Maritime Studies
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The content of the recent publication An ANZAC Dollar – Currency Union and Business Development provokes a number of speculative questions relating to possible or potential ‘union’ in other dimensions with Australia.[1] One wonders if the study is indeed a metaphor for the greater integration and joint management, rather than government, of Australia and New Zealand. In a geographical or territorial physical sense a union is impossible but then if one examines the proximity of the two nations’ Exclusive Economic Zones (EEZ) which at some places in the Tasman Sea and elsewhere share a common boundary, there may well be a certain fuzziness in drawing a physical distinction between the two countries. A maritime boundary in the Tasman Sea but on the continental shelf, and far from the nearest shore of either landmass would be difficult to delineate for any practical purpose. There are other boundaries near Macquarie Island and the New Zealand islands in the southern ocean. Nautical boundaries by their very nature are difficult to define practically, and the turbulence of the sea and swirling waters makes it very difficult to draw a meaningful distinction between one side of an imaginary line or the other. The same cannot be said however, about the seabed where it is possible to define exact boundaries, but rather tricky because of depth to specify where the line of demarcation actually lies.
There are quite clearly matters of a sovereignty nature that need to be carefully determined but for all practical purposes is there any real advantage in making a management distinction between the two zones where they meet? Taken a step further what would this mean for the joint or at least highly integrated management of the two nations’ Exclusive Economic Zones as a whole? Is there a case for separate development of these two vast Ocean Territories? Boundary delimitation of New Zealand’s claim has to be lodged with the United Nations by August 2006. Surely there will be some agreement with Australia beforehand as there will be an agreed common boundary of EEZs in the Tasman Sea. It raises the question of what benefits could there be to New Zealand and Australia of a common management approach to the two separate EEZs? Two discrete spheres of stewardship emerge from consideration of the foregoing:
(a) Common rules for the practical management of the two EEZs.
(b) A joint responsibility for the security of both EEZs.
Local and regional laws may be of some importance but as the eminent jurist the Rt Hon Justice Sir Kenneth Keith has already observed more and more law is being enacted internationally.[2] If this is indeed the case is there not an advantage for both countries to standardise those local assets, which include management expertise, legal, social and economic resources to produce a common approach? Economies function within the environment – to divide the environment into separate but adjoining legal entities and then apply different rules and management practice may indeed incur onerous extra costs to both Australian and New Zealand interests for little direct benefit. Some of these difficulties are recognised in the practice of the Law of the Sea,
…the principles of delimitation which have been laid down in the Conventions and by courts and arbitral tribunals have been formulated at a high level of generality….[3]
The purpose of this paper is to discuss briefly the case for a joint or unified New Zealand and Australian approach to the management and security of the two countries’ EEZs. When combined they would probably form the largest maritime jurisdiction and maritime territory in the world – there is therefore merit in examining the concept.
The concept of Maritime Exclusive Economic Zones is a relatively recent phenomenon – its origins can be traced to a convergence of two movements. In January 1971 Kenya made a proposal to the Asian–African Legal Consultative Committee and in the following year to the United Nations Sea Bed Committee concerning exclusive use of the sea neighbouring the coast – these proposals being supported by a number of developing nations. Meanwhile some Latin American countries had also developed a similar concept of the ‘patrimonial’ sea. The two strands of thinking on the matter received active support from many Afro-Asian countries and also from some developed coastal states.[4] A prime motivator for many of these countries was to reduce the depredations of Distant Water Fishing Nations (DWFN) in waters adjacent to their shores and to gain more control over fish stocks in particular. New Zealand was not alone in expressing concern at the activities of predatory fishing practices and in 1977 enacted a law that declared a 200-mile Exclusive Economic Zone and which, to the dismay of several DWFNs, came in to effect on 1 April 1978.
The New Zealand Exclusive Economic Zone or Ocean Territory is reckoned to be the fourth largest in the world which one estimate reckons at 1,409,500 square miles. Australia’s is fifth in size and comprises some 1,319,900 square miles. It is something of a paradox that although mainland Australia is many times the size of New Zealand and the population similarly outnumbers that of this country, New Zealand’s Ocean Territory is larger than that of Australia’s. Both countries may yet include another vast but as yet indeterminate area of claimable continental shelf, which will add considerably more to these already huge areas of the world’s surface.[5] There are also further claims possible by both countries in respect of Antarctica. These Ocean Territories are a ‘common resource’ now conferred under the provisions of the United Nations Convention of the Law of the Sea 1982 (UNCLOS III) for each country to administer and enjoy. Because of the proximity of the Ocean Territories of both Australia and New Zealand there are many issues in which the two countries do collaborate for mutual benefit – for example under the provisions of the Australia New Zealand Environmental and Conservation Council (ANZECC). There are many others. Of particular importance is the security of these maritime territories.
There is no obligation under UNCLOS III for New Zealand to claim an EEZ.[6] That it has chosen to do so however obligates the nation to manage and conserve the living and non-living resources therein. There is a notable economic benefit, as earnings from the fisheries are presently in excess of $2 billion per annum. The problem is that although the nation may enjoy these financial benefits there are detailed specific responsibilities associated with other economic resources, marine scientific research and pollution control which the country is obliged to discharge. On the positive side, and what is not necessarily clear, is that these recently acquired maritime territories represent the new frontiers of our age – how we discover their properties and manage them to best advantage is a pressing intellectual challenge of our time. However, it is a curious fact that many people in both Australia and New Zealand tend not to look to the sea as a resource rich environment. For too long the effects on the ecology of the ocean from malevolent use, environmental degradation and over-extraction of fish and other animals have been ignored. Previous generations have, perhaps, not had to worry too much about their use of the seas but now, the concept of inter-generational equity is an increasing political pre-occupation. There is thus a responsibility to manage these ocean estates to best advantage, not only for us but also for those yet to come.
A recent conference ‘Our Oceans: The Next Great Economic Frontier’ organised by the Advanced Engineering School of the University of Canterbury, at Te Papa in Wellington over the 12/13 October 1999 recorded in its advertising that:
…The value of the resources is vast. They are potentially worth trillions of dollars…[7]
Appreciation of these new economic opportunities, which have the potential to profoundly change the structure of our society, trading and other relationships with our neighbours and the world at large, has apparently yet to dawn on our society as the following quote from the University of Canterbury Conference Flyer illustrates:[8]
…there is little understanding and appreciation of the scale of the resources either by the public or by the commercial sector in general…
These new maritime opportunities and guardianship include:[9]
• development of advanced underwater systems for mineral exploitation on and beyond the continental shelf,
• development for the first time of a nascent but effective property rights-based system of fisheries management,
• a related attempt to arrive at a clearly articulated and applied system of sustainable conservation management which is eco-system based;
• enormous expansion in marine-based recreation;
• development of an effective regionally-based navigation management system for world sea trade, based on global standards,
• the establishment of a permanent global ocean atmosphere monitoring system,
• effective regional control of waste disposal into the marine environment.
Although it may not have been recognised when New Zealand declared its intention to exercise a 200-mile Exclusive Economic Zone in 1977, it is becoming increasingly evident that the seas comprising New Zealand’s ‘Exclusive Economic Zone’ and claimable continental shelf offer as yet unknown benefits and opportunities. Recent reports from the Geological and Nuclear Sciences Institute indicate a cornucopia of energy in the form of gas hydrates off the East Coast.[10] Scientific research also confirms that the volcanic vents in the seas to the northeast of the North Island disgorge rich deposits of metallic elements onto the ocean floor. In the areas proximate to these vents, fantastic creatures survive in extraordinarily hostile conditions where high temperatures, huge pressures, and sulphurous liquids mitigate against any life form – yet they survive and flourish. Unlocking the secrets of their genetic make-up may have remarkable medical benefits for mankind. As fish stocks in other parts of the world decline, simple economics indicate that southern ocean fisheries become more valuable and therefore liable to poaching, overfishing and other undesirable activities. Apart from the obvious non-economic environmental benefits bestowed by prudent stewardship of the ecology and maritime estate, it is clear that there are considerable financial advantages to be gained from enlightened use of the oceans. It demands national and indeed international stewardship of unprecedented prudence. In this respect at least there is great scope for concatenating New Zealand’s Oceans Policy with that of Australia. An Australian study for example, estimated the annual value of that country’s activity from its maritime territory by year 2020 at between $50 and $85 billion.[11]
Australia has recognised that a management regime specifically tailored to the country’s maritime territory is a necessary instrument of national governance. After wide public consultation Australia has now defined an Oceans Policy – it probably has some flaws but these will be revealed and can be addressed.[12] The intent of the policy however is,
…to provide a strategic framework for the planning, management and ecologically sustainable development of Australia’s fisheries, shipping, tourism, petroleum, gas and seabed resources while ensuring the conservation of the marine environment…[13]
New Zealand has yet to define how its Ocean Territory will be managed. Articulating an ‘Oceans Policy’ was indeed a bold and imaginative public policy initiative by the Australian Government – it had never had to be done before. Australia’s Oceans Policy is now a point of reference, giving guidance and principles of direction, to national and local policymakers and to include all sectors and members of society on how their equally munificent oceans will be strategically managed and governed.[14] A wide range of factors is considered and integrated into a coherent, orchestrated plan and strategy. The management of fishing activities, marine tourism, extraction of hydrocarbons and other minerals, shipbuilding and maritime transport are all considered as well as guidelines for new investments in new industries. Likewise the effects on the ecology of the ocean from malevolent use and pollution are also comprehensively addressed. For example it is acknowledged that pollution from land-based activities is a particularly difficult issue to manage and one that has international consequences. Underpinning these considerations is the recognised necessity for scientific research and including oceanography, hydrography and meteorology thus leading to greater awareness and understanding of the natural environment. Of particular importance is the understanding that
…managing oceans on a purely sectoral basis (i.e. each industry sector and ocean user doing basically ‘its own thing’) is dysfunctional with a ‘tyranny of small decisions’. It does not recognise the ‘interconnectedness’ of ocean uses and submerges the conflicts of interest that can emerge, particularly the basic tension that invariably arises between wealth creation interests (or economic uses) on the one hand and marine environmental protection on the other…[15]
Taking this observation to its logical conclusion indicates that ‘ocean management’ is indeed an international and trans-border activity.
Giving the proposed policy greater scope and potency however, are the express provisions for inter-generational equity, in other words, to prevent deleterious use of the oceans today, which could thereby jeopardise the interests of future generations. Binding the whole proposed policy together are the yet to be developed reporting and assessing mechanisms. To make this workable and effective will be the acid test of the proposed policy but the intent to do so is clearly evident. The matter of policing and surveillance, especially that of an ecological nature, will necessarily extend beyond Australia’s EEZ if it is to be effective.
The consideration of a national ‘Oceans Policy’ for New Zealand is a necessary first step for this country to set about optimising the management of its ocean estate. Although there is sometimes reference to suggest that New Zealand is a ‘Maritime Nation’ the facts illustrate a quite different circumstance. New Zealanders use the maritime environment for a number of essentially recreational purposes, sailing, diving, fishing and swimming with dolphins! Local merchant shipping is essentially moribund although it is a much more economically efficient method of transporting cargoes around the country than road and rail transport. Indigenous fishing companies have prospered in recent times but that is about the only maritime industry to have done so. A vigorous public debate on the subject could guide and define the principles of direction, to national and local policymakers concerning the use of our seas and how the national maritime effort may best be co-ordinated. Well-resourced maritime scientific research is an obvious contender. Do Crown Research Institutes have any strategic framework to follow? The judicious management of fishing activities, practical environmental protection, development of marine tourism, recreation and leisure activities are high in public expectations. Less obvious but of great importance are extraction of hydrocarbons and other minerals, safe maritime transport, policing and traditional maritime security measures. There are other international obligations, such as search and rescue, and hydrography, which justify inclusion. It would also signal internationally this country’s policies and obligations on matters of rights of free passage, pollution, resource extraction, and compliance with the other precepts of UNCLOS III as a responsible international citizen. Is it not therefore necessary to examine the Australian version and use the experience of our larger neighbour to good effect? Likewise because of the interconnectedness of the two ocean territories it is also in Australia’s best interests to ensure a joint approach to ocean management in this part of the world.
A further consideration not overlooked by our neighbours is the challenge to protect Australia’s national interest and sovereign rights within the Australian Ocean Territory (AOT). The responsibility for this rests primarily with the Australian Defence Force, and includes military preparedness and contingency planning, maritime surveillance and response, fisheries law enforcement and search and rescue. However, a strategy of surveillance and enforcement of the Oceans Policy Regime in the AOT also includes policing and the monitoring and interdiction of illegal movement of people, illicit cargoes, animals and plants. Intelligence from various sources is pooled to provide input into a national surveillance plan. The Australian Coastwatch is tasked with coordinating various assets including the Australian Defence Force and the Australian Customs marine fleet to ‘police’ Australian waters. The seriousness with which this role is weighed may be judged from an earlier proposal in the draft Oceans Policy to acquire eight Customs ocean-going vessels.[16] If this proposal were taken to a straight-line conclusion it would indicate that New Zealand would need a similar number of ships and to work in concert with their Australian counterparts. Could these ships be built cooperatively on the same basis as the ANZAC Frigate Programme? Of more practical difficulty however, is the fact that there is a shortage of people who can actually work at sea. Training of seafarers and those associated with the business of managing ships, including piloting, brokerage, salvage and pollution control is in serious decline both in New Zealand and Australia.[17]
Express provisions, to prevent deleterious use of the oceans today and to conserve and nurture them for future generations is not a utopian myth. It is a strategic necessity that merits ethical and moral consideration of the highest calibre. Humans can no longer treat the ocean either as a public sewer for untreated and unwanted wastes or as an inexhaustible source of edible and other resources. The physical and ecological security of these EEZs is therefore a matter that requires unprecedented prudence. Satellite observations may indicate the whereabouts of certain activities in the ocean but only properly equipped ships and highly trained seafarers can take measures to intervene and mitigate or prevent inimical behaviour. New Zealand has demonstrated a willingness to intervene in a small island on the other side of Australia, namely East Timor. Surely the day-to-day maintenance of maritime security anywhere in the region but especially within the two EEZs is likewise a matter of considerable importance to this country.
Agendas of parochial self-interest usually inhibit and obfuscate the development of the public good and this could be the case in producing a new code of maritime stewardship to govern the use of our ‘common oceanic resources’. It will certainly not be easy to produce a workable and effective Oceans Policy, but an enduring and worthwhile discipline is seldom achieved without a great deal of concession and compromise. Strong and sensible political leadership is required. An Oceans Policy has an international dimension too, as it will also address, in part, avenues for maritime cooperation with our other neighbours, including Fiji, New Caledonia and the Antarctic. Given the huge areas of sea would it not have been more sensible for Australia and New Zealand to co-operate in the first instance to draw up an Australasian Oceans Policy?
The ruthless predation of toothfish poachers in the Southern Oceans is a timely indicator that our joint oceanic interests require the articulation of a comprehensive maritime policy and strategy.[18] As northern hemisphere nations increasingly look south for new resources of fish and minerals to exploit – one should also ponder about the challenge to protect the national interest and sovereign rights of Australia and New Zealand’s Ocean Territory. The practical responsibility rests primarily with the Defence Forces of both countries, and includes military preparedness, contingency planning, and maritime surveillance and response. There is a requirement therefore that the Armed Services are properly and appropriately equipped to operate in some of the most tempestuous and remote waters of the world including the Antarctic. Surely there is scope for New Zealand and Australia to jointly address matters of common security in the ocean deep and to allot specific responsibilities to police and patrol the interests of each other for the common good? This could mean highly integrated maritime forces – and include exchanges of personnel and command. New Zealand’s Ocean Territory is however larger than that of Australia. That country’s maritime forces are much larger than those of this country – does New Zealand therefore have to invest more resources in its maritime infrastructure?
Whilst the thrust of the Australian Oceans Policy is to enhance, use and protect the maritime ecosystems of the Australian Ocean Territory it offers useful guidance for New Zealand policymakers. New Zealand, in a similar circumstance to that of Australia but with a proportionately larger ocean estate, should lose no time in developing its own Oceans Policy and integrating it with that of Australia. There is, after all, an ecological, economic and strategic necessity to do so.
[*] Retired Seafarer, Member of the Centre for Strategic Studies, Victoria University of Wellington, New Zealand
[1] Arthur Grimes, Frank Holmes, Roger Bowden, An ANZAC Dollar? Currency Union and Business Development, Institute of Policy Studies, Wellington 2000.
[2] Sir Kenneth Keith, International Law and Treaty Obligations, in Peter Cozens (ed.), A Maritime Nation – New Zealand’s Maritime Environment & Security, Centre for Strategic Studies, Victoria University of Wellington, Wellington, 1996, p. 33.
[3] R.R. Churchill, A.V. Lowe, The Law of the Sea, Third Edition, Melland Schill Studies in International Law, Manchester University Press, Manchester, 1999, p. 182
[4] ibid., p. 160.
[5] ibid., p. 178.
[6] ibid., p. 161.
[7] University of Canterbury Advanced Engineering School Flyer, Our Oceans: The Next Great Economic Frontier, April 1999.
[8] loc. cit.
[9] Hance D. Smith, ‘The Role of the State in the Technical and General Management of the Oceans’, Ocean & Coastal Management, vol. 27, no. 1-2, pp. 5-14, 1995, Elsevier Science Ltd, Northern Ireland.
[10] Alan Sampson, ‘Energy Source on NZ Seabed’, The Dominion, Wellington, 16 February 1999.
[11] Australia’s Oceans Policy – An Issues Paper, Canberra, 1998, p. 15.
[12] Australia’s Oceans Policy, vols 1 & 2, Commonwealth of Australia, Canberra, 1998.
[13] Sam Bateman, ‘Australia’s Ocean Policy and the Maritime Community’, Journal of the Australian Naval Institute, vol. 26 no. 1, January/March 2000, p. 7.
[14] Australia’s Ocean Policy, op. cit.
[15] Bateman, op. cit., p.6.
[16] Australia’s Oceans Policy – An Issues Paper, Canberra, 1998, p. 85.
[17] Bateman, op. cit., p. 8.
[18] Simon Upton, ‘Standing Up to Pillage By Corporate Raiders’, The Dominion, 10 December 1998.
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