Girt by Sea, and by the Law of the Sea: Why UNCLOS Matters to Australia

Australia is the world’s smallest continent and largest island. It is protected and divided from the rest of the world by three great oceans, and possesses the world’s third largest maritime domain.  As a line in the national anthem proclaims, Australia is physically “girt by sea” — but beyond that, its security and prosperity are also underpinned by the law of the sea.

Throughout the decade of negotiations which produced the 1982 United Nations Convention on the Law of the Sea (UNCLOS), Australia actively pursued some key objectives: securing a comprehensive and widely accepted legal regime for the oceans; confirming the emerging system of maritime zones; ensuring a balance between coastal State rights over resources, the protection of navigational freedoms and the protection of the marine environment; and establishing a dispute settlement framework.

In 2022, as we observe forty years since the adoption of this landmark treaty, UNCLOS — and these same objectives — matters as much to Australia as ever.

First, and most obviously, the system of maritime zones established in UNCLOS brings Australia great prosperity. By virtue of its isolated location and 34,000 km coastline, Australia has a maritime domain of 13.86 million square km, which is more than twice the size of its land territory and covers 14 per cent of the world’s oceans. In 2017-18, Australia’s ocean economy was valued at A$81.2 billion (US$54.2 billion, compared with just A$59 billion from agriculture). By 2025 it is predicted to generate more than A$100 billion per annum.

Although the resources and industries generating this prosperity will change over time, the UNCLOS framework leaves Australia well-placed to adapt and respond. For example, while Australia’s offshore oil and gas resources will become less important as the world transitions to a regime of net zero emissions, Australia can turn to its world-class offshore wind energy resources, which (technically, at least) are more than enough to meet the current annual electricity demand of the entire world (limited in practice by the need to situate turbines in suitable waters and in proximity to relevant infrastructure).

Second, and no less importantly, the freedoms and rights of navigation and overflight preserved by UNCLOS are critical to Australia, both economically and strategically. As an island nation dependent on seaborne trade for export and supply, Australia relies on the freedom to navigate through the waters of other States — in particular, the archipelagic States to its north and east. And given its geography, Australia also has clear interests in preserving the navigational rights of warships and ensuring stability in the complex strategic situation of the South China Sea.

Although multilateralism has been under attack in recent years, in this era of complex challenges, technological change, and growing competition, inclusive multilateral frameworks like UNCLOS matter more than ever, particularly for middle or regional powers like Australia.

Nonetheless, Australia has also introduced some measures that other countries (such as the United States and Singapore) view as a challenge to the freedom of navigation — such as the regime of compulsory pilotage, which requires foreign vessels to take on board a pilot for passage through the shallow and reef-strewn waters of the Torres Strait in order to protect the marine environment. As a coastal State dependent on the freedom of navigation, Australia worked pragmatically within the UNCLOS framework to achieve the relevant objectives and assuage the concerns expressed by other States.

Third, and relatedly, the compulsory dispute settlement framework established in UNCLOS is important to maintain consistency and ensure accountability in the implementation of rights and obligations under the Convention. Australia has used this framework both to challenge the legality of actions taken by other countries (such as Australia’s case against Japan in relation to fishing for southern bluefin tuna) and to defend the legality of its own interpretations of UNCLOS (as in Russia’s case against Australia concerning the arrest and detention of a Russian fishing vessel).

The opportunity to test the rules established in UNCLOS and settle disputes peacefully is critical to Australia’s desire to maintain a stable, predictable and durable maritime order. As the conciliation between Australia and Timor-Leste has shown, even contentious maritime boundaries — which are not subject to compulsory dispute resolution under UNCLOS — can be successfully resolved through this framework.

Finally, UNCLOS is critical to the global institutional architecture — not only to ensure that the inter-related issues of the ocean space can be considered as a whole, but that they are considered by the whole international community. And UNCLOS is also critical to the regional institutional architecture — both in the ‘Blue Pacific’, where the challenges of climate change are already testing the legal framework, and in the Indo-Pacific, where UNCLOS is the key foundation of the rules-based maritime order. Although multilateralism has been under attack in recent years, in this era of complex challenges, technological change, and growing competition, inclusive multilateral frameworks like UNCLOS matter more than ever, particularly for middle or regional powers like Australia.

UNCLOS provides a mechanism for cooperation and collaboration between all States — great, middle and small powers; continental, island and archipelagic States; developed and developing States; coastal, flag and land-locked States — within the safety of a comprehensive framework that allows all issues and interests to be considered. While not every State is a Party to UNCLOS, its widespread ratification and high level of acceptance as custom provide a firm foundation for discussion on issues of disagreement.

In a speech given while in opposition, Australia’s now Foreign Minister Penny Wong emphasised the need for Australia to “build the region and the world we want – one that is prosperous, peaceful and in which sovereignty is respected.” It seems clear that, even after forty years, UNCLOS still has an important role to play in realising this vision.

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This article is part of the ‘Blue Security’ project led by La Trobe Asia, University of Western Australia Defence and Security Institute, Griffith Asia Institute, UNSW Canberra and the Asia-Pacific Development, Diplomacy and Defence Dialogue (AP4D). Views expressed are solely of its author/s and not representative of the Maritime Exchange, the Australian Government, or any collaboration partner country government.