Intelligence Gathering and Information Sharing

5
Intelligence Gathering and Information Sharing

A. Introduction

A critical element to protecting maritime security is ensuring that states have the necessary information at their disposal to take preventative or responsive action. As Colby notes:

There are no limits to the types and sources of information which may be useful. The processing of intelligence refers to the treatment accorded the raw data which has been collected. It generally includes appraisal of the relevance of the information, as well as editing and cataloguing in forms useful to decision-makers. These tasks vary enormously in complexity, depending in large measure on the amount and quality of data requested and actually collected.¹

The vastness and nature of the oceans present particular challenges for states seeking to improve their knowledge of the range of activities undertaken at sea. Intelligence gathering involves a range of operational and policy perspectives as well as legal considerations. The legal dimension provides a framework or informs the operational exercises of states in seeking intelligence for the purposes of promoting or ensuring their maritime security. The policy of Maritime Domain Awareness (MDA) and similar policies have been critical drivers and goals for intelligence gathering at sea, as well as information sharing. The specific legal rules therefore need to be understood against strategic policy initiatives.

Laws relating to the collection and dissemination of information as a matter of international law come from a range of sources and this remains true in the law of the sea more specifically. As a general matter, Fleck has written that ‘intelligence activities as such may not be wrongful under present international law, but the wrongfulness may derive from additional conditions, such as illegal intervention, breach of foreign sovereignty, or common crimes committed in the course of espionage acts’.² For the law of the sea, intelligence gathering may implicate, if not violate, coastal state rights over the territorial sea or the EEZ. In some respects, intelligence gathering goes very much to the military interests of a state and may be considered as an exclusive use of the oceans as a result. Yet when that intelligence is relevant for confronting the full panoply of maritime security threats an inclusive interest in intelligence gathering may be discerned.

Distributing intelligence requires identifying who needs to know what information for what purposes and forwarding such information accordingly. The satisfaction of such demands generally involves a complex on-going process, as the needs of decision-makers for information shift to meet the problems which confront them. Therefore, not only the distribution effort but also the initial gathering and processing tasks, must continuously react to these changes in decision-makers’ requirements for intelligence.³

The importance of intelligence gathering and information sharing is evident in law enforcement efforts and recent developments intended to enhance maritime security have incorporated legal mechanisms for the timely exchange of information. This particular dimension to law enforcement is examined in this chapter.

It is noted at the outset that various obligations arise in relation to sharing information derived from marine scientific research.⁴ Similarly, information-sharing obligations are set out in UNCLOS for matters concerning the protection and preservation of the marine environment; the delimitation of the outer continental shelf; the conservation and management of living resources; the development and transfer of marine technology; and semi-enclosed seas.⁵ However, this chapter focuses on the laws relating to intelligence gathering and information sharing that are most relevant in efforts to ensure maritime security.

This chapter therefore begins with an overview of the policy of Maritime Domain Awareness as applied in different states. From this basis, legal rules relating to intelligence gathering in different maritime zones are examined in the second part. The exclusive interests commonly driving intelligence gathering tend to militate against an expansive reading of rights for this activity. However, the relevance of MDA and its use for law enforcement, including against terrorist activities and WMD proliferation, may justify reconsideration of this position. States arguably have a common interest in improving information sharing mechanisms and promoting intelligence gathering for the greater good of enhancing overall maritime security. However, the exclusive dimension is likely to prevent this perspective from gaining ground. Concerns about protecting national security, especially due to the diverse uses of any information, seem likely to prevail. The third part of the chapter looks at some specific initiatives under international law designed to enhance a state’s knowledge about who is operating and what is happening at sea. Seafarers identification and the Long Range Identification and Tracking Regulation of the IMO are considered in this regard. The fourth part considers how information sharing has featured in various law enforcement efforts in response to maritime security threats. These analyses show that while an inclusive interest in improving information collection and sharing has prompted a range of legal initiatives, there is still a greater accommodation of exclusive interests and this emphasis has hampered the full effectiveness of these developments.

B. Maritime Domain Awareness

One of the main US policy initiatives in relation to intelligence gathering since September 11 has been the creation of a system of MDA, which seeks to generate and use information concerning vessels, crews and cargos. According to the US National Plan to Achieve Maritime Domain Awareness, ‘Maritime Domain Awareness is the effective understanding of anything associated with the maritime domain that could impact the security, safety, economy, or environment of the United States.’⁶ The purpose of MDA is thus to facilitate timely, accurate decision-making, so as to enable actions that neutralize threats to US national security interests.⁷

The primary elements of a global MDA include: a global network of regionally based maritime information exchange partnerships; the institution of worldwide standards for broadcast of vessel position and identification; automated tools to discern patterns, changes, and potential threats; and alerting maritime partners of suspicious behavior and potential threats.⁸ The need for international cooperation to achieve MDA and a shared interest among states for situational awareness and threat awareness to improve maritime security cannot be gainsaid.

MDA not only requires greater cooperation across different government departments and agencies, both within a state and then with other states, but also collaboration with private industry.⁹ The latter interaction is essential when considering that international shipping is predominantly undertaken by the commercial sector. It has been suggested that the system would be greatly improved if commercial information from manufacturers and shippers could be made available.¹⁰ However, difficulties here are that valuable and detailed commercial information is not likely to be made available to the US government in the absence of domestic legislation requiring this, and even then the information may not be reliable or prove insufficient for the purposes for which it was sought.¹¹

Other states and regional groups have developed their own coordinated approaches to handling information relevant to maritime security. As one example, the European Commission proposed in 2008 a European Border Surveillance System (EUROSUR), to prevent unauthorized crossings by immigrants, reduce loss of life at sea, and enhance Europe’s security.¹² Australia and New Zealand have both adopted similar MDA policies in light of the large expanse of their EEZs and Search and Rescue Regions.¹³ The Western Pacific Naval Symposium created a Regional Maritime Information Exchange (ReMIX) to share non-sensitive information on maritime security threats.¹⁴ The adherence of different states to this approach underlines that MDA is ‘the key to maritime security’.¹⁵ The need to collect, process and share information is fundamental to the range of law enforcement and military activities that are likely to be needed to ensure maritime security. The legal dimensions of this policy are explored in this chapter, and should be understood against this inclusive interest in enhancing knowledge about who is engaged in what maritime activities.

C. Intelligence Gathering as a Military Activity

When states seek to gather intelligence, the effort entails collecting information (broadly construed) so that as much as possible is known in advance of any particular course of action being undertaken.¹⁶ As mentioned earlier, intelligence gathering at sea has predominantly concerned the pursuit of information that may prove useful for a state’s national security. In other words, what does a state need to know about the maritime areas of another state, or what may otherwise be learned about a state (including its defensive or aggressive capacity) from the water surrounding it? This intelligence enables states to make decisions about their own national defence. The first section here considers the rights of foreign navies in coastal state waters.

How intelligence gathering may be characterized becomes a critical question for assessing its legality. Beyond the conduct of intelligence gathering activities by foreign flagged vessels in the territorial sea or EEZ of coastal states, information gathering rights and obligations arise in relation to different research activities. UNCLOS makes reference to marine scientific research, survey activities, and hydrographic surveys, but provides no definition of each.¹⁷ The second section looks to some of the difficulties arising from potential overlaps in characterizations of these different activities, focusing particularly on differing views in relation to military surveys and hydrographic surveys. While the latter has clear military benefits, it may be argued that it should be treated differently to other military intelligence gathering activities.

(1) Foreign navies in coastal state waters

Fleck has observed that ‘[n]o general norm exists in international law expressly prohibiting or limiting acts of intelligence gathering.’¹⁸ This statement remains largely true in relation to the law of the sea. Even in areas under the sovereignty of coastal states, such as the territorial sea and in straits, intelligence gathering activities are not specifically outlawed as a matter of international law, but affect the characterization of the passage of foreign vessels. The legal situation is even less clear when examining the rights of states in the EEZ. Questions arise as to the contours of the rights of coastal states and the freedom of navigation enjoyed by third states.¹⁹ The lack of legal clarity has become especially problematic as technological advances have not only improved the range and accuracy of both weaponry and intelligence collection, but also changed the very art of both warfare and intelligence gathering.²⁰ These difficulties are highlighted below.

(a) In the territorial sea and in straits

Intelligence gathering within the territorial sea or in straits subject to coastal state sovereignty may comprise of simple surveillance, including monitoring of communications, or more active challenges to test the defense warning systems of a state.²¹ Navies may wish to gather information about the geographic features of the coastal areas in the event that forces need to be deployed or that different naval vessels, including submarines, will need to traverse these waters.

The possibility of third states lawfully conducting intelligence gathering activities within the territorial sea of a coastal state is virtually non-existent. The coastal state exercises sovereignty over this breadth of water, including the air space above it,²² with the primary constraint on that sovereignty being that ships of all states enjoy the right of innocent passage through these waters.²³ As discussed in Chapter 2, passage is considered innocent under UNCLOS if it is not prejudicial to the peace, good order, or security of the coastal state.²⁴ Among the activities that will be construed as prejudicial in this context are research and survey activities,²⁵ as well as ‘any act aimed at collecting information to the prejudice of the defence or security of the coastal State’.²⁶ Ultimately any activity ‘not having a direct bearing on passage’ could mean that the passage is not innocent.²⁷ Whether passage is innocent or not is a question largely left to the discretion of the coastal state.²⁸ Colby suggests that the exclusive interest of the coastal state rightly prevails here, as only states with the resources and capability to undertake intelligence gathering would otherwise benefit.²⁹

While it could be argued that the coastal state is in the more powerful position when it comes to controlling activities in its territorial sea, in practice the collection of data required for the safe navigation of a ship during passage may produce data of additional use and the coastal state would not even be aware that this information was gathered.³⁰ There may be no external indication of intelligence gathering activity from the movements or configuration of a ship or ships and so a coastal state would have no concrete grounds for taking steps against the exercise of innocent passage by such a vessel.³¹

In straits subject to the regime of transit passage,³² UNCLOS requires that ships and aircraft must proceed without delay through the strait and ‘refrain from any activities other than those incidental to their normal modes of continuous and expeditious transit’.³³ What constitutes the ‘normal mode’ for a vessel or particular type of aircraft leaves considerable room for debate, and it may be argued that a vessel could collect not only data that was incidental to safe navigation, but also operate equipment and sensors that would normally be used in the operation of the vessel or aircraft.³⁴ Again, it is possible that this information may be collected without any noticeable effect on the coastal state and could still arguably fall within the legal contours of the rights of transit passage. Such a broad interpretation should be tempered by the prohibition on foreign ships carrying out any research or survey activities without the prior authorization of the states bordering the strait.³⁵ Moreover, as states parties to UNCLOS are required to fulfill their obligations in good faith and not exercise their rights in a manner that would constitute an abuse of right,³⁶ it would seem that a wide variety of intelligence gathering activities during transit passage should not be read into the ‘normal mode’ characterization. For intelligence gathering in the territorial sea or in straits, interpretations of permissible activities should augur in favour of the exclusive rights of the coastal state consistent with the sovereignty of states in these maritime areas, and in view of the fact that intelligence gathering is most likely for the national defence of the third state rather than responding to collective maritime security threats.

(b) Exclusive Economic Zone

The type of intelligence gathering that may be conducted in the EEZ has developed significantly since the formulation of UNCLOS.³⁷ In this regard, Hayashi has described the use of active signals intelligence activities, which may be conducted from either aircraft or ships and may be deliberately provocative to generate programmed responses.³⁸ He continues:

Other [signals intelligence] activities intercept naval radar and emitters, thus enabling the location, identification and tracking of surface ships as well as the planning and preparation of electronic or missile attacks against them. These activities appear to involve far greater interference with the communication and defense systems of the targeted coastal State than any traditional passive intelligence gathering activities conducted from outside national territory.³⁹

Hayashi further notes that these are ‘qualitatively an entirely new activity’ and new efforts are required to reach a common understanding as to the permissibility of such activities.⁴⁰

The controversy surrounding the rights of states to conduct signals intelligence activity was highlighted in April, 2001 when a United States EP-3E Aries collided with a Chinese F-8-II ‘finback’ fighter, killing the Chinese pilot and forcing the US aircraft to make an emergency landing on Hainan Island in China.⁴¹ The United States was of the view that its aircraft had been exercising the freedom of overflight, whereas China considered such ‘spy flights’ were contrary to international law and had previously sent fighters to fly at close range to the US planes in efforts to deter them from passing close to China’s coast and engaging in intelligence gathering.⁴² China’s view was that the information gathered could be used in an armed conflict, and was a violation of the sovereign rights and jurisdiction of a coastal state over its EEZ.⁴³

Further incidents include the December 2001 Japanese coast guard attack on and sinking of a North Korean spy vessel travelling in Japan and China’s EEZ with the loss of all on board, and also the protested presence of Chinese intelligence ships in Japanese waters, sometimes posing as research vessels.⁴⁴ The United States and China have continued to have confrontations in the South China Sea, with the United States claiming that its surveillance vessels were entitled to undertake operations in the disputed South China Seas and China seeking to hinder these operations.⁴⁵ Notably, the USNS Impeccable, which is designed to detect underwater threats such as submarines, was surrounded by five Chinese vessels in an effort to block its passage, and China has undertaken military fly-bys and used high-intensity spotlights against the USNS Victorious, a vessel described as an ocean surveillance ship.⁴⁶

The permissibility of intelligence gathering activities in the EEZ centres on the interpretation of Article 58 of UNCLOS, and whether intelligence gathering is one of the ‘other internationally lawful uses of the sea related’ to the high seas freedoms set out in Article 87. This issue is relevant not only for states wishing to gather intelligence or conduct military surveys in the EEZ of another state, but also for coastal states seeking to gain greater information about foreign vessels within their own EEZ. This latter aspect was seen in Australia’s declaration of a Maritime Identification Zone, which was intended to gain information from all vessels, apart from day recreational vessels, traversing Australia’s EEZ.⁴⁷ Nonetheless, it is the situation of a state wishing to conduct military activities in the EEZ of another state that has proven most controversial.⁴⁸

As discussed in Chapter 2, there is no explicit recognition of the right of third states to conduct military activities in the EEZ of a coastal state within the text of UNCLOS. Nor is there any express prohibition on such conduct. However, those involved in the negotiations of UNCLOS have maintained that the general understanding was that such activities could be conducted,⁴⁹ even though some states argued against such a position at the time.⁵⁰ Since the adoption of UNCLOS, state practice has been inconsistent on this issue.⁵¹

This debate about the legality of military activities is reflected in relation to intelligence gathering more specifically, with arguments that ‘[t]raditionally, intelligence gathering activities have been regarded as part of the exercise of freedom of the high seas and therefore, through Article 58(1), lawful in the EEZ as well.’⁵² Rauch, for example, has argued that the freedom of navigation associated with the ‘operation of ships’ allows for a range of internationally lawful military activities, including, most importantly for present purposes, intelligence gathering and surveillance.⁵³

Within the EEZ, the gathering and sharing of intelligence would be unlawful if it unduly interfered with legitimate valid claims of the coastal state to exercise its sovereign rights and jurisdiction over this zone. In addition, consideration should be given as to whether intelligence gathering falls foul of the due regard requirement.⁵⁴ Bateman suggests that ‘[t]ypically this would be the case if the research or data collection were being undertaken to support contingency plans for military operations against the coastal State.’⁵⁵ Such activity could also arguably be in violation of Article 301 of UNCLOS if the intelligence gathering runs counter to the prohibition on the threat or use of force.⁵⁶

Some states have rebutted the argument that military intelligence gathering falls within the freedom of navigation, with China specifically arguing that ‘these freedoms must be balanced against the security interests of coastal states.’⁵⁷ While the security interests of a coastal state have not typically been considered as part of the coastal state rights within the EEZ, the increasing sophistication of surveillance capabilities may require reconsideration of the appropriate balance between coastal state and third state interests. Hayashi has referred to these developments as follows:

Of particular concern are the increasing [Electronic Warfare] capabilities and the widespread moves to develop information warfare (IW) capabilities. Airborne [Signals Intelligence] missions are often provocative as visible efforts to penetrate the electronic secrets of the targeted country. Indeed, important aspects of regional [Signals Intelligence] and [Electronic Warfare] capabilities may invite attack, and thus encourage pre-emption.⁵⁸

Chinese scholars have argued that the legal protection afforded to coastal states in the EEZ needs to be increased in light of this improved technology, arguing that the reconnaissance activities now conducted in the EEZ are comparable to those that used to be conducted in the territorial sea and for which legal protection was accepted as necessary.⁵⁹

The current legal position appears to support the legality of intelligence gathering by third states in the EEZ.⁶⁰ Is this desirable, though? A change may be warranted in light of the international tension created through intelligence gathering activities in the EEZ, most clearly evidenced in the encounters between China and the United States, and the increasing securitization of the EEZ. In this vein, Bateman has observed:

Virtually by definition, littoral operations must be in the EEZ of one country or another. Successful operations in the littoral depend heavily on good oceanographic and hydro-graphic knowledge of the coastal environment, particularly for submarine operations, anti-submarine warfare (ASW), mine laying, mine counter-measures, and amphibious operations. A coastal State might well argue that it gains some security by restricting the availability of knowledge on its coastal environment, including its EEZ.⁶¹

Modern means of warfare, especially the use of information warfare and electronic warfare, support an argument that the position should shift to prevent intelligence gathering in another state’s EEZ. However, so long as intelligence gathering is conceived of as part of the broader freedom of navigation, the limitations on this activity may only be drawn from due regard requirements and the prohibition on threats or uses of force. It seems unlikely that any modification in this position will find broad acceptance in the near future.

(2) Military surveys and hydrographic surveys

To avoid conflicts as to the range of permissible military activities allowed in another state’s coastal maritime zones, different characterizations of intelligence gathering have been presented. Countering suggestions that military intelligence gathering should be governed by the laws relating to marine scientific research, the United States and other maritime states have sought to distinguish military intelligence gathering on the basis that it is not related to resource exploitation nor would it normally be published or disseminated as is the case for scientific research.⁶²

Another aspect of intelligence gathering that has proven particularly problematic is whether a distinction is to be drawn between military surveys and hydrographic surveys. Such a distinction has implications for these activities in both the territorial sea and the EEZ. Roach and Smith have provided the following description of each:

(1) Hydrographic surveys: ‘to obtain information for the making of navigational charts and the safety of navigation, and includes determination of one or more of several classes of data in coastal or relatively shallow areas—depth of water, configuration and nature of the natural bottom, directions and force of currents, heights and times of tides and water stages, and hazards of navigation—for the production of nautical charts and similar products to support safety of navigation.’⁶³

(2) Military surveys: ‘refer to activities undertaken in the ocean and coastal waters involving marine data collection (whether or not classified) for military purposes, and can include oceanographic, marine geological, geophysical, chemical, biological and acoustic data. Equipment used can include fathometers, swath bottom mappers, side scan sonars, bottom grab and coring systems, current meters and profilers.’⁶⁴

The question that has arisen is whether hydrographic surveys should be considered as part of the marine scientific research legal regime, and so be subject to the consent of the coastal state. Alternatively, hydrographic surveys, like military surveys, fall within the freedom of navigation and are regulated accordingly.

Hydrographic surveys are not permitted in the territorial sea as part of innocent passage,⁶⁵ or during transit passage without prior authorization.⁶⁶ At the time that UNCLOS was drafted, the technology available meant that hydrographic surveys effectively had to be conducted with the consent of the coastal state as the surveys involved participation from land.⁶⁷ Hydrographic surveying was viewed at this time as a technical activity related to the safety of navigation and so was not part of the marine scientific research regime.⁶⁸

With the development of Global Positioning System (GPS) technology in the 1990s, coastal state involvement was no longer essential for hydrographic surveys and consequently opened up the possibility of these surveys being conducted without the knowledge, and hence permission, of the coastal state.⁶⁹ Hydrographic surveying is a clear and distinct activity that, as evident in the low altitude of the aircraft, its repetitive flight pattern, and the typically relatively shallow waters of the area being surveyed, is not easily confused with other marine scientific research.⁷⁰ It was perhaps for this reason that there is no specific reference in UNCLOS as to what legal regime should be applicable to these surveys in a state’s EEZ.⁷¹

The United States considers that both military and hydrographic surveys are consistent with the freedom of navigation, and can be undertaken in the EEZs of other countries, without coastal state regulation, notification or consent.⁷² Other states have taken the view that their consent is necessary for third states to undertake hydrographic surveys in their EEZs.⁷³ Most notably in this regard was China’s decision in 2002 to enact law ‘stating that any “survey or mapping” activities cannot involve State secrets or hurt the State, and that all such surveys must have prior permission.’⁷⁴ China has also reportedly viewed ‘military hydrographic survey’ activities in the EEZ without coastal state permission as, ‘in a military sense, a type of battlefield preparation, and thus a threat of force’ against the coastal state.⁷⁵

It may be argued that since hydrographic surveys require permission if they are to be conducted during transit passage, and that their conduct would violate the right of innocent passage, then there is no need for hydrographic surveys as part of the safety of navigation for the passage of each vessel.⁷⁶ It follows that if there is no such link between hydrographic surveys and navigation in these maritime zones then these surveys cannot be read into ‘other internationally lawful uses of the sea related to’ the freedom of navigation.⁷⁷ Moreover, Bateman has argued that hydrographic data has considerable commercial value, and is important for national development.⁷⁸ The economic importance of hydrographic surveys further supports the view that it should be subject to a regime of coastal state consent, similarly to any other marine scientific research relating to resources. It is therefore appropriate to single out hydrographic surveys as a distinct form of intelligence gathering and as one subject to coastal state regulation.⁷⁹ Hydrographic surveys are undertaken for the development of navigational charts that are broadly beneficial to international shipping. The marine scientific research regime ensures that hydrographic survey activities are consistent with national needs as well as benefiting international shipping through the publication of charts resulting from the surveys.⁸⁰

(3) Conclusion

Some effort to resolve the controversy over the legality of intelligence gathering under the law of the sea may be seen in the Guidelines for Navigation and Overflight in the Exclusive Economic Zone, which were developed by a group of senior officials and analysts from the Asia-Pacific region in 2005. These Guidelines are intended to address the differences of opinion regarding military activities in the EEZ and represent a common understanding and approach to these issues within the region.⁸¹ Most significantly for present purposes, the Guidelines support ‘the general principle that military activities in the EEZ, including military surveying and intelligence collection, are part of the freedoms of navigation, overflight and engagement in other internationally lawful uses of the sea associated with the operations of ships and aircraft.’⁸² While the drafters of the Guidelines seek to influence the development of international law in this area, until they are widely accepted and endorsed, there remains scope for states to argue the opposite position.

The law remains unsettled in relation to the permissibility of the full range of intelligence gathering in another state’s EEZ. There are a number of arguments favouring the view that intelligence gathering in a foreign EEZ is lawful but this position should rightly be queried in light of technological progress. The primary interests at stake revolve around competing exclusive claims, which are both premised on individual states’ desires to improve their military position vis-à-vis another state (or states). In the absence of further clarity, it is this ongoing uncertainty, coupled with recognition of coastal state rights over the territorial sea, that form the background to a range of legal and policy developments that have been undertaken post-September 11 to improve intelligence capability for the purposes of promoting maritime security.

D. Monitoring the Movement of Ships and Seafarers

While intelligence gathering, as discussed in the previous Part, may most typically be linked to the military objectives of a particular state, the broader understanding of maritime security, and consequent emphasis on MDA, demands that any understanding of laws related to intelligence gathering be extended in scope. For maritime security, states now want more details about what vessels are going where, with what, and with whom on board, especially if those ships are approaching their own shores. This Part examines unilateral and multilateral endeavours to improve the collection of information in relation to the movement of ships and seafarers. Particular initiatives analysed in this regard are the Australian Maritime Identification System, the IMO Regulation on LRIT, and seafarers’ identity documents. Concerns about terrorism and proliferation of WMD have proven especially motivating in this regard, and the ISPS Code and WCO Framework of Standards may also be highlighted for their emphasis on intelligence gathering, as well as information sharing. The dissatisfaction expressed with Australia’s unilateral effort as well as multilateral attempts to improve intelligence gathering in monitoring the movement of ships and seafarers clearly reflects the inclusive interest that exists in enhancing maritime security. It is argued that state endorsement of this collective interest is essential to enable the legal frameworks and principles to support fully policies of MDA.

(1) Australian Maritime Identification System

On 14 December 2004, Australia’s Prime Minister announced the institution of a ‘Maritime Identification Zone’ (MIZ) as part of Australia’s effort to strengthen its offshore maritime security.⁸³ The creation of this zone, extending 1,000 nautical miles from Australia’s lengthy coastline, was to enable a Joint Command, comprising of the Australian Defence Force and the Australian Customs Service, to identify vessels (including their crew, cargo, and course of journey) seeking to enter Australian ports.⁸⁴ The provision of this information was viewed as a means of enhancing the effectiveness of civil and military maritime surveillance, particularly in protecting offshore oil and gas facilities from terrorism.⁸⁵ In the MIZ, information would not only be sought from port-bound vessels entering this zone, but upon entering Australia’s EEZ ‘the aim [would] be to identify all vessels, other than day recreational boats’.⁸⁶

The declaration of the MIZ immediately attracted attention from Australia’s neighbours, as the maritime zones of New Zealand, Indonesia, Papua New Guinea, New Caledonia, and Timor Leste would have all overlapped with the MIZ. Initially, New Zealand voiced concerns that the new zone would stretch into the territorial waters of New Zealand’s South Island.⁸⁷ After discussions with Australia, New Zealand announced that the request for information in the MIZ would not be inconsistent with pre-existing regulations that vessels provide coastal authorities with certain information 48 hours prior to reaching port.⁸⁸ New Zealand already had comparable requirements in place and noted that the 48-hours notice would be equivalent to a 1,008 nautical mile zone for a ship travelling at 21 knots.⁸⁹ Strong opposition was voiced in Indonesia, where a spokesman for the Foreign Minister commented that the MIZ would be a violation of Indonesian sovereignty and was in contravention of international law.⁹⁰ Even states in the region outside the reach of the MIZ questioned Australia’s authority to institute the new zone.⁹¹