As the law of the sea slowly formed over many centuries, the right to use the world’s ocean spaces with relative freedom, predominantly for the purposes of facilitating trade and commerce between communities, was one of the earliest components of the law that was developed. Accompanying this development was the realisation that maritime traffic could also provide a threat to towns and cities along coastlines in a variety of different ways, and that some form of regulation of this traffic was necessary. However, the precise nature, and the permissible extent, of maritime regulation has been the source of ongoing dispute between coastal States and the users of maritime spaces.
One area in which disputes have regularly arisen is the regulation of maritime traffic when people are trying to seek asylum through arrival in a state by boat. Australia has had a long history of dealing with boat arrivals containing people seeking asylum, and over the course of many years Australia’s approach towards these boats has altered markedly. There has been a resultant impact on the international community’s approach to this topic as well, with a range of measures being adopted including amendments to applicable conventions and the use of similar operational tactics to those used by Australia.
The first part of this chapter will outline what is meant by freedom of navigation and identify some of the friction points that exist between states when navigation, especially close to the coastline, occurs. The next part of the paper will examine how force can be used during law enforcement activities at sea and draw some principles from the key cases and incidents that have informed state practice in these types of operations. Following that, a seminal maritime incident arising during Australia’s border protection operations, ‘the Tampa incident’, will be examined. The paper will conclude with an assessment of whether or not Australia’s law enforcement operations at sea have been undertaken in a manner that is consistent with the law of the sea.
1
It is widely recognised that modern concepts of freedom of navigation can be traced to the writings of Hugo Grotius in the early seventeenth century with the publication of his dissertation Mare Liberum1 and the subsequent responses that were evoked to its publication.2 Although Mare Liberum was originally published anonymously, the publication had the clear purpose of defending the right of the Dutch East India Company to trade and travel in waters which at that stage the Portuguese claimed as solely their own. It was not until the 1860s that the author of Mare Liberum was unambiguously established, and Grotius’ work is now regarded as instrumental in establishing the fundamental principle that governs the law of the sea – the freedom of navigation.
Freedom of navigation has manifested itself as part of customary international law as the concept is considered to be one of the fundamental rights available to vessels of all nations, particularly in so far as this right relates to the high seas.3 In essence, the high seas have been viewed as part of a vast global common upon which vessels of all states have freedom of navigation, fishing and other lawful uses of the seas, although the genesis of this view clearly lies in the ‘… notion of freedom [being] used as an ideological tool’ in furtherance of national objectives.4
Freedom of navigation was also a central theme running through the attempts at codifying the law of the sea that occurred during the twentieth
The entry into force of the 1982 losc in November 1994 had a profound impact on navigation rights that should not be underestimated. The establishment of twelve nautical miles as the maximum breadth of the territorial sea,14 the introduction of the exclusive economic zone,15 and the recognition of the unique circumstances pertaining to archipelagic States16 under the losc have all contributed to a fundamentally altered maritime operating environment
The modern concept of freedom of navigation is firmly based on the losc and encompasses various navigational rights and freedoms that apply differently in each of the maritime zones recognised in the Convention.19 The most expansive navigational rights and freedoms exist in the high seas, which are those sea areas that are beyond the jurisdiction of any state,20 while in those maritime zones that are closer to the coastline there is greater capacity for a coastal State to regulate elements of passage. Nevertheless, a right of passage exists in all maritime zones recognised under the law of the sea with the exception of internal waters.
Challenges to freedom of navigation can take many different forms, and measures to address these challenges can be equally diverse. Adopting an expansive view, the impact of issues ranging from a lack of common understanding of the losc’s provisions, through to protection and health of the marine environment, are all capable of being potential challenges to freedom of navigation in one way or another.21
2
Law enforcement at sea is conducted in a way that is distinctly different from the way in which law enforcement occurs on land. By its very nature, the maritime environment brings challenges to law enforcement activities such as the need to cope with the movement of vessels as they bounce around in unpredictable ways on the ocean. This, in turn, leads to careful consideration of the level of force that can legitimately be used during law enforcement operations at sea.
The use of force at sea is not a new concept. Battles between naval vessels have occurred regularly throughout history, and vessels have also been used for security and law enforcement activities for many centuries. This paper is not going to deal with activities that occur at sea during periods when the laws of armed conflict apply and where the law of naval warfare is the relevant lex specialis. Rather, the focus of this paper is upon those situations that arise when security or law enforcement activities are undertaken and where the relevant legal authority might be, for example, a UN Security Council Resolution or coastal State domestic law that is firmly based on a state’s international legal rights and obligations.
Looking at security and law enforcement activities at sea, an appropriate starting point is to begin with some issues that relate to how the use of force should be framed, including examining who, or what, force might be used. In the maritime context there seems to be a number of factors at play, including the use of force against the vessel itself (i.e., trying to stop the vessel from proceeding in a certain direction or carrying out a certain activity) and this activity is somewhat remote from consideration of the status of any persons onboard the vessel.
The losc reflects this division in Article 110 (Right of Visit) and Article 111 (Hot Pursuit) as action in both cases is directed against ‘a ship’. This type of force could be exerted without actually boarding a vessel, and would also be typified by an escalation of measures that are designed to compel those navigating the vessel to comply with the direction of those intercepting the vessel. Measures could include, in a graduated scale, request by voice/radio, signaling an intention to get the vessel to act in a certain way, maneuvering the intercepting vessel in a manner designed to initiate compliance, sending a boarding party to a vessel to deliver instructions or apprehend the vessel, use of a device to interfere with the vessel’s propeller or steering, the firing of warning shots near a vessel or actually firing at the vessel to compel compliance.
The use of force at sea during law enforcement operations was analysed in detail by the International Tribunal for the Law of the Sea in the m/v Saiga
Key among these principles is the requirement for force to be ‘… avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances’.25 The Tribunal then outlined the normal practice used at sea to stop a ship, including the range of escalatory actions that might follow should those onboard a ship not comply with the direction for the ship to stop. In providing this assessment, itlos referred to two earlier law enforcement cases with approval: the I’m Alone26 and the Red Crusader.27 The Tribunal concluded that ‘… only after the appropriate actions fail … [can] … the pursuing vessel … as a last resort, use force. Even then, appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered’.28
A consequence of the above information is that firing a weapon to compel a vessel to comply with the legitimate direction of an intercepting vessel may be permissible under international law. However, the losc does not directly address the level of force that can be used, instead referring to terms such as ‘necessary steps’29 or ‘control necessary’30 and leaving interpretation regarding what those terms mean to a case-by-case assessment in any given situation.
It is noteworthy that some mention of limitations placed on how a state can exercise law enforcement powers is contained in the losc. For example, Part xii of the losc contains two articles that address law enforcement activities in the context of measures that can be undertaken for the protection and preservation of the marine environment. However, these provisions only relate to
In relation to force that is used against individuals that are onboard a vessel, it is important to recognise there may be a number of distinct categories of persons who are in a vessel when a law enforcement operation is conducted.
The first category are those that are unaware of anything occurring in the vessel other than the routine operations associated with that vessel conducting its activities at sea. Such persons might be quite unaware of any illegal activity taking place in the vessel regardless of the scope of the activity occurring. Accordingly, any use of force against persons in this category would be quite problematic unless there was behaviour from a person that was clearly directed at interfering with legitimate law enforcement actions. The second category are those who are actually involved in the illegal activity, and it is possible that the behaviour of persons in this category might include interference (or even active resistance) to law enforcement activities.
An ancillary question therefore arises as to how it might be possible to identify on any vessel who is actually in each category, and if this can be done, whether there is, or should be, any difference in the level of force that is used in relation to dealing with either group while at sea. The answer will depend on what level of resistance, if any, is provided towards the law enforcement officials, but in either case, only force that is reasonable and necessary in the circumstances would be permitted.34 This legal test applies regardless of whether action is being taken under international law or domestic legislation.
One aspect of law enforcement that deserves mention is the right of hot pursuit that a coastal State may exercise when a vessel attempts to flee from being apprehended. In broad terms, hot pursuit can be undertaken when ‘… the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State’.35 The pursuit must begin
In summary, law enforcement measures are regulated under a combination of international law and the domestic law of the State undertaking enforcement action. In conducting law enforcement activities, there is a clear entitlement to use reasonable and necessary force to effect the law enforcement and also in a situation where there is a need to respond to a threat in self-defence. In some circumstances, this could include the use of lethal force, for example if being attacked with a weapon, but the details depend on the precise circumstances that are encountered. There is nothing particularly contentious about force being used against individuals in a law enforcement scenario, although limits must be placed on the amount of force that can be used. Again, the standard of ‘reasonable and necessary’ is relevant and authority may derive from the principles and standards established under international law, domestic law or a mixture of both.
3 An Example of State Practice – Australia and mv Tampa
In late August 2001, the Norwegian flagged container vessel mv Tampa rescued 432 persons at sea in the Indian Ocean between Indonesia and Australia. These persons had departed from a port on the southern coast of the Indonesian island of Java by paying large sums of money to people smugglers who crammed them into a small fishing boat, the Palapa, which was barely seaworthy. Unsurprisingly, the Palapa experienced engine trouble soon after departing the port, and approximately 24 hours after sailing the vessel’s engine was dead.39 The vessel foundered at sea for a number of hours while the question of which maritime rescue authority had responsibility for coordinating the vessel’s rescue was passed between Australian and Indonesian rescue centres.
The people picked up by mv Tampa were predominately from Afghanistan, escaping from the Taliban rule in that country, and were seeking to get to Australia in order to claim refugee status. However, the mv Tampa was not heading to Australia as its next scheduled port call was Singapore. Therefore, after receiving advice from the Indonesian rescue centre authorities,41 the Tampa’s captain initially proposed to drop off the ‘rescuees’42 at the Indonesian port of Merak which would be the most convenient outcome for mv Tampa and allow that vessel to continue on its voyage to Singapore. However, once this decision became known among the ‘rescuees’ there was a tense stand-off between representatives of those rescued and the Tampa’s captain that eventually resulted in the vessel heading towards the Australian territory of Christmas Island.43
While events were unfolding onboard the Tampa, the Australian government decided that it would prevent the vessel from disembarking the ‘rescuees’ at Christmas Island. Action taken to achieve this outcome included directing mv Tampa to remain outside the territorial sea surrounding Christmas Island and preventing any boats from leaving Christmas Island to visit the ship. Eventually, Tampa’s captain decided that the situation onboard his vessel was no longer safe, declared that the vessel was in distress and proceeded into the territorial sea. Once this occurred, the Australian government ordered members of the Australian Defence Force to go onboard mv Tampa and seize the vessel. The government also introduced a Bill into the Australian Parliament that would, if passed into law, provide the government with a wide range of powers to deny entry into Australia of people seeking asylum who arrived by sea.44
The first issue relates to efforts to keep mv Tampa out of the territorial sea around Christmas Island. The Australian government’s announcement on this issue occurred during a press conference by the Prime Minster on 27 August 2001 when it was stated that after ‘… having taken legal advice on this matter and having considered it very carefully …’ mv Tampa was not permitted to enter Australia’s territorial sea.46 The precise nature of the legal advice provided to the government has not been disclosed. If the government was relying on losc article 25, which permits the temporary suspension of innocent passage in the territorial sea to foreign vessels, there are some important elements of that suspension that must be complied with. First, the suspension must be ‘… without discrimination in form or in fact among foreign ships …’47 Therefore an order that only suspends Tampa’s right of innocent passage in the territorial sea, and not the right of other vessels, appears not to conform with the clear requirement of article 25(3) for closure to be without discrimination. Another element of this part of the losc is that the temporary suspension of innocent passage can only occur ‘… if such suspension is essential for the protection of [the coastal State’s] security …’ At the time when the closure was announced, the necessity of closing the territorial sea to Tampa for essential security reasons was difficult to comprehend. Accordingly, if the real intent of the Prime Minister’s announcement that mv Tampa ‘… does not have permission to enter Australian territorial waters …’48 was to suspend temporarily the vessel’s innocent passage in the territorial sea pursuant to the legal authority
The other key law of the sea issue arising from the Tampa incident concerns the extent of the obligation to render assistance to vessels in distress at sea under both the losc and other parts of international law.50 The losc has codified the customary obligation placed on mariners to provide assistance to persons at sea who are ‘… in danger of being lost’.51 The losc also requires the master of a vessel to ‘… proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance …’52 and there is no doubt that the master of mv Tampa complied with this requirement. The difficulty that arose for the Tampa is that neither the losc nor the solas and sar conventions adequately dealt with obligations that arise once persons in danger at sea have been rescued. This shortfall in the international law dealing with the final disposal of persons rescued at sea led to the lengthy standoff between the Australian government, the captain and owners of mv Tampa as well as Indonesian and Norwegian authorities. The issue was finally resolved after Tampa entered Australia’s territorial sea and was subsequently boarded by Australian military personnel, with the ‘rescuees’ then transferred to an Australian Navy vessel for transport to the small Pacific Island of Nauru.53
Subsequently, steps were taken at the International Maritime Organisation (imo) to prevent a situation like that faced by mv Tampa arising again54 when Norway successfully led the push for an amendment to the solas convention that would allow a vessel to land persons rescued at sea at the nearest available port.55 The result of this action was the publication, in 2004, of the imo’s Guidelines on the Treatment of Persons Rescued at Sea56 and an amendment
The arrival of mv Tampa in Australian waters in August 2001 signified a changed approach by the Australian government to dealing with unauthorised boat arrivals and the people onboard those vessels who sought to claim asylum in Australia. This changed approach involved more assertive interception of vessels at sea under the military-led Operation Relex I and ii, Operation Resolute59 and the ‘whole of government’ approach under Operation Sovereign Borders.60 These activities have not been without controversy, especially between Australia and Indonesia. Unfortunately, a number of vessels that were attempting to reach Australia did not safely complete their journey. Lives have been lost at sea, and questions have been asked about the way in which the Australian government was conducting border protection operations at sea.61
Perhaps the most embarrassing moment for Australia since the implementation of the revised border protection policy was when a number of ‘inadvertent
4 Concluding Remarks
The right to regulate maritime traffic involves a careful balance between the legitimate concerns of a coastal State regarding a range of threats posed by vessels that are in maritime zones under that state’s jurisdiction, and the long-standing freedoms of navigation that have existed for many centuries. In asserting their rights, coastal States have, on occasion, pushed the law of the sea’s boundaries and Australia has certainly adopted that approach with its approach to maritime border law enforcement operations over the past two decades.
In terms of regulating the movement of people at sea, there is little argument that Australia has a right (and responsibility) to control the entry of people into, and exit from, Australian territory including those maritime zones where Australia has jurisdiction to do so. Further, the potential need for force to be used when dealing with people who are seeking to enter Australia by boat in an unauthorised manner should not be surprising, as there are multiple reasons why law enforcement officials should require their directions be complied with.
Two English language versions of the publication, originally written in Latin, provide slightly different wording for the title: ‘The Freedom of the Seas or the Right which belongs to the Dutch to take part in the East Indian trade’ is the title of the translation by Ralph Van Deman Magoffin (New York, Oxford University Press American Branch, 1916) available at
For further discussion, see D.P. O’Connell, (I.A. Shearer ed.) The International Law of the Sea Volume 1 (Oxford, Oxford University Press, 1984) pp. 9–18. Also C.J. Colombos, International Law of the Sea (6th rev. ed, London, Longmans, 1972), pp. 62–64; R.R. Churchill and A.V. Lowe, The Law of the Sea (2nd ed, Manchester, Manchester University Press, 1988), pp. 3–4; and E.D. Brown, The International Law of the Sea Volume i (Aldershot, Dartmouth,1994), pp. 6–7.
The interplay between coastal State rights and the navigation rights of foreign vessels has been a subject of interest for many decades. See, for example, the discussion on this topic in K.C. Frazer, ‘The I’m Alone Case and the Doctrine of Hot Pursuit’, 7 North Carolina Law Review, 1929, 413.
E.D. Brown, supra n 2, p. 278.
United Nations Convention on the Law of the Sea, 1833 unts 397 (hereafter losc). Also reprinted and indexed in UN Publication (Sales No. E.97.V.10), Official Text of the United Nations Convention on the Law of the Sea of 10 December 1982 (New York, United Nations, 1997).
Convention on the Territorial Sea and the Contiguous Zone of 29 April 1958, 515 unts 205, Article 14.
losc, supra n 5, article 18.
Ibid., articles 37–44.
Ibid., article 53.
Ibid., articles 44 and 54.
16 ilr (1949) 155.
In conforming with accepted practice, the 1958, 1960 and 1982 UN Conferences on the Law of the Sea are referred to as unclos i, unclos ii and unclos iii respectively.
Tommy T.B. Koh, ‘A Constitution for the Oceans’, United Nations Law of the Sea Text (1983) at xxxiv.
losc, supra n 5, article 3.
Ibid., articles 55–75.
Ibid., articles 46–54.
For an early appreciation of the losc’s impact on Australia, see M. Tsamenyi, S. Bateman and J. Delaney (eds.) The United Nations Convention on the Law of the Sea: What It Means to Australia and Australia’s Marine Industries (Wollongong, Centre for Maritime Policy, 1996). In particular, note the contribution by I. A. Shearer ‘Should Australia have Ratified the Convention?’ at pp. 55–65 for a ‘devil’s advocate’ approach to the question of Australia’s ratification of the Convention.
It is clear that the losc did not simply represent a codification of existing customary law, as it introduced too many new concepts for such a proposition to be legally or factually sustainable. Nevertheless, parts of the losc do now represent customary law. For example, in relation to the exclusive economic zone (eez) Brown, supra n 2, p. 224 is clear that “there is no doubt that the general concept of the eez has been accepted into the body of customary law”. See also Oceans: The Source of Life – United Nations Convention on the Law of the Sea 20th Anniversary (1982-2002) at page 15 where the status of the losc on its 20th anniversary was assessed by the UN Division for Ocean Affairs and the Law of the Sea,
S. Bateman, Freedoms of navigation in the Asia-Pacific region (Oxford, Routledge, 2020), p. 13.
losc articles 86 and 87.
Bateman, supra n 19, p. 13.
M/V Saiga No. 2 (Saint Vincent and the Grenadines v. Guinea), (1999) itlos case no. 2, paragraphs 153–159.
Ibid., para 155.
losc article 293.
M/V Saiga, supra n 22, para 155.
The I’m Alone (Canada/United States of America), 3 riaa 1609.
The Red Crusader (Commission of Enquiry, Denmark/United Kingdom, 1962), 35 ilr 485.
M/V Saiga, supra n 22, para 156.
losc article 25 in relation to action taken in the territorial sea.
losc article 33 in relation to action taken in the contiguous zone.
losc article 224.
losc article 225.
M/V Saiga, supra n 22, paras 157–159.
The use of excessive force against the persons on board was identified in M/V Saiga, supra, n 22, para 158.
losc article 111 (1).
losc article 111 (1) and (2).
losc article 111 (4).
losc article 111 (3).
D. Marr and M. Wilkinson, Dark Victory (Crows Nest, Allen & Unwin, 2003) p. 7.
Ibid., p. 3, p. 9, p. 10 and p. 16.
Ibid., p. 20.
The term ‘rescuees’ was used in lieu of other terms such as ‘asylum-seekers’ or ‘refugees’ by Justice North of the Australian Federal Court to describe the people who were rescued by mv Tampa during a legal challenge to the actions being taken by the Australian government to prevent the people onboard mv Tampa entering Australia: Ruddock v Vadarlis (2001) 183 alr 1.
Christmas Island is an Australian offshore territory in the Indian Ocean. It is located approximately 190nm (350km) south of Java, 810nm (1500km) west of the Australian mainland and 1400nm (2600km) northwest of Perth.
The Border Protection Bill (2001) was defeated in the Australian Senate and never became law.
For example, the status of the ‘rescuees’ under the 1951 Convention Relating to the Status of Refugees 189 unts 137 was a critical issue, but not directly relevant to the law of the sea issues that were being addressed.
Transcript of the Prime Minister, The Hon John Howard MP, Joint Press Conference with the Minister for Immigration, The Hon Philip Ruddock MP, Parliament House, Canberra (27 August 2001) available at
losc article 25(3).
Prime Minister’s Transcript, supra n 46.
For a detailed analysis of this issue see D.R. Rothwell, ‘The Law of the Sea and the MV Tampa Incident: Reconciling Maritime Principles with Coastal State Sovereignty’, 13 Public Law Review 118 (2002).
The other two key instruments are the 1974 International Convention for the Safety of Life at Sea, 1184 unts 278 (‘the solas Convention’), through Regulation V33.1, and the 1979 International Convention on Maritime Search and Rescue, 1405 unts 97 (‘the sar Convention’) through Chapter 2.1.10 and Chapter 1.3.2.
losc article 98(1)(a).
losc article 98(1)(b).
A synopsis of the ‘Tampa incident’ can be found at
imo Assembly Resolution A.920(22) adopted on 22 January 2002. A summary of imo action can be found at
Rothwell, D. and Stephens, T., The International Law of the Sea, Oxford, Hart Publishing, 2016 (2nd ed) p. 58.
imo Resolution msc.167(78) (adopted on 20 May 2004).
imo Resolution msc.153(78) (adopted on 20 May 2004). For a detailed analysis of the imo’s response to the difficulties encountered by mv Tampa see F.J. Kenney Jr. & V. Tasikas, ‘The Tampa Incident: imo Perspectives and Responses on the Treatment of Persons Rescued at Sea’, 12 Pacific Rim Law and Policy Journal, 2003, 143–177. See also C. Bailliet, ‘The Tampa Case and Its Impact on Burden Sharing at Sea’, 25 Human Rights Quarterly No. 3, 2003, 741–774.
The current version of the National Search and Rescue Manual is February 2021 and can be located at
Operation Relex I (3 September 2001–13 March 2002); Operation Relex ii (14 March 2002–16 July 2006); Operation Resolute commenced on 17 July 2006 and continues:
Operation Sovereign Borders was established on 18 September 2013 and is a whole of government operation aimed at deterring and preventing people arriving in Australia by boat without authorisation. Statistics relating to Australia’s border protection operations, in particular boat ‘turnbacks’ can be found at
For example, in 2002 the Australian Senate compiled a report titled ‘A Certain Maritime Incident’ to inquire into a number of incidents that had occurred at sea since the Tampa’s arrival in August 2001, including the loss of ‘siev x’ with approximately 400 persons onboard. The report is available at
For a critical assessment of these incursions see S. Bateman, ‘Incompetence: Australia’s incursions into Indonesian waters’, Lowy Institute Interpreter, 28 February 2014, available at
The Australian government has consistently refused to provide details in relation to ‘on water matters’ regarding Operation Sovereign Borders, although some limited information has been obtained by journalists through Freedom of Information processes: