The Joint Review of the incursions by Australian vessels into Indonesian waters conducted by the Australian Customs and Border Protection Service (ACBPS) and the Australian Defence Force (ADF) released last week reveals that the incursions were a consequence of a failure to appreciate the extent of Indonesia’s territorial waters.
As the report says, 'On each occasion the incursion was inadvertent, in that each arose from incorrect calculation of the boundaries of Indonesian waters rather than as a deliberate action or navigational error'.
The incorrect calculation of maritime boundaries arises from poor appreciation of Indonesia's straight archipelagic baselines. Indonesia is an archipelagic state under the 1982 UN Convention on the Law of the Sea (UNCLOS) and is entitled to draw straight baselines connecting the outermost points of its archipelago, provided certain criteria are met.
While the territorial sea normally extends 12nm from land, if straight baselines are used, it can extend much further — a ship can be well beyond 12nm from land and still be within the territorial sea of Indonesia (James Goldrick explains this phenomenon here). Such straight baselines exist in two likely areas where Australian vessels may head when towing back asylum-seeker boats: to the south-west of Roti Island and off south-west Java adjacent to Christmas Island (here's a map of Indonesia's archipelagic baselines).
Brendan Nicholson said in The Australian earlier this week that it is not known where in the chain of command the basic mistake regarding maritime boundaries was made. The Joint Review is not clear on this matter. It states that:
The headquarters identified the requirement to obtain authoritative information on Indonesian maritime boundaries to inform the safe and proper conduct of the patrols. Despite recognising the importance of this information, headquarters staff supervising OSB tactical missions, effectively devolved the obligation to remain outside Indonesian waters to vessel Commanders.
Had headquarters staff implemented appropriate control measures, informed by authoritative information on Indonesian maritime boundaries, the normal post activity reporting and checks would have detected the incursions as they occurred. This did not occur. The appropriate controls were not put in place by the relevant headquarters.
Thus the Joint Review appears to attribute responsibility all the way down the chain of command from Operation Sovereign Borders (OSB) headquarters in Canberra to the ships at sea.
It's surprising that in setting up such a sensitive operation, no one in the chain of command foresaw the problem and did not move to ensure that everyone involved had the correct information regarding Indonesia's maritime boundaries.
The Joint Review notes that RAN commanding officers had received professional training to understand the provisions of UNCLOS, but that their Customs counterparts, who are trained for operations inside the Australian Exclusive Economic Zone (EEZ), had not received this training as it applied to the Indonesian archipelago.
All this is a worry. Not surprisingly, the incidents and the Joint Review have led to considerable criticism, including from Indonesia and facetious references in social media. More seriously, it's a public indictment of national incompetence in maritime affairs.
For a maritime country with a huge area of maritime jurisdiction, there should be a higher level of maritime awareness in government agencies, especially regarding fundamental issues of maritime jurisdiction. Commanding officers of all our maritime enforcement vessels should have a clear understanding of the law of the sea, including how it relates to our close neighbours, most of which are archipelagic states. Responsible authorities ashore should ensure this is the case. All departments and agencies in Canberra concerned with managing the maritime domain, particularly law enforcement aspects, should have the requisite maritime knowledge and awareness.
A few years ago, the Council for Security Cooperation in the Asia-Pacific (CSCAP) produced a memorandum entitled Maritime Knowledge and Awareness: Basic Foundations of Maritime Security. It noted the fundamental importance for policy makers of maritime awareness, including knowledge of the maritime domain, its uses, its intrinsic characteristics, its problems and the legal frameworks that cover maritime security.
This includes understanding basic principles of jurisdiction at sea. The recent incursions by Australian vessels into Indonesian waters as part of Operation Sovereign Borders suggests our current border protection arrangements do not give adequate attention to this important requirement.