress through 2019 and 2020 are: people, meeting increasing demand, and successful capability transition.
• People. People remains my highest priority and we continue to develop a series of measures and initiatives to ensure we generate the workforce required to sustainably operate our current and future force while meeting increased demand. This includes:
o A mantra of people first, mission always. Our Navy must grow while competing for intellectual, ethical, skilled and professional people in a highly competitive job market. Our people need to give us a combat edge; they need to be empowered, motivated and resilient. By valuing their contribution, supporting them in difficulties, and by inspiring them to excel, we will ensure that we retain our best and brightest.
o As we celebrate the 10th anniversary of the introduction of New Generation Navy (NGN), it is testament to the strength of NGN’s foundations that it is still relevant today and fully supported by consecutive Chiefs of Navy. This year, we will contemporise NGN and it will be re-branded as Next Generation Navy, guiding us to continued cultural improvement and directly supporting our workforce retention.
o Improving retention levels to reach the target workforce growth necessary to support our Navy’s capabilities is a key component of the Navy Strategic Workforce Plan 2018-2023. This includes a number of financial and non-financial initiatives that are designed to reduce separation rates, particularly in the critical ranks of Leading Seaman through to Lieutenant Commander.
• Demand. Providing the ships and supporting capabilities to sustain Australia’s increasing domestic operations, regional engagement and to be prepared for warfighting operations. 10 Australian Naval Review 2019
A Message from the Chief of Navy o The extensive military-to-military engagement and relationship 11 building, which took place during IPE19, was important to develop shared understanding, trust and capacity to respond to a full spectrum of real-world incidents in the region. We can expect these deployments to continue, and to grow in importance.
o While our commitment to our region has never wavered, we have increased the tempo of activity in the near region, and since January 2019, our Navy has maintained a near-continuous presence in the South West Pacific. We have a further 22 ships scheduled to conduct port visits in our near region from May 2019 to May 2020.
o Domestic security operations will continue to be the Government’s highest priority and our Navy will continue to support the inter-agency task force through contributions to Operation RESOLUTE.
o Warfighting preparations involve increasing and improving our lethality in terms of capability, effectiveness, warfighting capability and survivability. These preparations will continue to be progressed through a number of regional and multi-national exercises and operations, involving each of our force groups.
• Capability. Capability assurance of our acquisition and sustainment programs to provide Australia the necessary maritime power to achieve its strategic interests is essential. We have a number of key projects that are now well into the design and construction phases and our ability to effectively manage the transition into service of these capabilities is paramount.
o The continuous delivery and introduction into Service of new platforms, systems and infrastructure is being carefully managed to ensure all Fundamental Inputs to Capability are fully addressed.
o The emergence of new technologies, characterised by unmanned systems, provide significant opportunities to gain further advantage in future contested environments and processes are being introduced to ensure we can harness these.
11 Australian Naval Review 2019 Vice Admiral Michael Noonan
o Integration with other Joint capabilities and Fifth-Generation networks, and improved lethality will support our capability to Fight and Win at Sea.
The detail in the release of Plan Pelorus 2022 reinforces our Navy Senior Leadership Team’s commitment to achieving our Headmark. We will achieve this by delivering on our outcomes and three command themes: A Thinking, Fighting, and an Australian Navy.
It is important to remember the milestones we are achieving today will be remembered for years to come by our future Navy. At the launch of NUSHIP Supply (II) and keel laying of NUSHIP Stalwart (III) in Spain in November 2018, the history and achievements of their namesakes was as relevant as the future plans for these new ships. In the past, Supply had served in wartime operations overseas, supported peace-time operations with our neighbours in our near region and was integral to Humanitarian Aid and Disaster Relief operations on Australian shores.
Supply (II) and Stalwart (III) will travel the oceans of the world and support Australian and partner Navy warships to extend their endurance and operational range. They will work with our neighbouring navies to promote good will and regional stability. They will provide essential combat support to our frigates, our destroyers and our combatants wherever they operate in the world.
As we decommission HMA Ships Success and Newcastle, we will recall the dates of their launch and commissioning ceremonies, the distances steamed, their achievements across 30-plus years in service. We will note their career highlights and operational deployments. These achieved milestones of our fleet remain relevant as lessons learned as we build and introduce extensive new capability into our Navy to support our mission.
It is also poignant to reflect on our losses as we strive for our future 2022 Headmark. The year 2019 marks 55 years since the Melbourne-Voyager collision, 50 years since the Melbourne-Frank E Evans collision, 21 years since the tragic loss of life in the Westralia fire, and 14 years since the devastating Nias Island Sea King crash. These are not our only losses, but they serve as a reminder that as we prepare for conflict,
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A Message from the Chief of Navy the role of the people in the Royal Australian Navy remains a dangerous one, as we 13 protect our national, regional and global interests. Sadly, it is also not just operations or exercises that are cause for our losses; the often-unseen internal conflicts fought by our people remain a very real threat to those who serve our country.
Over the next year, we will see keel laying, launching, first of class trials, Initial and Full Operating Capability, commissioning, decommissioning, recruiting, retention, and many other milestones set and met. Our Navy will continue to support operations on our shores, and in our near and far regions to maintain the necessary security, stability and prosperity of our region and our nation.
We serve our nation with pride and we are ready.
13 Australian Naval Review 2019 Vice Admiral Michael Noonan
Vice Admiral Michael Noonan, AO, RAN
Vice Admiral Michael Noonan, AO, RAN joined the RAN in 1984, trained as a seaman officer and then subsequently completed Principal Warfare Officers course and specialised in Air Direction and Above Water Warfare.
Throughout his career, he had experience in a wide range of Navy and ADF operations through various sea and shore posting and operational roles. Highlights have included deployments to the Middle East, Southern Ocean and being the Commissioning Commanding Officer of the Anzac class frigate HMAS Parramatta.
He has fulfilled leadership positions at all levels of the Australian Defence Force, with senior positions including the Director of Military Strategic Commitments, Director General of Operations at HQJOC, Commander Maritime Border Command and Deputy Chief of Navy.
In June 2018, he was appointed as an Officer of the Order of Australia in recognition of his distinguished service in significant senior ADF command roles.
Vice Admiral Noonan assumed command of the RAN on 7 July 2018 and is the 32nd professional head of the Australian Navy, and the ninth officer to hold the title of Chief of Navy Australia. In this role, he is entrusted by Government to be its principal naval advisor, and to raise, train and sustain Australia’s naval forces to execute maritime missions in a dynamic region.
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Game Changing in the Indo-Pacific Game Changing in the Indo-Pacific 15 Professor John Blaxland
The notion that the Royal Australian Navy’s two new Landing Helicopter Dock ships (LHDs), HMAS Canberra and Adelaide, presented a capability which would be a game changer in the Pacific has been around for several years.1 In the short time since being commissioned, they have lived up to expectation. This article explores what purpose they serve, the risks they face and the opportunities they present.
There is wide recognition that when Australia felt compelled to intervene in the East Timor crisis in 1999 it was poorly served with amphibious capabilities which would enable the Australian Defence Force (ADF) to project force offshore, let alone to some of the more remote parts of its own shores. The subsequent decision to purchase two LHDs generated controversy, as Australia had abandoned the idea of flat top ships (aircraft carriers) with the decision in 1983 not to replace the decommissioned HMAS Melbourne.
Experience in the late 1980s through to the late 1990s over Fiji, Somalia, Bougainville, East Timor, Solomon Islands and Papua New Guinea built up a compelling case for a more robust amphibious fleet than the one maintained in the 1980s and 1990s.2 In the 1980s, the fleet consisted of a suite of landing craft alongside one British designed Landing Ship Heavy (LSH) HMAS Tobruk. The refurbished US Landing Ships were converted into Landing Platforms Amphibious (LPAs); HMAS Kanimbla and Manoora and were operational by the turn of the century.
These ships proved to be in great demand to support Australian peacekeeping, humanitarian assistance and disaster relief (HADR) operations in places far and wide. Their capabilities, however, were quite limited. They could host very few helicopters, had limited medical facilities and hardly any command and control elements. That meant they could not be relied upon in the face of a sustained or multifaceted crisis which may require endurance, a complicated command and control arrangement to coordinate an array of deployed force elements, or a relatively complicated medical situation.
15 Australian Naval Review 2019 Professor John Blaxland Thankfully, the situations in which they came to be used did not dramatically expose their limitations and vulnerabilities. Insiders, though, understood well that these platforms imposed serious limitations in terms of government policy options in response to crises. It was not surprising therefore that when it came to deciding the way to replace the ageing amphibious fleet, a larger more capable ship design was chosen.
The commissioning of the Canberra class ships opened the way for a more robust engagement strategy with neighbouring countries which coincided with a re- orientation of the ADF from the Middle East back towards its own neighbourhood in the Indo-Pacific, notably in the South Pacific, Southeast Asia and beyond.
Over the last couple of years, the Canberra class ships have formed the nucleus of a task group, tasked to undertake Indo-Pacific Endeavour. Indo-Pacific Endeavour 2019 is the third iteration of this activity involving elements of the Royal Australian Navy, the Australian Army and the Royal Australian Air Force. Collaborating with regional counterparts to undertake a number of activities ranging from seminars, table-top exercises, passage of lines exercises at sea (PASSEX) and HADR coordination activities.
This work is inspired in part by the remarkable impact of the rapid deployment of HMAS Canberra for Operation Fiji Assist in 2016. After a Category 5 storm struck Fiji in February 2016, the Defence website records that the ADF established a joint taskforce to coordinate the provision of HADR stores to Fiji and to synchronise efforts on the ground with the Republic of Fiji Military Forces. Central to these efforts was Canberra. Canberra deployed to Fiji on 1 March 2016 on its first operational deployment. Canberra arrived off the capital, Suva, taking on aid supplies delivered by the RAAF. The ship brought with it 60 tonnes of emergency relief supplies, three MRH-90 helicopters and around 760 military personnel including engineers, carpenters, electricians and plumbers. The RAAF carried out over 40 C-17A Globemaster and C-130J Hercules sorties and the Army’s 16th Aviation Brigade successfully completed its first operational deployment of the new MRH-90 helicopter.3
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Game Changing in the Indo-Pacific What the operation demonstrated was how closely the three services could work 17 together centred on the functions and capabilities of the new amphibious ships. The operation had a dramatic effect. Delivering not only urgently needed aid, medical support and supplies, but generating a cathartic effect on the previously moribund Australia-Fiji relationship. This set the tone which the Indo-Pacific Endeavour series of activities would seek to follow, generating good will, demonstrating capabilities and exploring opportunities for collaboration in anticipation of need that might arise at short notice and to develop relations with counterpart organisations in Australia’s near abroad.
Critics who called the new amphibious ships a waste of money, or too large and vulnerable, have tended to be less vocal since Operation Fiji Assist. The utility of this capability, as a facilitator of rapid HADR response and as a catalyst for improving relations and building ties with neighbours, has been increasingly apparent. The emergence of this utility has coincided with the government’s renewed engagement with its neighbours in the South Pacific, Southeast Asia and other close neighbours in the Indian Ocean.
Critics might still say that this is all well and good, but why does it have to be a warship that provides this kind of support? After all, the ADF doesn’t exist to conduct HADR, but to protect the nation. Interestingly, many are now coming to see the notion of protecting the nation as also encompassing serving the national interest more broadly, including through supporting neighbours in times of need. The latest Foreign Policy White Paper and Defence White Paper have both used language relating to the utility of regional engagement in terms of Australia’s national interests broadly defined.
Part of the argument critics level against the new amphibious ships is their extreme vulnerability to interdiction in a war. On one level, this is self-evident. Should the platform be operating on its own in an unwelcoming environment in circumstances where an adversary can be expected to engage in the use of lethal force, then of course they would be very vulnerable. But we live in a world today where great powers studiously avoid being obvious or too overt in their use of force because of the gravity of the potential repercussions – particularly in a world where several nuclear armed powers have weapons of mass destruction poised for use at short notice. What is more, should there be an outbreak of hostilities affecting Australia, 17 Australian Naval Review 2019 Professor John Blaxland the LHDs are not intended to deploy on their own into hostile waters. Instead, they are designed to operate as a component of a joint force with significant and quite robust sub-surface, surface and air defensive detection and offensive weapons systems provided in support by other naval (surface and sub-surface), air and land components of the ADF team as well as probable support from coalition partners.
The experience being gained by the ADF in collaborating on activities centred on these platforms is having a refining effect on the ADF’s ability to operate together as a joint force. It is also sending a signal to neighbours that Australia is a significant contributor to regional peace and stability and is a friend that can offer a helping hand in time of need.
The LHDs are proving to be a catalyst for change inside the ADF and at the same time they are proving to be a game-changer for the way the ADF engages with and works alongside its Indo-Pacific neighbours.
So far, what has been deployed is to be highly commended. But the challenges are growing - in the Indo-Pacific and beyond. The combination of three issues; (1) governance challenges in the neighbourhood; (2) the prospect of catastrophic events related to global climate change and; (3) the prospect of heightened great power contestation. These combine to suggest that what has been undertaken so far may not be enough for the needs of the future. To go beyond this level of joint and international engagement, there is a requirement for some hard thinking about even more such platforms, of a far greater level of engagement in understanding the neighbourhood and building effective, working and trusted relations with the neighbours.
Considerable work is being done in the context of established bilateral and multilateral relations with countries like New Zealand, Malaysia and Singapore. Much of this is connected with the Five Power Defence Arrangements (FPDA) which also includes the United Kingdom. Established arrangements including the Integrated Area Defence System and the presence of air and land forces at Butterworth, frequent RAN ship visits for port calls and combined exercises, all contribute to deep and firm ties there. More needs to be done though.
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Game Changing in the Indo-Pacific Perhaps the most significant regional partner with which relations need to be 19 enhanced is Indonesia. Ideally the ADF would have ties with their Indonesian counterparts as close as they have with their FPDA partners. That has been made problematic due in part to our different history and culture. In recent years it has been, in large part, as a result of Australia’s ham-fisted handling of issues relating to beef, boats, spies, clemency, Timor, Papua and Jerusalem. Australia must try harder, be more understanding, invest more in learning their language and cultural mores and be more respectful of their sensibilities. Australia’s future is inextricably linked with that of Indonesia, a country ten times Australia’s population that is well on track to eclipsing Australia economically in the near future.
One idea, which has yet to be tried, is the creation of a regional maritime cooperation forum to sweeten ties with Indonesia along with those strong and established ties with other neighbours. Manis is the Bahasa Indonesia word for ‘sweet’. Perhaps it could also be an acronym for such a regional maritime cooperation forum involving Malaysia, Australia, New Zealand, Indonesia and Singapore (MANIS). 4 Others, like Papua New Guinea, East Timor, Thailand and the Philippines could be invited to be participate as well.
What is clear is that the new amphibious ships are contributing to a game changing approach to engagement by the ADF with its Indo-Pacific neighbours. This is a good thing and one which should be the beginning of deeper, closer and more robust collaboration with the neighbours.
19 Australian Naval Review 2019 Professor John Blaxland Professor John Blaxland
John Blaxland is Professor of International Security and Intelligence Studies, and Head of the Strategic and Defence Studies Centre at ANU, overseeing its three degree programs. He is also a Senior Fellow of the Higher Education Academy and Fellow of the Royal Society of New South Wales. In addition, he is a member of the Australian Army Journal editorial board and an occasional commentator in the media.
John holds a PhD in War Studies from the Royal Military College of Canada, a MA in History from ANU and a BA (Honours First Class) from UNSW. He is a graduate of the Royal Thai Army Command & Staff College (Dux, foreign students) and the Royal Military College, Duntroon (Blamey Scholar). He has extensive experience in the intelligence community including as the principal intelligence staff officer for the Australian brigade in East Timor in September 1999, as an intelligence exchange officer in Washington DC, as Director Joint Intelligence Operations (J2), at Headquarters Joint Operations Command (2006/7) and as a lead author of the three-volume history of ASIO. In addition, he was Australia’s Defence Attaché to Thailand and Myanmar. He teaches ‘Honeypots and Overcoats: Australian Intelligence in the World’ and supervises a number of students undertaking higher degrees by research.
His publications and research interests concern intelligence and the security arms of Government, Australian military history and strategy, defence studies, military operations (including East Timor, Korea, Iraq and Afghanistan); international relations, notably on South-east Asia (Thailand, Myanmar, Timor Leste, Indonesia, South China Sea), North America, (Canada/United States) and Australia’s Flag.
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Game Changing in the Indo-Pacific 21
1 See John Blaxland, ‘Game-changer in the Pacific: Surprising Options Open Up with the New Multi- Purpose Maritime capability, Security Challenges, Vol. 9, No. 3 (2013), pp. 31-41. 2 These operations feature in John Blaxland, The Australian Army from Whitlam to Howard, Cambridge, Melbourne, 2014. They are more exhaustively covered in the comprehensive history series covering these operations edited by David Horner and published by Cambridge University Press. See https://www.awm.gov.au/learn/understanding-military-history/official- histories/peacekeeping accessed 13 April 2019. This notably includes David Horner & John Connor, The Good International Citizen: Australian peacekeeping in Asia Africa and Europe, 1991-1993 (2014); Jean Bou & Bob Breen, The Limits of Peacekeeping: Australian Peacekeeping in Internal Conflicts, 2993-2006, (2018); Bob Breen, The Good Neighbour: Australian Peace Support Operations in the Pacific Islands, 1980-2006 (2016); and Steven Bullard, In Their Time of Need: Australian Overseas Emergency relief Operations, 19118-2006, (2017). 3 See ‘Operation Fiji Assist – first test of new Defence capabilities’ at http://www.defence.gov.au/AnnualReports/15-16/Features/09-OperationFijiAssist.asp accessed 13 April 2019. 4 See John Blaxland, ‘MANIS: Time for a new forum to sweeten regional cooperation’, Centre of Gravity series, Strategic and Defence Studies Centre, Australian National University, June 2016.
21 Australian Naval Review 2019 © Commonwealth of Australia, Department of Defence/ADF
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Freedom of the Seas? Early Australian attitudes towards maritime belligerent rights Dr Richard Dunley
In 1915 Bernhard Wise, a former Attorney General of New South Wales, wrote an article entitled ‘The Freedom of the Seas’. In it he mounted a robust defence of the ability of belligerents to exercise power at sea. Wise argued that:
In times of peace, it is substantially true that all commerce and travel are lawful: and, therefore, the free movement of passengers and goods should not be interfered with. But this is not the rule in times of war; because the practice and consent of all civilized nations give a belligerent certain clearly defined rights to interfere with the commerce and travel of neutrals.1
This article was an early expression of Australian views on maritime belligerent rights. This topic had been the subject of considerable discussion at international conferences prior to the First World War, but whilst the Dominion governments had been consulted, there was little real Australian engagement. The debate over the ‘Freedom of the Seas’ which raged from the beginning of 1915 until mid-1919 thus offers a very early example of direct Australian engagement in issues of international law and the laws of war at sea. Exploring this small and virtually entirely forgotten debate thus sheds some interesting light on shifting Australian interests and even senses of identity in the maritime domain.
Bernhard Wise’s article was written in response to growing American calls for a concept they referred to as ‘Freedom of the Seas’. Although rarely fully defined, this term usually referred to claims for limiting the rights of belligerents to interfere with trade outside of a narrowly defined concept of contraband.2 This use of the term originated in German American peace discussions in early 1915. The calls for ‘Freedom of the Seas’ were popularised by Colonel Edward House, the special advisor to the American President, Woodrow Wilson, who argued that this should be the key concession given by the Allies in peace negotiations.3 The American proposals caused considerable concern and debate in London. The suggestions would clearly curtail Britain’s ability to exert power at sea, but the British Foreign 23 Australian Naval Review 2019 Dr Richard Dunley
Secretary, Sir Edward Grey, felt uneasy about the effect of disregarding an American peace proposal. In the end the British came up with a fudge, suggesting that whilst ‘we are not opposed in principle to the idea of freedom of the seas’ they felt that the practical elements posed real problems.4 This did not stop continued American pressure for the adoption of some form of these proposals, not least because they would enable the United States to continue a very profitable trade with Germany, which had been curtailed by British sea power.
This leaves open the question – what did this have to do with Australia? At the beginning of his piece Wise sought to explain why he was qualified to discuss the matter. ‘Australians’, he exclaimed, ‘whose island continent depends for all except bare subsistence upon the safety of ocean communications, naturally take a special interest’ in the subject. Thus, his argument went, when even he suggested that ‘war, ipso facto, limits the rights of neutrals to an unrestricted use of ocean highways’, this should be taken seriously.5 After all, a country like Australia had more to lose than most. He was, in fact, being less than entirely honest. The article was written at the behest of the British propaganda bureau, Wellington House, and was specifically designed to take advantage of perceived ties of allegiance between Americans and Australians.6 In American eyes Britain had a long history of abusing its position as hegemon at sea, invariably to the detriment of American interests. This had found new expression in the concept of ‘British navalism’ which was regularly discussed in American newspapers as a counterpoint to Prussian militarism. As such Wellington House thought that an Australian voice would be better received.
The arguments Wise made were, however, widely reflective of the views expressed in the Australian press at the time. The Australasian, as one example, noted that American calls for freedom of the seas amounted to the ‘voluntary relinquishment by Great Britain of the advantage enjoyed by the strongest naval power in wartime’.7 From a modern perspective this seems a little perverse. As Wise pointed out Australia was (and remains) a very large island, absolutely dependent on maritime trade. Furthermore, its ability to exert independent naval power was limited. As such few states would benefit more from restrictions on belligerent rights at sea. From the perspective of contemporaries, however, the reasons for this stance were obvious. They were not merely Australians, but also Britons, part
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Freedom of the Seas? of the broad British imperial project and existing under the solid shield of British naval supremacy. The Tasmanian based Daily Telegraph condemned the scheme under the title ‘The Freedom of the Seas and Our Naval Power’ – there was no distinction made between purely Australian, and broader British naval might.8 Australians viewed the issue of maritime belligerent rights from a British imperial, rather than an Australian perspective, and so came to very different conclusions from those which might otherwise have been reached.
In 1915 the arguments made by Wise and others gained limited traction with the American audience, however German actions at sea, most notably unrestricted submarine warfare, meant limited pressure was applied. The issue of ‘Freedom of the Seas’ did not go away and returned to the centre of attention when Woodrow Wilson released his Fourteen Points. The second point on his list called for:
… absolute freedom of navigation upon the seas, outside territorial waters, alike in peace and in war, except as the seas may be closed in whole or in part by international action for the enforcement of international covenants.9
The declaration caused some concern in Britain when it was first announced in January 1918, but these were seen as simply American war aims at a time when the end of the conflict still seemed remote.10 This changed dramatically in October when it became clear that Wilson’s Fourteen Points would form the basis of the initial peace discussions, and the British were worried that the terms would be taken as being representative of all the Allied and Associated powers. The issue which was of primary concern to the British government was point two, regarding ‘Freedom of the Seas’.11 One of the most forceful voices in opposing any acceptance of American terms was the Australian Prime Minister, William ‘Billy’ Hughes. As Hughes reported back to Melbourne in mid-October:
I had a conference with several Ministers [of the] French War Cabinet, as well as with Clemenceau, and discussed Wilson’s fourteen points. They think as I do. I strongly urged them to let the voice of France be heard. The people of Britain and France are very determined that the fruits of victory shall not be taken from them by trickery. 25 Australian Naval Review 2019 Dr Richard Dunley
He declared that point two, would ‘wholly disappear or be so changed that no one will know’.12 Hughes’ influence was, however, limited. Much to his frustration he was not present when representatives of the British, French and Italian governments met with Colonel House to discuss the armistice and its relation to peace terms. The British Prime Minister, David Lloyd-George, made it very clear to House that he ‘could not accept this clause [Freedom of the Seas] under any conditions’ and went so far as to suggest that Britain would ‘be prepared to go on fighting’ if the Americans made ‘a separate peace’ on these grounds.13 Lloyd- George would later apologise to Hughes that it had not been possible to involve the Dominion leaders in these discussions, but emphasised that ‘the two points of the so-called Freedom of the Seas and Reparations were specifically raised in order to safeguard issues which might conceivably be prejudiced by President Wilson’s terms’.14
The peace terms which were discussed as part of the armistice made specific mention of British reservations with regard to Wilson’s point around Freedom of the Seas, but this clearly did not mean that the issue would simply disappear. At an Imperial War Cabinet meeting on 20 November 1918 the Canadian Prime Minister, Sir Robert Borden, emphasised that this would be a major point of contention with the Americans, and further research was ordered from the naval and legal perspectives.15 Within the small Australian delegation in London the issue was picked up by John Latham. Latham was a lawyer with a temporary commission in the Royal Australian Navy, who was serving as advisor to the Minister for the Navy, Sir Joseph Cook. He produced a closely worded memorandum outlining the potential issues of adopting any such policy of ‘Freedom of the Seas’ from the perspective of the leading naval power. Latham declared that had such a policy been adopted in the war ‘[i]nsistent pressure on enemy commerce would have been impossible. Naval power would have been rendered largely useless.’16 He went on to discuss how the clause related to Wilson’s grand vision of a League of Nations policing international disputes and using sea power as a tool in this. He concluded that whilst giving up key maritime belligerent rights was a small sacrifice, if the League was effective it would ‘deprive Britain of her principal means of defence and offence’ if it were not. ‘One of the greatest lessons of the war is the demonstration it has given of the nature and effectiveness of sea-power and our
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Freedom of the Seas? sea-power should not be compromised without most adequate and indubitably satisfactory guarantees.’17
It is not clear whether Latham’s memorandum was ever directly used by the Australians in the discussions over freedom of the seas, but it did form the basis of an article written by his boss, Sir Joseph Cook. The piece, published in the Pall Mall Gazette made the same argument as that set out by Latham, but did so in a very different way. Cook emphasised the imperial aspects of the issue, opening by declaring that ‘[o]urs is a maritime empire and the oceans are our highways. By them we live, move and have our being as a British Commonwealth of Nations’. He also, slightly disingenuously, asked why ‘the whole question of national naval power is to be challenged in a manner which is apparently not to be contemplated in respect to land power or air power.’ He concluded by declaring that ‘[s]urely the lesson to be learnt from the services rendered by the Navies in the war, will save the Allies from consenting to bring their victory to a conclusion so impotent and so disastrous’.18 Cook’s intervention was clearly aimed at the British public, as opposed to policy makers, and was picked up by the Australian press.19 He was adding weight and a Dominion perspective to an already strong domestic British reaction to the proposed ‘Freedom of the Seas’.20 This response meant that the issue was not properly discussed at the Paris Peace Conference, with a face-saving caveat that it would be returned to by the League once it was properly established. The Australian attitudes to the whole debate were summed up by Hughes in a speech in summer 1919. He declared that ‘I do not doubt that the League, after careful prolonged deliberation, will act, but will it come to Australia’s aid with the same swiftness as the British navy? The first warning of the next war will be the roar of cannon. The British navy has been our sure shield during the past five years, and the Empire will not abandon the navy for the aid of that other thing that has yet to win its spurs’.21
Within Australia these views were widely accepted, not only among the political leaders and newspaper editors, but also within the nascent community of international lawyers. As has been mentioned John Latham, who would go on to become the Attorney-General and Chief Justice, was a leading figure in building the Australian argument on the issue.22 Back in Melbourne the hugely influential figure of William Harrison Moore, Professor of Law, wrote a pamphlet making similar
27 Australian Naval Review 2019 Dr Richard Dunley arguments to those put forward by Latham and Cook. Moore, in fact, went further in highlighting what he saw as the unique British interest in the subject.
Great as are the interests of other nations in the navigation of the sea, the interest of the British Commonwealth is unique; and the open sea and the need for naval supremacy to secure it, have generally been recognised in the international sphere as a vital British interest.23
Moore attacked both the legal and broader political aspects of the American Freedom of the Seas contentions and argued that the nature of modern war rendered the distinctions which underpinned them obsolete.
The debate over the American calls for freedom of the seas offer the first clear example of Australian engagement in issues of maritime belligerent rights. In keeping with a much broader trend Australia, and the government of Billy Hughes in particular, demanded that its voice be heard on this issue of imperial military and diplomatic importance. This approach was, of course, symbolised by the Australian representation in the Imperial War Cabinet and at the Paris Peace Conference. Arguably, however, the message regarding freedom of the seas being pushed by Hughes, Latham, Cook and others was not an Australian one, but one rooted in a Greater British sense of identity and interests.
This process of Australia slowly developing its own unique interests and expressing these at international gatherings regarding maritime international law and laws of war continued in fits and starts. Due to American pressure the country had only limited representation at the Washington Naval Conference in 1922, however Senator George Pearce did his best to promote Australian interests. He proved reasonably successful with regard to fortified naval bases in the Pacific, but his attempt to limit the size and operational radius of submarines proved ill-fated.24 The remainder of the twentieth century has seen remarkably little in the way of serious attempts to define maritime belligerent rights, perhaps a result of the failures of previous efforts.25 It is worth noting that it appears the views of leading Australian lawyers on the crucial issue of blockade had changed little by the time of the outbreak of the Second World War. A H Charter has presented a standard
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Freedom of the Seas?
British interpretation of the law and the events of the First World War in his ‘Notes on International Law’ in 1940; perhaps unsurprising considering his personal involvement in the running of the blockade.26 Instead, international attention has focused on the law of the sea, where over the course of the three United Nations Conferences on the Law of the Sea, Australian leaders and their delegates worked to develop and further an increasingly identifiably Australian position.27 The extent to which Australia has developed a similar attitude in regard to belligerent rights has not been tested at a major international conference, but appears increasingly relevant in the contested waters of the Indo-Pacific.
Dr Richard Dunley
Richard Dunley is a Lecturer in History at UNSW Canberra. His research interests cover British military and naval and diplomatic history in the nineteenth and twentieth centuries. He has published a number of articles with a particular focus on the Royal Navy, and his new book Britain and the Mine, 1900-1815: Culture, Strategy and International Law is out with Palgrave Macmillan.
1 B Wise, Freedom of the Seas, Darling & Son, London, 1915, p. 2. 2 National Library of Australia [NLA], Latham Papers, MS 1009, Series 21, File 53, ‘Foreign Office Handbook 147, Freedom of the Seas’, p. 1 - ‘Of the many meanings of the vague phrase “Freedom of the Seas” the most important in the present connection is that in which the term is used to indicate, in the user’s opinion, the open seas should be as free and safe for merchant shipping in time of war as in time of peace’. 29 Australian Naval Review 2019 Dr Richard Dunley
3 Yale University Library, House Diaries, 26 April 1915, Series II, Vol. 3, p. 110. 4 The National Archives, London [TNA], FO 800/95/22, ‘Freedom of the Seas’, 11 June 1915. 5 B Wise, Freedom of the Seas, Darling & Son, London, 1915, p. 2-3. 6 Imperial War Museum, London, LBY 80/311, ‘Schedule of Wellington House Literature’. 7 The Australasian, ‘Comments on the War’, 17 July 1915, pp. 36-7. 8 The Daily Telegraph (Launceston, Tas), ‘The Freedom of the Seas and Our Naval Power’, 18 June 1915, p. 4. 9 ‘Woodrow Wilson’s Fourteen Points’, Avalon Project, (http://avalon.law.yale.edu/20th_century/wilson14.asp), Accessed 4 April 2019. 10 UK Hansard, ‘Allied War Aims’, 3 Feb 1918, especially COL Godfrey Collins speech, vol. 103, col. 206. 11 TNA, CAB 23/8/6, War Cabinet, Meeting 485, 14 October 1918. 12 NLA, Hughes Papers, MS 1538, Series 23, Box 117, Item 227, Hughes to Cabinet, 11 October 1918. 13 NLA, Hughes Papers, MS 1538, Series 23, Box 117, Item 334-6, ‘Notes of a Conversation’, 29 October 1918. 14 NLA, Hughes Papers, MS 1538, Series 23, Box 117, Item, 245-8, Lloyd-George to Hughes, 11 November 1918. 15 TNA, CAB 23/42/8, Imperial War Cabinet, Meeting 37, 20 November 1918. 16 National Archives of Australia [NAA], A981, WAR P 25, ‘Notes on Freedom of the Seas’, 28 November 1918. 17 NAA, A981, WAR P 25, ‘Notes on Freedom of the Seas’, 28 November 1918. 18 NAA, A981, WAR P 25, ‘Freedom of the Seas: article by Sir J Cook’, 22 January 1919. 19 Sydney Morning Herald, ‘Freedom of the Seas’, 7 February 1919, p. 7. 20 See the British Admiralty response - NAA, A5954, 1737/5, ‘Freedom of the Seas’, 21 December 1918. 21 NLA, Hughes Papers, MS 1538, Series 24, Box 123, Item 1013, ‘Extract from Sydney Morning Herald 22nd June 1919’. 22 ‘John Greig Latham’, Australian Dictionary of Biography, http://adb.anu.edu.au/biography/latham-sir-john-greig-7104 , Accessed 25 April 2019. 23 W Harrison Moore, The Freedom of the Seas, Meville & Murray, Melbourne, 1918. 24 NAA, A2219, External Relations Vol. 22, ‘Conference on the Limitation of Arms: Report of the Australian Delegate’ & Pearce undated typescript report to Hughes. Also see John Connor, ANZAC and Empire: George Foster Pearce and the Foundations of Australian Defence, (Melbourne: CUP, 2011), pp. 139-141; Robert Thornton (1978) ‘The semblance of security: Australia and the Washington conference, 1921–22’, Australian Journal of International Affairs, vol. 32, no. 1, pp. 65- 83. 25 Louise Doswald-Beck, ‘San Remo Manual on International Law Applicable to Armed Conflict at Sea: Background - Development of the San Remo Manual and its intended purpose - Content of the San Remo Manual’, International Committee of the Red Cross, https://www.icrc.org/en/doc/resources/documents/article/other/57jmst.htm, Accessed 5 April 2019; Phillip Drew, Law of Maritime Blockade: Past, Present, and Future, OUP, Oxford, 2018, Introduction & Chapter 5. 26 AH Charteris, ‘Notes on International Law’, I & II, The Australian Law Journal, vol. 14, Nos. 1 & 2, 1940. 27 Anthony Bergin, Australia and the Third United Nations Conference on the Law of the Sea, Australian National University, unpublished PhD thesis, 1990.
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Dr Norman Friedman Submarines’ Future – Some Possible Pointers Dr Norman Friedman
Submarines are valuable because they are nearly invisible. The great questions have always been how to use that invisibility and how to preserve it. For example, the strategic submarines of the 1960s combined a new use for invisibility (the stable deterrent) with a new means of preserving invisibility (nuclear power). Where do recent developments point? Much depends on the role of the submarine. For example, there is a considerable difference between a submarine deployed primarily to attack enemy ships or other submarines, and a submarine used mainly to scout invisibly, for example to collect enemy message traffic. The same submarine may have both roles, but one is likely to be primary. Historically, Australian submarines have been most valuable in the reconnaissance role. That comes to the fore in times of tension, which are much more frequent than actual warfare. In the post-1945 wars in which Australia has participated, the ability of a submarine to undertake reconnaissance and insertion of special forces have been important. No hostile ships have been sunk.
Submarine reconnaissance demands larger rather than smaller submarines – with more, rather than less, electrical power. Size matters because the submarine must accommodate whatever equipment and personnel are needed to process the information the ship collects. Processing usually means computers and workstations, which draw power. The special forces mission also suggests a need for greater internal volume, since the submarine must accommodate not only the personnel but also their boats. She may well also have to accommodate a venue for mission planning, which may change depending on what the submarine observes as she prepares to launch the mission. During World War II and the Korean War, standard attack submarines conducted both useful reconnaissance and useful force insertion, but more recent practice certainly suggests that more submarine is better than less.
Size is also important for endurance. A small submarine may well have long nominal endurance, in terms of fuel on board. However, the smaller the submarine the worse the habitability, which impacts on the crew’s endurance. Nuclear submarines
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Submarines’ Future – Some Possible Pointers offer the best habitability, hence the longest effective endurance. Again, it is 33 certainly true that small submarines have managed to remain at sea for remarkably long periods. The great examples are probably German U-boats operating in the Indian Ocean during World War II. Yet it is not at all clear that their crews retained real efficiency over long periods. The pre-war Royal Navy considered some form of air conditioning vital for submarines intended for the Far East, and in wartime it ensured extra air conditioning was installed in submarines assigned to the Far East (the British did, however, consider provision of ice cream machines on board US submarines excessive).
What is the likeliest future submarine mission?
The only warships sunk by submarines since 1945 have been the Argentine cruiser Belgrano, the Indian frigate Khukri, and the Korean corvette Chon An. The Argentines tried and failed to torpedo the British carriers operating in the South Atlantic during the Falklands War. Against the rarity of actual sinkings, it can be argued that a viable threat of attack can be valuable, as it can force a prospective enemy to spend heavily on anti-submarine measures. China, in particular, now claims that it depends heavily on seaborne merchant traffic. If the Chinese Navy (People’s Liberation Army Navy) has to provide a credible defence against modern submarines, it may find itself devoting resources to that role which the Chinese government might prefer to use for other naval missions, such as facing down the Taiwanese or projecting power. It seems likely that several South Asian regional powers have drawn this conclusion, and that it has justified their acquisition of modern submarines: at the least, Malaysia, Singapore, and Vietnam. Thailand is buying Chinese submarines, and Japan, South Korea, India, Taiwan, and Indonesia have had submarine forces for a long time. Taiwan is attempting to modernise (and considerably expand) its submarine force. These submarines are justified mainly as anti-ship and anti-submarine weapons.
All of these submarines are armed primarily with torpedoes, but they may also carry anti-ship missiles. Missiles considerably enlarge the area within which a submarine can attack a surface ship. Whether that is worthwhile to the submarine depends first on whether the submarine can detect and identify its target. Modern towed arrays seem to offer the necessary reach and identification, particularly if they are supplemented by the submarine’s own passive electronic intercepts, or by some 33 Australian Naval Review 2019 Dr Norman Friedman external means of detection, such as shore or air-based radio direction-finding or air reconnaissance. The other question is whether the visible signature created as the missile emerges from the water represents an undue danger to the attacking submarine. This danger of course declines the greater the range from which the missile is fired. The more the submarine can depend on external targeting support, the greater the effective range of her weapon. In addition, a missile threat adds considerably to the burden on any surface escort, hence drives up its price and cuts into resources available for other naval purposes. In general, anti-aircraft systems cost considerably more than anti-submarine ones. The missile pops up suddenly and (from the point of view of the target) unpredictably, since typically the surface ship’s sonar range is considerably shorter than missile range. A missile flying at high subsonic speed covers 10 nm in a minute: the ship enjoys very little warning. Many current escorts carry last-ditch anti-aircraft weapons, but to be an effective escort a surface ship would need something more, which would protect the ships it was escorting. The Chinese already have a subsonic submarine-launched missile, and so do several of their potential regional enemies: Australia, Japan, and South Korea have the US Sub-Harpoon (Korea also has a locally-produced alternative); India and Malaysia have the French sub-Exocet, India has and Vietnam either has or is about to receive the Russian 3M54 Klub; and there are probably others. The US Navy abandoned Sub-Harpoon, as its submariners much preferred torpedoes, but it seems almost certain that the US Navy will once again adopt a submarine-launched anti-ship missile. A key factor for the US Navy was that the identity of a distant target was so uncertain. The situation is likely to be very different in a world of widespread ocean surveillance.
There is also the strategic role. The only current exemplars in Asia are China and India, the Indian missile having much shorter range. North Korea has a test submarine with a single missile tube; the extent of the follow-on program is uncertain, as is the projected range of the missile. South Korea has displayed a model of a submarine armed with vertical missile launchers as well as torpedo tubes. The vertical tubes are for a cruise missile described as equivalent to the US Tomahawk (however, there is no announced South Korean nuclear program to provide a warhead). The current Australian submarine program has been justified in part as a national deterrent, the submarines being armed with some type of cruise missile. The long-range missile role imposes some significant conditions on 34 Australian Naval Review 2019
Submarines’ Future – Some Possible Pointers a submarine. First, she has to know where she is when she fires. The missile may 35 use some form of Global Positioning System (GPS) to gain precision, and that in turn may make up for some inaccuracy in initial positioning. On the other hand, GPS and similar signals may be jammable, particularly near the intended target.
In submarine design, the most striking recent development has been the rise of Air- Independent Propulsion (AIP). AIP applies to non-nuclear submarines. It offers increased underwater endurance, generally at low speed: the submarine can loiter for days or weeks without running her diesel engine to recharge her batteries. The AIP powerplant is generally much quieter than the diesel, so in theory it offers the submarine greater invisibility in a combat area. At least at present, no version of AIP offers enough power to drive a submarine at high speed. In theory, then, AIP allows a submarine to lurk off an enemy coast, saving her battery for a quick escape after announcing her presence by carrying out an attack. AIP generally raises the cost and complexity of the submarine, the latter of some significance for a small submarine force. AIP plants generally depend on an oxidizer the submarine would not need without them, which cannot be replenished until the submarine returns to port. Thus, an AIP submarine generally has a mission profile in which she uses a conventional power plant to reach a patrol area, patrols on AIP power, does something which reveals her presence, and then escapes using conventional propulsion.
It seems reasonable to ask whether sustained quiet endurance at low speed while submerged is worth the expense and complexity. That may be the case if the target can listen effectively for the submarine. That is hardly the case in much of Asia. Even the proclaimed Chinese ‘underwater great wall’ seems to employ lines of upward- looking passive sonars which almost certainly depend not on the noise produced by submarine machinery but rather on the noise produced by the flow of water over the submarine as it moves. Moreover, the sensors form a relatively shallow line in the water; they are unlikely to hear much once a submarine passes over the acoustic fence they represent. This is not the long-range system the US Navy and NATO employed during the Cold War, looking out across the Atlantic and Pacific. Such a system may be impossible to implement in shallow East Asian waters. The US Navy abandoned its long-range system as the Soviets silenced their nuclear submarines. Diesel-electric submarines are generally considered inherently quieter than their nuclear cousins. Flow noise, which has nothing to do with the type of 35 Australian Naval Review 2019 Dr Norman Friedman power plant, seems to be the main means of detecting them. It is the alternative to the signatures used extensively during the Cold War, because it seems to be impossible to eliminate.
There is a further irony. AIP systems were first developed by Germany and Sweden because both assumed that the Baltic, where they operated, would be covered by comprehensive Soviet passive sonar systems broadly equivalent to the US passive Sound Surveillance System (SOSUS) system. When the Cold War ended, the Soviet sonar developers published a detailed account of what they had been doing. It turned out that they had concentrated on a long-range active sonar. Such a system does not depend on the noise the submarine produces. It may be frustrated by special coverings, but AIP is irrelevant. It does not appear that any other country is currently offering a long-range passive system. Something may change in the future, but US Cold War experience shows that long range is expensive, and that performance can be ruined by the wrong sort of bottom topography and also by local acoustic conditions.
So, what is the point of silencing? It is usually tactical. Anything that brings a submarine near enemy anti-submarine forces exposes her to acoustic detection. Without long-range sensing, that will happen when the submarine approaches some sort of target – a ship, perhaps, or a surveillance target. In that case the enemy may well be using passive sonars, such as towed arrays. The quieter the submarine, the better the chance that she can slip by, or attack successfully. A quieter submarine may also be better placed if she has to employ a decoy. That might be something she launches, or it might be a noise-maker intended to blur the submarine’s identity. None of this matters, of course, if detection is entirely by some form of active sonar. In that case the only physical countermeasures are coatings and mobile decoys which repeat sonar pulses.
Japan has chosen an alternative to AIP, which may be attractive to others: a lithium- ion battery in place of the usual lead-acid type. Lithium offers considerably greater energy density than lead-acid. It may offer endurance similar to that given by an AIP engine, with the added considerable advantage that the battery can be recharged without returning to port. Against that, lithium batteries have sometimes
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Submarines’ Future – Some Possible Pointers been considered a fire risk. It may be argued that this sort of risk is comparable to 37 the accident risk associated with a small crew operating an additional power plant. These are all current programs, not dependent on exotic new technology.
Three current developments seem particularly significant for the near term: the rise of Unmanned Underwater Vehicles (UUV) which the submarine can launch; the rise of electro-optics, particularly in periscopes or periscope replacements; and the rise of high-capacity submarine satellite communications.
Unmanned vehicles promise to extend the reach of a submarine and of its onboard sensors. If deployed in any significant number from a submarine, they can also enlarge the submarine’s footprint. Some years ago, the US Navy Underwater Systems Center (NUSC) in New London showed what this might mean. It envisaged a fast, unmanned underwater vehicle it called ‘Manta’, based on its shape. Manta could be armed with torpedoes, and it could communicate with its mother submarine over several miles. NUSC New London produced a movie in which a submarine was watching a port with several entrances. By launching several Mantas it could watch all of them. Although in theory, Artificial Intelligence (AI) might enable each Manta to decide whether a ship it detected leaving port should be attacked, there is a strong bias in favour of human choice when it comes to attacking. Hence the key role of the underwater link between each Manta and the controlling submarine. The only real barrier to building a deployable Manta was the lack of a suitable power source. That gap still exists, but it seems arguable that under some circumstances a low-performance Manta-like device is currently viable and can currently be built.
UUVs themselves are clearly quite viable, and even single ones can be worthwhile. For example, a submarine acting as precursor to a surface force can covertly explore an operating area to determine whether particular areas may be mined. For the US Navy, for example, minefield reconnaissance was the first major proposed submarine UUV role. A torpedo-sized UUV was designed, built, and tested. The fatal problem was that the UUV and its recovery device took up both torpedo tubes on one side of the submarine. The UUV was launched and recovered via the upper tube, but it took the lower tube to accommodate the necessary recovery mechanism. The UUV had to come into the submarine so that it could be serviced, its battery recharged, and its data recovered. How important the latter function is 37 Australian Naval Review 2019 Dr Norman Friedman depends on how well a UUV can transmit data without ever coming on board. The current US submarine UUV program employs relatively small expendable devices, which can be launched from a dry-deck shelter abaft the submarine’s sail. Whether it uses a large or small UUV, the submarine must process what is collected so that it can be sent back and used. Particularly in mine reconnaissance, it matters that the submarine and the UUV know their positions.
UUVs may also be important in another key submarine role, collecting electronic intelligence. Currently that requires the submarine to come relatively close to a target coast. In that position, it can monitor signals over a limited area. Even then the submarine has an important advantage. All other means of collecting such information are more or less visible: specialised aircraft and satellites with regular (and knowable) orbital patterns. A sophisticated target knows enough to shut down communications when necessary. A submarine appears on its own schedule, and it is relatively difficult to detect. Against this possibility, it can be argued that the submarine represents a substantial risk of detection and even destruction. It would be better if the submarine could collect its information remotely. Some years ago, the US firm EDO, which produced intercept systems, displayed a mocked-up UUV carrying the relevant antennas. It was probably already possible to build a real UUV of this type, and it is certainly easier to do so right now – and it will probably become easier in the future. Again, the electronic intelligence role requires the submarine to process what it collects, to reduce it to what can safely be transmitted back to distant users.
Submarines have also experimented with Unmanned Air Vehicles (UAVs). Submarines have always suffered from their limited field of vision: typically even a surfaced submarine cannot see more than about ten miles. To some extent submarine sonars considerably extend that range, but they seem irrelevant unless the submarine is seen mainly as an anti-ship weapon. A UAV can conduct overland reconnaissance, and in that mission it can back up whatever the submarine collects using her electronic sensors. A substantial submarine UAV might transport micro- UAVs inland, orbiting to collect their information and relaying it back to the submarine. As in the case of UUVs, because a submarine operating offshore may be effectively invisible, it can launch a small UAV without much danger of alerting the target. At the other end of the scale, a submarine-launched UAV might confirm the 38 Australian Naval Review 2019
Submarines’ Future – Some Possible Pointers nature of a target before a submarine fired a medium-range missile at it. There is a 39 precedent: during World War II many German U-Boats carried helicopter kites for exactly this sort of reconnaissance.
Against the vast potential of unmanned vehicles, the invention of electro-optical periscopes may seem quite minor. However, such sensors can have two important impacts on submarine operations. First, they change the relationship between the periscope and the submarine command. In the past, only the submarine’s Commanding Officer or Executive Officer saw the image produced by the periscope. For safety, the observer had to sweep the horizon very rapidly and then withdraw the tell-tale periscope mast. Everything depended on the observer’s ability to create a tactical picture in his mind, based on what he glimpsed. The glimpse had to be fast enough that enemy ships did not spot the feather produced by the periscope, or at least did not see it for long enough to work out the submarine’s course and speed. Periscopes also helped shape submarine command spaces. Perhaps most importantly, the submarine’s two main sensors, her sonars and her periscopes, could not easily be used in conjunction.
The image captured by an electro-optical periscope head is fed into the submarine command system. How long the head stays above water depends on light conditions and has nothing to do with how the image is processed and used. In many current submarines, imagery from the periscope is fed into the submarine command system, and can be processed alongside sonar data. Like a passive sonar, the electro-optical periscope typically indicates the bearing of whatever it sees. The collected image can, for example, be used to identify a target otherwise detectable only by its sound.
Submarines increasingly operate in littoral waters abounding in shipping and in small naval craft. If they are to operate successfully, their command systems must disentangle extremely complex tactical pictures – in which case the ability to spend time looking at the image of a nearby ship or craft is quite valuable. That is without the help potentially available from image-recognition software.
The adoption of electro-optics in the US Virginia class, and likely in other current submarines, has had an additional benefit. There is no longer a direct connection between periscope masts and the command centre of the submarine. In the past, 39 Australian Naval Review 2019 Dr Norman Friedman the command was built around the eyepieces of the periscopes. For example, in US nuclear submarines the eyepieces of the two periscopes are usable from what amounts to a bridge overlooking the rest of the command space, in which the tactical picture is assembled: the submarine operates based on the tactical picture. In the Virginia class, because there is no longer a need for a periscope eyepiece in the command centre, the centre has been moved down a deck to a wider part of the hull. The periscope image is displayed on screens which also show sonar data; the combination is used systematically to build a tactical picture.
There is no question but that submarines, particularly those operating in littoral water, need the optical side of the picture, to understand the environment around them. However, if the image produced by the optics no longer needs to be displayed at an eyepiece directly under the optics, perhaps the above-water optical sensor – the part of a periscope which in the past often betrayed a submarine – need not be directly over the submarine. It may be possible to place the optics in a float some distance from the submarine, controlled, perhaps, via a fibre-optic cable. The body carrying the optics can also, of course, accommodate electronic sensors. In that case, the submarine may no longer need a sail, with important implications for underwater manoeuvring and resistance. There may still be a need for a bridge for use when on the surface entering or leaving port, and submarines will still need snorkels. There is some question as to whether a submarine needs a sail and planes on it to operate near the surface, for example for reconnaissance. Sails create resistance and cost speed, and when a submarine turns they cause snap-roll. The interaction between the vertical and horizontal surfaces of the submarine and the propeller can create tell-tale vibration (blade rate), although modern skewed propellers and pump-jets minimise that problem.
High-capacity satellite communications can change the way submarines operate. It is not that radio links to submarines are something entirely new; it is the capacity of the links. In the past, a submarine on a reconnaissance mission could pass back a few urgent items – say, that she had just seen the Japanese battle fleet go by, or that a key island seemed to be undefended. However, the bulk of whatever the submarine collected was not available until she returned to base. That applied, for example, to photographs. On this basis a submarine could have explored a potential combat area looking for possible minefields, but whatever she collected would not 40 Australian Naval Review 2019
Submarines’ Future – Some Possible Pointers have been available for some time. This was extremely unfortunate if the main role 41 of the submarine was reconnaissance for fleet support – and if the support was tactical rather than strategic.
The situation was inverted when submarines were armed with long-range missiles. It was one thing to pre-plan strategic strikes. In that case, the submarine had the target data on board. The only message needed was a simple code authorising firing and, perhaps, selecting one target option. The situation changed, at least for the US Navy, when submarines were armed with Tomahawk cruise missiles. During the 1991 Iraq War, the missiles were aimed at places in Iraq which had never previously been on any target list. Submarines had to be given details of missile flight paths.
In much the same way, to target the anti-ship version of the missile required detailed information. In this case those on board a submarine assigned to fire at a group of ships needed to know not only where the target was, but what other ships were nearby. That connected the submarine with the naval intelligence system conducting what amounted to ocean surveillance. Eventually the long-range anti- ship missile system was abandoned, because the information available was not precise enough. For example, it seemed inevitable that missiles would hit neutral merchant ships (it could still be argued that missiles would arrive as surprise attacks, disorienting an enemy).
In both cases, information flow to and from the submarine could be streamlined, but it must have been clear by the late 1990s that submarine radio capacity was grossly inadequate. The smaller the capacity, the longer the submarine had to show an antenna to receive what she needed. Any such exposure was potentially dangerous.
What could be done? In about 2000, a US submarine development group offered a solution which indicated how difficult the problem was. It envisaged a submarine operating near a hostile coast. It would be dangerous for the submarine to transmit via an onboard satellite antenna, so the group imagined placing the antenna on a buoy well offshore. The question was then how to connect the submarine to it. The solution offered at the time was to lay a network of fibre-optic cables on the seabed, with transponders where the lines of cables crossed. The submarine would link to the transponders, for example using the reliable acoustic path (the vertical 41 Australian Naval Review 2019 Dr Norman Friedman path, which is not subject to distortion by acoustic layers in the sea). Alternatively, it might use a blue-green laser, which can penetrate hundreds of metres of sea water. In either case, the mesh would transmit back and forth to the buoy offshore. No such scheme ever seems to have been realised.
Instead, US submarines were provided with small satellite dishes connecting them to Extremely High Frequency (EHF) communication satellites. The higher the frequency of the radio the satellite uses, the greater the information capacity of the link – which means the shorter the time the submarine needs to send a given amount of information. Like the underwater mesh, this solution has its limits. If the submarine has to operate in an area of intense surveillance, any exposure is dangerous. However, the EHF connection can change the way submarines operate, by connecting them to the larger US naval system. That connection in turn raises important possibilities, such as reviving the use of long-range submarine-launched anti-ship missiles.
The high-capacity antenna was a great step towards integrating submarines with surface forces, but it was not quite enough. The ideal is for a submarine to be able to receive messages at any time, just as a surface ship does, and similarly to transmit whenever she wants to. That would solve the greatest problem of submarine cooperation with surface forces, identification (IFF). It seems possible that the current acoustic submarine communication system already provides a degree of covert identification, but probably not at very great range. It is most unlikely that the ideal can be realised as long as submarines remain covert. At present the best that can be done is for the submarine to put up a dish periodically, and for her to listen for simple acoustic signals (often called bell-ringing) summoning her when a message is urgent but out of the usual communication periods.
Of these developments, both the electro-optical periscope and the satellite dish are relatively easy to implement on board existing submarines, although their internal arrangements are already fixed. The next step, a semi-independent floating body carrying periscope head and antenna, has not yet been taken, but seems inevitable. Submarines already use floating antennas, which are not too great a step away. High-capacity down-links can provide a submarine with an effective picture of 42 Australian Naval Review 2019
Submarines’ Future – Some Possible Pointers surface activity, and as such may be a prerequisite for close cooperation between 43 a submarine and a surface force. The US Navy tried to achieve that sort of cooperation by providing submarines with a form of Link 11 and its standard command system (Naval Tactical Data System, or NTDS), but that never worked very well. This operation, incidentally, employed a towed radio antenna, which might be considered the distant predecessor of the floating periscope/radio antenna posited here.
The most radical change may come from unmanned vehicles. Submarines may evolve from the current lone wolves into centres controlling unmanned vehicles roaming over a wide area. In theory, the submarine at the centre of the cloud of unmanned vehicles would form a tactical picture based on what they see, and in turn could act on that basis. That might mean, for example, that a submarine would use her UUVs to explore a possibly mined area, then send out others to find the mines and destroy them. The entire operation would be largely covert, hence would not alert whoever had laid the mines that a fleet was about to turn up in their midst. On the same basis, the submarine might be able to attack enemy surface ships far enough from her position that she would be safe from retaliation – and over a wide area.
43 Australian Naval Review 2019 Dr Norman Friedman Dr Norman Friedman
Dr Norman Friedman has had a long career in weapon and system analysis for the US Navy, US Department of Defense and for major defense contractors. He has written numerous acclaimed histories of naval weapons and platforms (both aircraft and ships) which concentrate on the connection between policy, strategy, and technology. He has lectured extensively and has published over forty books in all, in addition to serving for a decade as personal consultant to the Secretary of the Navy. Dr Friedman spent over a decade at a prominent think tank, rising to be its Deputy Director for National Security Affairs. His work has ranged from examining the future of naval warfare to work on the policy side of ballistic missile defence. He was assigned to the Marine Corps Headquarters as a futurologist, a position which helped him understand the intricacies of urban warfare, and lectured on network centric warfare at US Navy development labs.
Dr Friedman received a PhD. in solid-state theoretical physics from Columbia University before joining the think tank and concentrating on naval and other national security issues. He has lectured at the US, Australian, British, and Canadian war colleges and for some years was a navy-sponsored lecturer on network-centric warfare at US Navy laboratories and technical field activities. Dr Friedman’s history of the Cold War, The Fifty-Year War, won the Westminster Medal awarded by the Royal United Services Institute as the best military history of its year; to date he is the only non-British author so honoured.
44 Australian Naval Review 2019
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Providing certainty at sea: clarifying the rights of warships in relation to innocent passage and military operations in the Exclusive Economic Zone Lieutenant Simon Lindsay, RAN
Introduction
The United Nations Convention on the Law of the Sea,1 following a Conference spanning 585 sitting days between 1973 and 1982,2 has since entering into force, enjoyed the broad acceptance of the international community3 with 157 signatories and 168 parties to date.4 The result of the ‘largest single international negotiating product undertaken, before or since’,5 the Convention has ‘been hailed as the most comprehensive treaty ever negotiated on the world’s oceans’,6 addressing virtually every human use of the oceans.7 However, as with all multilateral agreements, it reflects compromises inherent in obtaining such broad agreement, and contains a ‘certain quality of constructive ambiguity’8 leaving areas open to more than one interpretation;9 in particular, military uses of the sea—often considered a ‘neglected issue’ during the Conference.10
This lack of clarity is not accidental; Conference records indicate a motivation of the major maritime powers was to protect the broadest possible freedom to conduct maritime military operations,11 and as such, they used a variety of methods to ensure that negotiation of rules of military operations were excluded or defeated; often by trading security concerns off against the resource interests of coastal States.12 The result is differing views among States regarding the applicability of the Convention to military operations at sea; in particular the right of innocent passage of warships—one of the most debated issues in the law of the sea,13 and the conduct of military operations (particularly those involving use of weapons) in a foreign coastal State’s Exclusive Economic Zone (EEZ) without authorisation.14
These are not simply theoretical issues between competing academics; they continue to be a flashpoint today—particularly in the South China Sea, where China continues to build and expand structures and artificial islands on disputed reefs and rocks, adding 290,000 square metres of facilities in 2017.15 Leaving aside the
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Providing Certainty at Sea disputed issue of the status of these structures and the maritime zones that they 47 generate,16 China’s differing views regarding military operations in these zones and the operation of other militaries in the region continue to cause tension. In November 2017, Chinese People’s Liberation Army Navy Commander Shen Jinlong formally rebuked his Australian counterpart, Chief of Navy Vice Admiral Tim Barrett, in a meeting in Beijing in part response to the participation of six Royal Australian Navy ships and 1,200 Australian Defence Force personnel in the Indo-Pacific Endeavour multilateral military exercises in the South China Sea and East China Sea between September and November 2017;17 exercises that this article considers were fully compliant with Australia’s rights and obligations under the Convention.
The issue of the status of these artificial islands and their relevant maritime zones has been considered elsewhere,18 and will not be developed further. Instead, this article aims to provide clarification on these issues to assist military operators, policy makers, and academics in understanding the relevant rights and obligations of warships in relation to innocent passage and military operations within a foreign coastal state’s EEZ, and will include an examination of their development within the Convention, differences in interpretation, and a comparison of the differing State views and practices. While this article concludes what it considers to be the correct interpretation of the Convention in relation to these issues, it nevertheless suggests a possible pragmatic approach to dealing with other States who adopt a contrary view in certain situations, although not at the expense of maintaining Australia’s current position.
Innocent Passage of Warships in the Territorial Sea
The right of warships to conduct innocent passage within the territorial sea of a foreign State has been one of the most controversial issues in the law of the sea, and remains a sensitive and politically-charged issue.19 There is tension between maritime powers seeking to maximise their freedom of navigation, while some coastal States seek to impose a requirement for warships to seek prior authorisation or notification prior to undertaking innocent passage ostensibly to protect themselves from foreign threats.20 The lack of any ‘general practice’ with regard to warships means there is no customary international law, and the Convention is ambiguous in this regard.21
47 Australian Naval Review 2019 Lieutenant Simon Lindsay Competing Interpretations
Section 3 of the Convention establishes the regime of innocent passage in the territorial sea. However, there are no express provisions regarding the right of innocent passage of warships,22 or their requiring prior authorisation/notification.23 This lack of clear articulation has led to three competing interpretations;24 namely: (1) a warship’s right of innocent passage is established by the Convention; (2) the coastal State’s rights to make requirements is established by the Convention; and (3) there is no agreement, the Convention’s travaux préparatoires show a failure to reach a compromise, and therefore the position is governed only by customary law,25 which shows while the right of merchant ships to innocent passage is well accepted,26 there is divergence in State practice regarding warships.27
States preferring interpretation (1) argue warships are entitled to innocent passage pursuant to Articles 17–21, with no other restrictions placed on them, on the basis that the Convention text does not authorise any such restrictions. This is further supported by the fact that innocent passage is a rule that is ‘Applicable to All Ships’, and that specific provision was made with regard to submarines and non- compliance by warships; had the Convention intended any further restrictions they would have been explicitly specified.28 Any such attempt to impose additional requirements would undermine this right contrary to Articles 309–10, as these restrictions would have to come from either reservations or exceptions to the Convention or from declarations and statements that modify the effect of the relevant provisions of the Convention, both of which are prohibited.29
In contrast, States preferring interpretation (2) state that authorisation/notification systems predate, and in any event are not expressly prohibited by, the Convention.30 Such systems do not prevent warships from undertaking innocent passage but simply require them to comply with a coastal State’s requirements in order to do so;31 purportedly pursuant to Article 21.32
Although interpretations (1) and (2) are generally considered mutually exclusive, the number of States requiring authorisation/notification suggests a fourth interpretation is developing—prior authorisation/notification does not contradict the doctrine of innocent passage of warships; rather the two concepts are
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Providing Certainty at Sea complementary.33 Essentially just a more nuanced version of interpretation (2), it 49 is still opposed by the maritime powers.
Corfu Channel Case34
There is very little case law on this issue; with the exception of the Corfu Channel Case.35 Referred to as ‘the most authoritative judicial statement on the definition of innocent passage’,36 it was influential in the development of the law of the sea during the Conferences.37 Commentators and States have used it as authority for warships’ freedom of navigation with no right of coastal States to subject them to prior authorisation or notification.38
However, while the Corfu Channel Case clearly enunciates the ‘general and well- recognised principle’ of freedom of navigation for warships,39 this related specifically to transit passage in international straits; the court did not comment on the territorial sea in a general sense (that is, not within an international strait).40 As such, although this judgment provides great assistance in relation to navigation in international straits, care should be taken in using this case in support of warships’ rights of innocent passage; in this regard the case should be distinguished.
Development of the Convention
As the Convention was developed, there has never been a codified authorisation/notification requirement. Although a number of attempts were made prior to and during the Third Conference, none were successful, thus the Convention contains no provisions expressly allowing or denying warships a right of innocent passage or allowing authorisation/notification.41
The balance of rights ultimately agreed in the Convention cannot be evaluated in isolation from the existing international balance of power during the Conference.42 The major maritime powers aimed to ensure the Convention remained flexible enough to allow them wide discretion in military use of the sea, whereas coastal States tried to limit this capacity through the imposition of authorisation/ notification requirements within their territorial seas.43
Unsuccessful attempts at inserting an authorisation/notification clause were attempted during the Hague Conference for the Codification of International Law in 1930 and at the First Conference in 1958.44 49 Australian Naval Review 2019 Lieutenant Simon Lindsay The debate continued during the Third Conference, with an authorisation/notification amendment introduced by a bloc of 28 States.45 The Conference debates show that 46 countries supported the amendment, 30 opposed it, and the remaining countries did not indicate their attitudes.46 At the urging of the Conference President, Ambassador TTB Koh of Singapore, the sponsoring countries did not press for a vote, relying on his official statement on 26 April 1982 that in not pressing the vote they did not impede their right to take measures to ensure their security interests pursuant to Articles 19 and 25.47 Although a number of States have relied on this statement to justify authorisation/notification regimes,48 Ambassador Koh, on 30 October 1982, stated, ‘the Convention is quite clear on this point. Warships do, like other ships, have a right of innocent passage through the territorial sea, and there is no need for warships to acquire the prior consent or even notification of the coastal State’.49 Despite the clarity of this statement, State practices indicate this issue remains unresolved.
Differing State Practices
Despite reservations not being permitted to the Convention, the Article 310 declarations of some States are suggestive of reservations.50 Around 40 States now seek to impose authorisation/notification restrictions on foreign warships,51 due to concern for safeguarding their national security.52 Those States requiring authorisation include: Algeria, Antigua and Barbuda, Bangladesh, Barbados, Burma, Cambodia, Cape Verde, China, Congo, Grenada, Iran, Maldives, Oman, Pakistan, The Philippines, Romania, St Vincent and the Grenadines, Seychelles, Somalia, Sri Lanka, Sudan, Syria, UAE, Vietnam and Yemen. Those States requiring notification only include: Croatia, Egypt, Finland, Guyana, Indonesia, India, Libya, Malta, Mauritius, Montenegro, Serbia, South Korea and Vietnam.53
In contrast, the general view of many Western States is that ‘innocent passage of warships is an undoubted right, and is not dependent upon the provision of prior notification or the obtaining of prior permission’.54 Demonstrably, Argentina, Netherlands and Chile have declared the Convention permits warships’ innocent passage through the territorial sea; Italy and Germany declared the Convention does not permit authorisation/notification requirements; and the US, USSR and UK declared warships enjoy the right of innocent passage through the territorial sea 50 Australian Naval Review 2019
Providing Certainty at Sea without prior notification or permission.55 Australia shares this latter view, though 51 without express declaration or legislation.56
Position
It is clear that no consensus has been reached regarding warships’ rights in the territorial sea, with the international community remaining divided on the correct interpretation of the Convention.57 However, notwithstanding the competing approaches raised above, this article considers that the correct interpretation is that, under the Convention, warships enjoy the right of innocent passage through the territorial sea without prior notification or permission. The Convention’s travaux préparatoires demonstrates that the attempts to insert such requirements into the Convention failed; therefore, not only are there no explicit clauses detailing these restrictions, the fact that a number of States tried to have them inserted in the first place supports the conclusion that the existing text does not support such restrictions. The argument that Article 21 provides support for such an interpretation is extremely weak, as it is difficult to see how a warships’ innocent passage would impact any of the listed relevant factors in this Article in comparison to a merchant vessel. The only realistic interpretation is that, in relation to warships, such restrictions do not apply.
Military Operations in the EEZ
With claims covering around 36 percent of the world’s oceans,58 the emergence of the EEZ is perhaps the most significant recent development in the law of the sea.59 Established under Article 56,60 with Article 58 outlining the rights and duties of foreign States,61 the EEZ is a zone of balanced rights and responsibilities between coastal and maritime States,62 and an increasing arena for military activities.63 Maritime operations in the EEZ were a divisive issue during the Third Conference, with coastal States seeking more comprehensive rights over their EEZs while maritime powers sought to maximise the traditional freedom of the high seas.64 There is no settled State practice,65 and an increasing number of coastal States require authorisation for foreign military operations in their EEZ.66 Unfortunately, with little guidance in the Convention (prior authorisation is not expressly prohibited),67 and little judicial guidance,68 the question as to whether maritime States can conduct military operations in the EEZ without coastal State permission remains ambiguous and unsettled.69 51 Australian Naval Review 2019 Lieutenant Simon Lindsay Development of the Convention
The genesis of the EEZ began in 1945 with the President of the United States Harry S Truman’s Presidential Proclamations No. 2667 and 2668 (known collectively as the ‘Truman Proclamation’)70 by which the United States declared their control over the natural resources of the subsoil and sea bed of the continental shelf and the coastal fisheries contiguous to their coasts. It then developed further in 1952 with Chile, Ecuador and Peru making a ‘Declaration on the maritime zone’ in Santiago (known as the ‘Santiago Declaration’)71 whereby, in order to preserve the natural resources of their adjacent maritime zones, they declared sovereignty out to a distance of 200 nm (though this was without prejudice to innocent passage). Next, in 1970, a number of Latin American States agreed to the Montevideo Convention on the Law of the Sea72 and the Declaration of Latin American States on the Law of the Sea (known as the ‘Lima Declaration’)73 which allowed coastal states to establish then limits of maritime jurisdiction that each considered necessary in order to achieve the preservation of their respective maritime environments. However, these declarations and agreements occurred without States reaching a unified position.74 Finally, in 1972, Kenya, on behalf of a regional group of Asian and African States, in a working paper on ‘The Exclusive Economic Zone Concept’,75 proposed coastal State jurisdiction and sovereign rights over the living and non- living resources in and under the sea out to 200 nm without unduly hampering other legitimate uses of the sea.76 The debate centred on the legal status of the zone,77 with many States expressing strong opposition to military operations in the zone due to the inherent threat they posed to the coastal States.78 In 1978, Brazil and Peru attempted to insert a clause prohibiting military operations within the EEZ without coastal State consent,79 however this was opposed by the maritime superpowers who sought to ensure the new regime would not inhibit their ability to conduct unrestricted military operations.80 With more than one thousand formal and informal amendments proposed over the course of the negotiations,81 the concept solidified into the EEZ; a sui generis zone whereby the coastal State has ‘sovereign rights’ over the exploration, exploitation and conservation of marine resources but no sovereignty over the sea itself.82 However, as a result of the efforts of the maritime superpowers, the Convention does not clearly state whether a State may or may not conduct military operations in the EEZ of a foreign State.83
52 Australian Naval Review 2019
Providing Certainty at Sea Interpreting the Convention 53 Ambassador Koh stated in 1984 while the Convention does not clearly state whether a third States may or may not conduct military activities in the EEZ of a coastal State, the general understanding was the text permitted such activities.84 Given the ocean coverage of EEZs, it is inconceivable the major maritime powers would have allowed the Convention to reach any other position.85 However, this does not mean States have unrestricted freedom to conduct military operations in the EEZ. Noting coastal States’ sovereign rights over their resources,86 it is therefore reasonable to expect any military operations will not interfere with those resources.87 Therefore, under the Convention, warships enjoy freedom to conduct military operations in the EEZ provided they: (1) refrain from unlawful threats or use of force; (2) exercise due regard for the rights of other nations to use the sea; (3) exercise due regard for the rights of the coastal State in the EEZ; and (4) observe the rules of international law.88
A number of States have tried to argue the phrases ‘due regard’, ‘peaceful purposes’, and ‘rights and duties of Coastal State’ in Articles 56, 58, and 301 allow them to regulate military operations.89 However, military operations generally are not considered an activity ‘exercised without due regard to the interests of other States’, even if they cause a temporary exclusion of a part of the sea, such as for weapons practice.90 It is only cases where such operations are in fact prejudicial to the coastal State’s resources that they would not be permitted.91
Differing State Practices
A number of States contend in their Article 310 declarations that foreign military operations within their EEZ require authorisation, including: Bangladesh, Brazil, Cape Verde, China, India, Iran, Malaysia, Pakistan, and Uruguay.92 States claiming jurisdiction over security in the EEZ include: Burma, Cambodia, Haiti, Sri Lanka, Vietnam, and Yemen.93 However, while Brazil and India have made isolated diplomatic protests over military operations in their EEZs, only China responds regularly with force both operationally and scholastically. 94
The contrary position has been declared by States including: Germany, Italy, the Netherlands, and the UK, while the US remains adamant military operations are permitted without consent.95 Australia’s position, though again without express
53 Australian Naval Review 2019 Lieutenant Simon Lindsay declaration or legislation, is that the Convention does not permit coastal States to limit military operations in the EEZ, and such operations can be freely carried out provided they do not adversely impact the coastal State’s sovereign rights; a consideration made on a case by case basis.96
The US continues to operationally and diplomatically protest any restrictions on military operations in the EEZ, which has led to a number of incidents.97 Notable examples include the protests by China and India against USNS Bowditch in the Yellow Sea in 2001 and 2002 and India’s EEZ in 2002 and 2003 respectively, the intercept of a USAF RC-135S Cobra Bell reconnaissance aircraft by four North Korean fighter jets 150 miles from the North Korean coast in 2001, the clash of the USN’s EP-3 and a Chinese fighter jet off Hainan Island in 2001, and harassments by Chinese vessels and aircraft of USNS Victorious in the Yellow Sea and USNS Impeccable in China’s EEZ off Hainan Island in 2009.98
Position
There is no practical reason why economic and military activities in the EEZ cannot peacefully coexist;99 however this issue is likely to remain unsettled, with potential for continued misunderstanding, disagreement and confrontation virtually inevitable.100 While this issue is not limited to one single geographic region, the South China Sea remains one of the more prominent areas in which it will play out.101 Western navies (in particular) who continue to undertake Freedom of Navigation Operations (FONOPS) within the region, as China continues to harden its position in relation to maritime claims while explicitly seeking to increase its soft power influence,102 should actively ensure that two separate issues are not conflated; namely the rights of warships to conduct military operations in the EEZ, and the disputed maritime claims in this region. Continued participation in multi- lateral exercises in this region, such as Indo-Pacific Endeavour, will increase the potential for further confrontation over this issue. As such, it is imperative that warships operating in this area of heightened tensions fully understand their rights and obligations under the Convention in this regard. This article considers that the correct interpretation is that, under the Convention, warships enjoy the freedom to conduct military exercises in a coastal State’s EEZ, subject of course to those States ensuring due regard to the interests of other States, refrain from the unlawful use of force or threats against other States, and observe the rules of international law. 54 Australian Naval Review 2019
Providing Certainty at Sea In the absence of any explicit restrictions, which were rejected, these safeguards 55 are considered to be sufficient to ensure that any military activity that complies with them in the EEZ will be able to do so free from interference.
A Pragmatic Approach to Bridge the Gap
Notwithstanding the concluded position of this article in relation to these two issues (which is consistent with Australia’s maintained position), the practical reality is far from settled. Resolution of these matters will not be quick—State practice remains divided and no authoritative legal rulings can be made without a dispute being brought before the International Court of Justice or International Tribunal for the Law of the Sea.103 In the meantime however, further bi- and multi- lateral dialogues and agreements,104 and a continuation of States providing low- level, informal and unofficial prior notification of relevant warship activities (without admission of legal obligation) to those coastal States seeking it may be the pragmatic solution for maintaining relations and easing tensions between States.105 The greatest challenge to this strategy, however, would be to ensure that such moves do not provide tacit support for the claims and declarations of those coastal States who seek to limit the freedoms of warships under the Convention, or inadvertent support for particular States in relation to disputed maritime claims.
This is not to suggest that FONOPS, and similar activities, should not continue to be pursued; on the contrary, physical assertion of rights under the Convention will, and should, remain a valid response to States seeking to impose alternative interpretations on their international obligations. However, particularly in the current global geo-political environment, co-operation and de-escalation should be guiding principles, as encouraged by the Convention.106 The political nature of these issues means that they will likely remain enduring for the foreseeable future, and any approach that can assist in building foundations for future agreement without inflaming tensions further should be encouraged. States should follow a case by case strategy to determine the appropriate time for overt physical demonstrations to assert their position and the time for unofficial pragmatic actions to defuse tensions and maintain positive relations; the differing natures and cultures of the States involved ensures that there can be no ‘one size fits all’ approach.
55 Australian Naval Review 2019 Lieutenant Simon Lindsay Conclusion
Despite this suggestion for a pragmatic approach to deal with individual States, this article considers that there is no doubt that warships enjoy freedom of navigation in the territorial sea and the freedom to conduct military exercises in the EEZ without prior notice or authorisation, consistent with Australia’s position, and it concludes that Australia should continue to maintain this position in its conduct of maritime operations.
Lieutenant Simon Lindsay, RAN
Lieutenant Simon Lindsay, RAN is a Navy Legal Officer and former Maritime Warfare Officer. He has served in HMA Ships Brisbane, Warrnambool, Ballarat, Arunta and Anzac, as well as at Fleet Headquarters and Headquarters Joint Operations Command, and has also practiced commercial and international human rights law in London, United Kingdom during a period of Reserve service. He holds a Bachelor of Arts (Economics), Master of Arts (International Relations) and Juris Doctor (1st Class Honours and Valedictorian) (UNSW), Graduate Diploma of Legal Practice (College of Law), and a Graduate Certificate of Military Law (ANU). He is currently posted as a Military Prosecutor at the Office of the Director of Military Prosecutions.
Disclaimer: The views expressed in this paper are the author’s, and do not necessarily reflect the views of the Department of Defence or the Australian Government more broadly. Any errors or omissions are the responsibility of the author alone. 56 Australian Naval Review 2019
Providing Certainty at Sea 57 1 Opened for signature 10 December 1982, UNTS 1833 (entered into force 16 November 1994) (the ‘Convention’). References to Articles or Sections are from the Convention unless otherwise stated. 2 Thomas Windsor, ‘Innocent Passage of Warships in East Asian Territorial Seas’, Australian Journal of Maritime and Ocean Affairs, Vol. 3, No. 1, 2011, p. 73. 3 Jing Geng, ‘The Legality of Foreign Military Activities in the Exclusive Economic Zone under UNCLOS’, Merkourios – International and European Security Law, Vol. 28, No. 74, 2012, p. 23. 4 United Nations Treaty Collection, Chapter XXI Law of the Sea, 3 March 2018, available at
57 Australian Naval Review 2019 Lieutenant Simon Lindsay
16 This issue was the subject of an award by an arbitral tribunal in 2016: In the matter of an arbitration before an arbitral tribunal constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea (Republic of the Philippines v People’s Republic of China), Permanent Court of Arbitration (PCA) Case No. 2013-19, Award on Jurisdiction and Admissibility, 29 October 2015; In the matter of an arbitration before an arbitral tribunal constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea (Republic of the Philippines v People’s Republic of China), PCA Case No. 2013-19, Award, 12 July 2016. 17 See for example, Primrose Riordan, ‘China scolds Australian navy chief amid fears tensions could worsen’, The Australian, 16 December 2017, available at
Providing Certainty at Sea 59 28 George Galdorisi, ‘An Operational Perspective on the Law of the Sea’, Ocean Development and International Law, Vol. 29, No. 1, 1998, p. 77; Donald R Rothwell and Tim Stephens, The International Law of the Sea, Hart Publishing, 2010, p. 268; Ballester, above n 13, pp. 93, 95 117. 29 Ballester, above n 13, p. 117–18. 30 Jianwen, above n 9, p. 306. 31 Ibid, pp. 307–8; Shichen, above n 23, p. 360. 32 Stephens, above n 6, p. 306. 33 Windsor, above n 2, p. 78; Shichen, above n 23, p. 360. 34 Case Concerning Corfu Channel (United Kingdom v Albania) [1949] ICJ Rep 4. 35 Keyuan, ‘Innocent Passage’, above n 22, p. 207; Windsor, above n 2, p. 77. 36 Stephens, above n 6, p. 306. 37 Geng, above n 3, p. 26; Rothwell and Stephens, above n 28, pp. 267–8. 38 Windsor, above n 2, p. 75; Schachte, Jr, above n 27, p. 183; Rothwell and Stephens, above n 28, pp. 267–8. 39 Geng, above n 3, p. 26. 40 Moore, above n 18, p. 134; Keyuan, ‘Innocent Passage’, above n 22, p. 208; Wood, above n 23, p. 21; Jin, above n 25, p. 65. 41 Keyuan, ‘Law of the Sea’, above n 19, pp. 70–1; Oxman, above n 11, p. 854. 42 Pirtle, above n 12, p. 9. 43 Ballester, above n 13, p. 87. 44 Windsor, above n 2, p. 74; Jianwen, above n 9, p. 284; Wood, above n 23, p. 20. 45 Windsor, above n 2, p. 75; Jianwen, above n 9, p. 286. 46 Jianwen, above n 9, p. 287. 47 Ibid; Oxman, above n 11, p. 854; Windsor, above n 2, p. 75; Burke and DeLeo, above n 7, pp. 398–9. 48 Jianwen, above n 9, p. 287. 49 Oxman, above n 11, p. 854 (n 159). 50 Wilson and Kraska, above n 8, p. 284; Ballester, above n 13, pp. 95–6. 51 Barbara Kwiatkowska, ‘Innocent Passage by Warships: A Reply to Professor Juda’, Ocean Development and International Law, Vol. 21, No. 4, 1990, p. 447; Ballester, above n 13, pp. 95–6, 103–5; Keyuan, ‘Law of the Sea’, above n 19, p. 70; Keyuan, ‘Innocent Passage’, above n 22, p. 206; Jianwen, above n 9, pp. 290–303; Windsor, above n 2, p. 76; Jin, above n 25, p. 65. 52 Ballester, above n 13, pp. 98–100. 53 Windsor, above n 2, pp. 76–7; Jianwen, above n 9, pp. 290–303; Ballester, above n 13, pp. 104– 5. 54 Stephens, above n 6, p. 306. 59 Australian Naval Review 2019 Lieutenant Simon Lindsay
55 Jianwen, above n 9, pp. 297–303. 56 Windsor, above n 2, p. 76; Royal Australian Navy, Australian Maritime Operations, 2017, p. 68: ‘Although [the Convention] does not require prior notification for the entry of warships into the territorial sea, there remains a long-standing debate as to whether a coastal state can require prior notification or authorisation as a prerequisite for the enjoyment of innocent passage by warships of a foreign state. Importantly, there is nothing in [the Convention] that would require such a prior notification and Australia does not recognise the requirement’. 57 Jianwen, above n 9, p. 303. 58 Brian Wilson, ‘An Avoidable Maritime Conflict: Disputes Regarding Military Activities in the Exclusive Economic Zone’, Journal of Maritime Law & Commerce, Vol. 41, No. 3, 2010, p. 421; Galdorisi and Kaufman, above n 5, p. 254. 59 Boleslaw Adam Boczek, ‘Peacetime Military Activities in the Exclusive Economic Zone of Third Countries’, Ocean Development and International Law, Vol. 19, No. 6, 1988, p. 445. 60 Geng, above n 3, p. 24. 61 Ibid, p. 25. 62 Lewis M Alexander, ‘Uncertainties in the Aftermath of UNCLOS III: The Case for Navigational Freedoms’ (1987) 18 Ocean Development and International Law 333, Vol. 18, No. 3, 1987, p. 337; Galdorisi and Kaufman, above n 5, pp. 254, 257. 63 Boczek, ‘Military Activities’, above n 59, p. 459. 64 Geng, above n 3, pp. 24, 29; Boczek, ‘Peacetime Purposes’, above n 10, p. 372. 65 Boczek, ‘Military Activities’, above n 59, p. 446; Galdorisi and Kaufman, above n 5, pp. 275–6, 285–6. 66 Alexander, above n 62, p. 336; Galdorisi and Kaufman, above n 5, pp. 285–6. 67 Geng, above n 3, p. 25; Rothwell and Stephens, above n 28, p. 280; Galdorisi and Kaufman, above n 5, p. 280; Alexander, above n 62, p. 336. 68 Galdorisi and Kaufman, above n 5, p. 285. 69 Zou Keyuan, ‘Navigation in the South China Sea: Why Still an Issue?’, The International Journal of Marine and Coastal Law, Vol. 32, No. 2, 2017, pp. 253–5; Geng, above n 3, pp. 25–6, 29; Kim, above n 14, p. 258; Rothwell and Stephens, above n 28, p. 280. 70 Presidential Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea-Bed of the Continental Shelf, 10 Fed Reg 12303 (28 September 1945) (President Harry STruman); Presidential Proclamation No. 2668, Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas, 10 Fed Reg 12304 (Sept 28, 1945) (President Harry S Truman). 71 Declaration on the Maritime Zone, adopted by Chile, Ecuador and Peru at the First Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific on 18 August 1952. 72 Montevideo Declaration on the Law of the Sea, adopted on May 8, 1970 at the Montevideo Meeting on the Law of the Sea. 60 Australian Naval Review 2019
Providing Certainty at Sea 61 73 Declaration of the Latin American States on the Law of the Sea, adopted on 8 August 1970 at the Latin American Meeting on Aspects of the Law of the Sea. 74 Galdorisi and Kaufman, above n 5, pp. 258–62. 75 Report of the Thirteenth Session of the Asian-African Consultative Committee, Lagos, 18–25 January 1972. 76 Ibid, p. 263; Geng, above n 3, p. 24. 77 John C Meyer, ‘The Impact of the Exclusive Economic Zone on Naval Operations’, Naval Law Review, Vol. 40, 1992, p. 241. 78 Jon M Van Dyke, ‘Military Ships and Planes Operating in the Exclusive Economic Zone of Another Country’, Marine Policy, Vol. 28, No. 1, 2004, p. 31; Kim, above n 14, p. 259. 79 Stephen Rose, ‘Naval Activity in the Exclusive Economic Zone—Troubled Waters Ahead?’, Ocean Development and International Law, Vol. 21, No. 2, 1990, p. 127; Boczek, ‘Military Activities’, above n 59, p. 451. 80 Galdorisi and Kaufman, above n 5, p. 271; Hayashi, ‘Key Terms’, above n 11, p. 125. 81 Wilson, above n 58, p. 423. 82 Galdorisi and Kaufman, above n 5, p. 270. 83 Kim, above n 14, p. 259. 84 Van Dyke, above n 78, p. 31. 85 Paul (Pete) Pedrozo, ‘Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone’, Chinese Journal of International Law, Vol. 9, No. 1, 2010, p. 29; Boczek, ‘Military Activities’, above n 59, p. 458. 86 Pedrozo, above n 85, p. 11. 87 Ibid; Van Dyke, above n 78, pp. 36, 38; Kim, above n 14, pp. 260–1. 88 Oxman, above n 11, pp. 837–8; Meyer, above n 77, pp. 245–6; Kim, above n 14, pp. 260–1; Boczek, ‘Peacetime Purposes’, above n 10, p. 372; Hayashi, ‘Key Terms’, above n 11, p. 124. 89 Wilson, above n 58, p. 430. 90 Boczek, ‘Peacetime Purposes’, above n 10, p. 367; Geng, above n 3, p. 27; Van Dyke, above n 78, p. 35. 91 Kim, above n 14, pp. 260–1; Van Dyke, above n 78, p. 35. 92 John R Crook, ‘Contemporary Practice of the United States’, American Journal of International Law, Vol. 105, No. 1, 2011, pp. 135–6; Moritaka Hayashi, ‘Military Activities in the Exclusive Economic Zones of Foreign Coastal States’, International Journal of Marine and Coastal Law, Vol. 27, No. 4, 2012, pp. 796, 800; Geng, above n 3, pp. 23, 25; Keyuan, ‘Law of the Sea’ above n 19, p. 76; Boczek, ‘Military Activities’, above n 59, p. 456; Meyer, above n 77, p. 248; Van Dyke, above n 78, pp. 29–30; Keyuan, ‘Navigation’, above n 69, pp. 255–6. 93 Meyer, above n 77, p. 248. 94 Hayashi, ‘Military Activities’, above n 92, p. 796; Pedrozo, above n 85, pp. 13, 27.
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95 Hayashi, ‘Military Activities’, above n 92, p. 800; Pedrozo, above n 85, p. 12; Geng, above n 3, p. 26. 96 Michelle Miller, ‘The impact on the Law of the Sea Convention on the roles and activities of the RAN in meeting Australian Government requirements’, Australian Defence College: Geddes Papers, 2005, p. 53; Ivan Shearer, ‘The United Nations Convention on the Law of the Sea: strategic and military implications for Australia—Blamey Oration address to the United Services Institute of the ACT, 5 April 1995’, Journal of the Royal United Services Institute of Australia, Vol 16, No. 1, 1995, p. 56. Note further that Australian Maritime Operations states ‘Despite declarations by some countries that seek to limit such military operations, in the EEZ, [the Convention] allows maritime forces to operate with few, if any, constraints. However, states exercising their rights or conducting military activities in another state’s EEZ shall have due regard to the interests of the coastal state’: Royal Australian Navy, above n 56, p. 72. 97 Wilson, above n 58, p. 428; Pedrozo, above n 85, p. 12; Hayashi, ‘Military Activities’, above n 92, p. 795. 98 Hayashi, ‘Military Activities’, above n 92, pp. 795–6. 99 Rose, above n 79, p. 129. 100 Galdorisi and Kaufman, above n 5, p. 295; Geng, above n 3, pp. 26, 30; Boczek, ‘Peacetime Purposes’, above n 10, p. 379. 101 Keyuan, ‘Navigation’, above n 69, p. 244. 102 See, eg, Lim Kheng Swe, Ju Hailong and Li Mingjiang, ‘China’s Revisionist Aspirations in Southeast Asia and the Curse of the South China Sea Disputes’, China: An International Journal, Vol. 15, No. 1, 2017. 103 Kim, above n 14, p. 259. 104 Galdorisi and Kaufman, above n 5, p. 296; Geng, above n 3, pp. 29–30. 105 Windsor, above n 2, p. 80; Ballester, above n 13, p. 106; Kwiatkowska, above n 51, p. 447. 106 Anderson, above n 18, p. 331.
62 Australian Naval Review 2019
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J3401 - CEA ANI ad_176x250mm_PRESS.indd 1 7/5/19 11:06 am Dr Thomas G. Mahnken A Strategy of Maritime Pressure Dr Thomas G. Mahnken
Recent policy documents such as the 2017 National Security Strategy and 2018 National Defense Strategy have been forthright in discussing the multi-dimensional challenge posed by China as well as the need for the US to compete with China in multiple spheres of statecraft and diverse geographic settings over the long term. Largely absent from these documents as well as broader policy debates, however, is a discussion of what concerns us about China’s rise and the objectives we hope to achieve in that competition. Such a discussion is the necessary predicate for the development of an effective strategy.
What Concerns Us About China’s Rise?
Four aspects of the rise of China stand out as being of particular concern to the US and its allies.1 If these features were to change, all else being equal, the US would be much less apt to view China as a competitor.
The first has to do with the Chinese Communist Party (CCP) leadership’s increasing attention to external affairs. It is axiomatic that any country’s political leaders pay greater attention to domestic matters than to international affairs, and that is certainly true regarding the CCP leadership, which is highly attentive to threats to domestic stability. Nevertheless, in recent years China has become increasingly active on the international stage. China has not only exerted its weight in its neighborhood but also has increasingly done so in areas far removed from the Asian continent, to include Africa and the Persian Gulf. This international activism, to include not only economic investment and attempts to increase political influence, but also increasingly military deployments, raises concerns in the US and among America’s allies.
The second aspect of China’s rise that raises concern has to do with China’s geopolitical orientation. Whereas the People’s Liberation Army (PLA) was long focused on the Asian continent, in recent decades it has increasingly adopted a maritime orientation. It is thus the build-up of the PLA Navy (PLAN) and PLA Air Force (PLAAF), as well as other anti-access/area denial (or, in Chinese parlance, counter-intervention) capabilities, such as Beijing’s missile and anti-satellite
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A Strategy of Maritime Pressure 65 weapons, and not Chinese military spending in the abstract, which has stimulated 65 a US and allied response. Similarly, China’s efforts to claim sovereignty over the South China Sea and East China Sea and attempts to coerce or invade Taiwan would bring China into conflict with the US and its allies.
The third area of concern, related to the previous two, involves China’s attitude toward the international status quo: China’s leadership has increasingly challenged the status quo, whether rhetorically or, increasingly, through action. Nothing illustrates this attitude more tangibly and dramatically than China’s campaign of building and then militarizing new land features in the South China Sea as a means of bolstering Beijing’s claim of ownership.
A final area of concern has to do with China’s domestic political system. However loudly or quietly the US and its allies seek to promote democracy abroad, China’s authoritarian political system and disregard for human rights and personal freedom are recurring sources of tension with the US, its allies, and others in the region and beyond. Whatever US leaders say, the leadership of the CCP firmly believes that the US is out to overthrow it. Moreover, under Xi Jinping the CCP has set about establishing an authoritarian alternative to the liberal international order.
A strong case can be made that if these features were to change – if China was to become more internally focused, emphasize more the Asian continent over its maritime periphery, become more supportive of the status quo, and more pluralistic – then the US and its allies would be much less concerned about China’s overall rise. Indeed, under these circumstances China would come more to resemble today’s India: a rising power with growing economic strength that is internally focused, continentally oriented, supportive of large parts of the international status quo, and pluralistic (indeed, a robust democracy).
This being the case, we should ask whether it is feasible for the US and its allies to influence these aspects of China’s behavior, and if so how. As we will argue below, a strategy of maritime pressure could contribute to achieving at least two of these aims; namely, those related to China’s maritime orientation and revisionist attitude toward the status quo.
65 Australian Naval Review 2019 Dr Thomas G. Mahnken China’s Counter-Intervention Strategy
China’s leadership has been able to take advantage of a series of favorable asymmetries in pursuit of its aims. First, China’s leadership has been able to exploit a geographic asymmetry: the fact that the territorial objectives of greatest interest to China – Taiwan, the South China Sea, and the East China Sea – are far closer to it than to the US. By contrast, the US faces the ‘tyranny of distance’: the fact that the US has territory, allies, and interests in the Western Pacific, but is separated from them by the expanse of the Pacific Ocean.
Second, the Chinese leadership has been able to exploit a political asymmetry inherent in US alliance relationships. In particular, it has used the growth of Chinese military power in general, and China’s deployment of A2/AD capabilities in particular, to undermine confidence in US security guarantees among America’s allies and partners in the Asia-Pacific region. China has been able to exploit the fact that the US relies upon forward-based assets stationed on allied territory to both deter aggression and reassure allies and friends. A significant portion of its defense investments has been targeted at both raising the cost to US allies and friends of hosting US forces while also undermining their confidence in US security guarantees.
Third, in terms of technology, China has been able to exploit the growth and spread of precision strike systems through the development and deployment of a centralized, land-based reconnaissance-strike system composed of long-range sensors, command and control networks, and precision weapons to hold US and allied air bases, ports, facilities, and personnel at risk. In particular, the PLA has fielded advanced capabilities for wide-area surveillance and targeting, large numbers of ballistic and cruise missiles, integrated air defense system, advanced fighter-bombers, a large submarine force, modern surface combatants, and hardened and protected command and control networks.
Finally, China has developed a counter-intervention doctrine aimed at defeating the US style of power projection, which relies upon fixed forward-based assets and large power projection forces centered on carrier strike groups. The PLA has, figuratively and perhaps literally, studied the US armed forces’ playbook by observing US combat performance from the 1991 Gulf War, studying closely US
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A Strategy of Maritime Pressure 67 exercises and operational deployments, reading US joint doctrine, and conducting 67 no doubt extensive espionage. China’s pursuit of a range of counter-intervention capabilities poses a significant challenge to US interests. Those capabilities constrain US options to project power, thereby undermining US credibility among allies and friends. They impose considerable costs on the US armed forces as they seek to respond. And they give China momentum in the Sino-American competition, forcing the US to develop costly operational and technological countermeasures in response. Any strategy to respond should yield an expanded set of US and allied options while constraining those of China. Those options should impose considerable costs upon China as it responds. And the strategy should give the US momentum in the Sino-American competition, forcing Beijing to respond to allied moves.
Crafting A Response: A Strategy of Maritime Pressure
A US response to China’s anti-access strategy should seek to gain and exploit advantages in the areas of geography, alliances, technology, and doctrine. Such a strategy should seek to use Asia’s strategic geography – in particular, the barrier formed by Japan, Taiwan, and the Philippines – to constrain China’s access to the Western Pacific in time of crisis or war. This could be accomplished by fielding sensor and engagement networks both unilaterally and in cooperation with allies along China’s maritime flanks.
America’s alliances also represent a major source of strength. The US should deepen its interoperability with allies to bolster their capabilities and strengthen their will. The US already shares information with its allies, and the case for increasing that cooperation is strong. The US should also deepen cooperation in the areas of theater strike with key allies.
In terms of technology, the US should both develop and deploy countermeasures to China’s precision strike systems as well as deploy anti-access systems of its own. Counters to precision strike include hardening and dispersal of key facilities, countermeasures to precision navigation and timing, and the development of directed energy weapons to destroy precision weapons. At the same time, the US should deploy a joint and combined anti-access network of its own along the First Island Chain.
67 Australian Naval Review 2019 Dr Thomas G. Mahnken In terms of doctrine, the US should exploit the weaknesses inherent in a centralized approach to warfare, including the need to gather and process large volumes of information. Chinese military doctrine displays a strong belief that strategy is a science rather than an art and maintains great confidence in its ability to predict the outcome of conflicts.2 In order to bolster deterrence, the US and its allies should work to reduce the confidence of the Chinese leadership in its ability to control the course and outcome of a future conflict.
Such a strategy, if implemented consistently over time, holds the promise of influencing Chinese actions at the tactical, operational, and strategic level. Tactically, it would erode the effectiveness of Chinese counter-intervention systems. Operationally, it would deny the PLA leadership the type of war it has been planning for decades, forcing it to either double-down on its investment in anti- access capabilities or seek a new approach. But its greatest promise is likely to be strategic: such an approach holds the potential to alter the decision-making calculus of the leadership of the CCP. A strategy of this type could markedly increase the cost to Beijing of pursuing a strategy of maritime expansion and potentially re- channel Chinese attention away from its maritime flanks and toward the Asian continent. It would increase the cost of challenging international norms and hopefully give the Chinese leadership greater incentive to accept significant elements of the existing international order. In these ways, the strategy would address at least two of the concerns about China’s rise articulated above.
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A Strategy of Maritime Pressure 69
Dr Thomas G. Mahnken 69
Dr Thomas G Mahnken is President and Chief Executive Officer of the Center for Strategic and Budgetary Assessments.
He is a Senior Research Professor at the Philip Merrill Center for Strategic Studies at The Johns Hopkins University’s Paul H Nitze School of Advanced International Studies (SAIS).
He served as a member of the Congressionally-mandated National Defense Strategy Commission and currently serves as a member of the Board of Visitors of Marine Corps University. His previous government career includes service as Deputy Assistant Secretary of Defense for Policy Planning from 2006–2009, where he helped craft the 2006 Quadrennial Defense Review and 2008 National Defense Strategy. He served on the staff of the 2014 National Defense Panel, 2010 Quadrennial Defense Review Independent Panel, and the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction. He served in the Defense Department’s Office of Net Assessment and as a member of the Gulf War Air Power Survey. He completed 24 years as an officer in the US Navy Reserve, which included tours in Iraq and Kosovo.
In 2009 he was awarded the Secretary of Defense Medal for Outstanding Public Service and in 2016 the Department of the Navy Superior Civilian Service Medal.
Thomas Mahnken is the author of multiple titles focusing on international defence development and relations. He completed a Masters and PhD in International Affairs at John Hopkins University. He was also a National Security Fellow of the John M Olin Institute for Strategic Studies.
1 See the discussion in Thomas G Mahnken, ‘The Australia-US Alliance in US Strategic Policy’ in Peter J Dean, Stephan Frühling, and Brendan Taylor, eds., Australia’s American Alliance, Melbourne UP, Melbourne, 2016.
2 Thomas G Mahnken, Secrecy and Strategem: Understanding Chinese Strategic Culture, Lowy Institute, Sydney, 2011.
69 Australian Naval Review 2019 Rear Admiral David Proctor The Royal New Zealand Navy Rear Admiral David Proctor
The Royal New Zealand Navy (RNZN) is partway through a process of renewal and regeneration to ensure it maintains its combat viability through to the middle of the century, and lay the groundwork for the Navy of the late 21st century.
Being au fait with naval matters, the readers of the Review are probably aware of the laundry list of capability upgrades and acquisitions New Zealand is managing: upgrades to the ANZAC frigate combat systems, a new Dive Hydro Vessel, and a new Maritime Sustainment Capability to replace the tanker HMNZS Endeavour. My purpose in this article is to give readers more detail about the upgrades and their impact on the Navy, both in terms of the additional capability they will provide, and how we will manage the challenges of bringing them into service. So, just quickly, the list is:
ANZAC Frigate Systems Upgrade
The combat systems of the frigates HMNZ Te Kaha and Te Mana will be upgraded so they will remain effective and continue to operate to around 2030. The upgrade will enable the ships to counter the combination of an increase in the level and sophistication of threats and obsolescence of some existing systems. The work is being conducted by Lockheed Martin in Canada, with Te Kaha commenced in May 2018, and Te Mana commenced in May 2019. The ships are expected to return to New Zealand in 2020 and 2021 respectively.
Maritime Sustainment Capability
HMNZS Aotearoa is a new maritime sustainment capability to replace the de- commissioned tanker Endeavour. It is not however, a like for like replacement. Aotearoa will be able to sustain maritime, air and land forces with fuel, fresh water, ammunition, equipment and non-perishable stores, and incorporates ice- strengthening and winterisation features enabling her to operate in the Ross Sea
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The Royal New Zealand Navy 71 and Southern Ocean. The ship is being built in Korea by Hyundai Heavy Industries 71 and is expected to be delivered to the RNZN early in 2020.
Dive Hydro Vessel
The commercial vessel MV Edda Fonn has been acquired to replace the dive ship HMNZS Manawanui and survey vessel HMNZS Resolution. The ship has been modified in Denmark and arrived in New Zealand in early May. Renamed HMNZS Manawanui will provide the ability for diving and hydrographic specialists to conduct specialised operations such as surveying of coastlines and harbours, underwater explosive disposal, mine counter measures and underwater search and salvage.
Integrated Defence
Another acquisition project which reflects the integrated nature of the New Zealand Defence Force (NZDF) is the purchase of four Boeing Poseidon P-8A Maritime Patrol Aircraft to replace the 1960s era P3 Orions that New Zealand currently operates. The P8s will be deployed in a range of roles, including search and rescue, supporting global peace and security operations, and environmental and marine resource monitoring. The aircraft, expected to be delivered in 2023, will be a key enabler in joint and combined maritime operations.
Each of these acquisitions in themselves is a significant step forward for New Zealand’s maritime defence system, but they should not be seen as simply replacing like for like or upgrading old equipment.
The ANZAC Frigate upgrade will ensure the ships can defend themselves and other units when part of a coalition, and prosecute air, surface, and subsurface targets. The improved weapons and sensors will be reinforced by information and communications technology initiatives to support their ability to undertake Intelligence, Surveillance and Reconnaissance tasks or Maritime Interdiction Operations.
71 Australian Naval Review 2019 Rear Admiral David Proctor Aotearoa will boast state of the art design features including ice-strengthening and winterisation features which will enable her to go alongside the ice pier in Antarctica. The ship will provide global sustainment to New Zealand and coalition maritime, land and air units through the resupply of fuel, dry goods, water, spare parts or ammunition.
Possible missions include Humanitarian and Disaster Relief (HADR), support to United Nations security operations, support to a coalition Naval Task Group, and Antarctic resupply. She will carry 12 twenty-foot shipping containers, high capacity fresh water generation plants, self-defence systems, aviation and marine fuel cargo tanks, dual all-electric replenishment at sea rigs, one organic SH-2G(NZ) Seasprite or NH90 medium utility helicopter. She will also feature integrated communications and bridge systems, an integrated platform management system, upper deck heating and an ice strengthened hull.
Aotearoa will be a marked increase not just in New Zealand’s replenishment capability, but in the NZDF’s ability to support regional coalition partners, and further demonstrate New Zealand’s long-term commitment to the Antarctic Joint Logistics Pool with the United States.
As noted above, Manawanui replaces two ships – the decommissioned diving tender of the same name, and the survey ship Resolution. The ship will provide a platform for hydrography, diving and surveying. It has been modified for our divers to conduct underwater explosive disposal and salvage. Unlike her predecessor, Manawanui will have a helicopter landing deck and an enclosed moon pool allowing diving and the use of remote underwater vehicles from inside the ship.
The improved lethality of the ANZAC frigates will enable them to play the role in regional and international operations New Zealanders expect of their Navy. The enhanced capability offered by Manawanui and Aotearoa is a significant leap in maritime sustainment and littoral warfare, not just for supporting HADR and Antarctic resupply operations, but contributing to regional task groups far ahead of anything New Zealand has done previously.
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The Royal New Zealand Navy 73
While any Chief of Navy would be happy with the type and level of investment 73 being made in the Navy, it does present some challenges. For one thing, these ships are significantly larger than their predecessors, and in many ways more complex. The graphic below gives an indication – the RNZN will have fewer ships, but a 54 per cent increase in gross tonnage. Aotearoa will be the largest ship the RNZN has ever operated at 173 metres and 26 000 tonnes. We have had to extend the wharf at Devonport Naval Base to accommodate her. Manawanui is nearly twice as long as her predecessor and is 5741 tonnes compared to 900.
Our most immediate challenge is generating the people we will need to crew the ships. While there may be a small reduction in ANZAC crews, Aotearoa and Manawanui will require approximately 80 additional people to operate them. The new ships are significantly different technically from their predecessors and will require a different mix of skills at sea. There will also be an increased financial overhead borne of operating single ships in multiple classes. Additionally, the RNZN will carry the ‘parent navy’ burden for managing the baseline of all of her ships.
The Navy will have to increase its personnel numbers significantly by 2025 to ensure it has the people required for the ships and to support the Fleet from ashore including mission support and logistics personnel. The RNZN has embarked on a surge activity to provide additional resources to the appropriate organisations within the Navy System to stimulate skill generation and growth. This includes addressing training requirements for ships’ companies and enabling those personnel to continue career advancement while engaged in introduction into service activities.
73 Australian Naval Review 2019 Rear Admiral David Proctor To support the hardware and people investments, last year my predecessor, RADM John Martin, ONZM, issued a refreshed New Zealand Maritime Doctrine setting out the fundamental principles that support what the NZDF does with its naval service. It is perhaps best seen as a ‘User’s Guide to the RNZN’ covering the how and why the Navy operates. It explains the context in which we operate: the sea, our heritage as a fighting force, our ethos and values, the lessons of the past, and how those strands are woven together to form the strength of our Navy, Te Taua Moana o Aotearoa. It also provides a sense of self. If we are to achieve our vision of being A World Class Navy for a Large Maritime Nation, then we need to understand where we have come from, the challenges we face, and to believe in the journey that will get us there. It is a foundational document that informs those in the Navy today and those who seek to use New Zealand naval assets in a joint or combined force.
Finally, New Zealand is undertaking a Defence Capability Plan Review. The result of the review is due to be released prior to this article appearing but is expected to foreshadow further naval investments over the next 15 years. The long lead times for naval acquisitions mean that whatever the plan recommends, the RNZN will have to start preparing to operate our future ships today. Our current plans not only have to prepare us for the Fleet we can see in the near distance, but for the Fleet we can discern over the horizon.
Te Taua Moana o Aotearoa is undergoing a period of renewal and will spend the next five years preparing to operate the Navy of tomorrow. As we do that, we will also have a weather eye on the Navy over the horizon, and ensure that whatever we do today, enables us to influence and take advantage of the future. In meeting the challenges of the future we will deliver to the standards expected of us by the people of New Zealand, our partners, and the high benchmark set by our predecessors.
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The Royal New Zealand Navy 75
Rear Admiral David Proctor 75
Rear Admiral (RADM) David Proctor was born in Napier, New Zealand and joined the Royal New Zealand Navy (RNZN) as a Midshipman in January 1987.
RADM Proctor assumed the role of Chief of Navy on 29 November 2018 following numerous senior positions within the New Zealand Defence Force, including Deputy Commander Joint Forces New Zealand and Acting Vice Chief of Defence Force from July to September 2018.
RADM Proctor has held a number of senior logistics posts during his career, including operational logistics appointments at sea and overseas. His operational service includes a deployment to the Solomon Islands and being appointed the Chief of Logistics, United Nations Mission in Support of East Timor.
RADM Proctor has a Masters in Management (Defence Studies), a Masters in Politics and Policy, and is a graduate and fellow of the Centre for Defence Strategic Studies (Canberra). He is a member of the New Zealand Institute of Directors and has also been awarded a Deputy Chief of Navy Commendation.
David is married to Wendy Proctor. They have two children, Joshua, who is in the Royal New Zealand Air Force, and Emma who is studying towards a Bachelor of Physical Education at Otago University
75 Australian Naval Review 2019