Australia would soon acquire conventionally-armed, nuclear-powered submarines (SSN) under the Australia-UK-USA (AUKUS) enhanced security partnership . The general impression is that the Australian initiative, dubbed as “SSN-AUKUS” capability, has been triggered by the growing Chinese military threat in the region and that Canberra should build sufficient deterrence against any adventurism by Beijing which jeopardizes Australia’s “interest in protecting trade and freedom of navigation and flight in the South China Sea”. Australian Defence Minister, Richard Marles has defended the “SSN-AUKUS” stating that the primary intent is to “make our contribution to the stability of the region, to the collective security of the region” by “fill[ing] the “capability gap” between the retirement of Australia’s diesel-electric Collins-class submarines and the entry into service of British-designed, Australian-built nuclear-powered submarines from the 2040s”.

The “SSN-AUKUS” has been widely reported, discussed and commented upon by the global strategic community and policy pundits alike particularly in Southeast Asia and China. They are now joined by the legal chorus and in this context at least one legal regime and three treaty commitments by Australia merit deliberation.

First the 1982 United Nations Convention on the Law of the Sea (UNCLOS) or the “constitution of the oceans”. Among the “SSN-AUKUS” partners, Australia and the UK have ratified the 1982 UNCLOS while the US has only signed the Convention. The partners may have difficulty in adopting a common position on issues of UNCLOS particularly in the context of nuclear propelled platforms. At another level, some Indonesian government officials believe that Indonesia should consider “prohibiting the passage of foreign submarines through its archipelagic waters if they are engaged in activities related to war or preparation of war or non-peaceful activities”. This may be in contradiction to Article 20 of the UNCLOS which stipulates that “In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag.” In conjunction, under the “right of archipelagic sea lanes passage”, ships are to navigate continuously and expeditiously in their “normal mode”. Given that submerged is the “normal mode of passage” for submarines, such platforms may navigate submerged and therefore this right “cannot be impeded or suspended” by the archipelagic state for any purpose.

Second is about the Southeast Asia Nuclear Weapons Free Zone (SEANWFZ) Treaty signed by ASEAN member states on 15 December, 1995 as a commitment to preserve the ASEAN region as a region free of nuclear and other weapons of mass destruction. In many ways, the AUKUS runs counter to the SEANWFZ which lies at the foundation of the ASEAN’s pursuit of preserving a nuclear-free area. China has come in full support of the SEANWFZ and Foreign Minister Wang Yi, in a phone conversation with the Malaysian and Bruneian foreign ministers, cautioned that AUKUS will make the South Pacific Nuclear Free Zone Treaty a “mere scrap of paper”’ further, “other countries may follow suit to wage a new round of arms race or even cross the nuclear threshold”. It is to be noted that China was the first among the five nuclear weapon countries to support the SEANWFZ Treaty and announced its willingness to sign a protocol to build a nuclear-free Southeast Asia. Unlike China, the US believes that the text of the Treaty and Protocol “does not meet all fundamental US concerns and thus refused to give serious consideration to signing the Protocol”.

Third is the 1971 ASEAN Declaration on the Zone of Peace, Freedom and Neutrality (ZOPFAN) and the 1976 Treaty of Amity and Cooperation (TAC) that aim to uphold regional peace and out rightly reject the threat or use of force. In this context the Indonesia’s Ministry of Foreign Affairs said in a statement that they were “closely following the security partnership of AUKUS, particularly the announcement on the pathway to achieve AUKUS critical capability.” An indirect from Jakarta has admonished Australia and reminded Canberra to be a part of and take on the responsibility for “maintaining peace and stability in the region”.

Fourth is about the Non-Proliferation Treaty (NPT) and International Atomic Energy Agency (IAEA) regulations. The Indonesian Ministry of Foreign Affairs tweeted “Indonesia expects Australia to remain consistent in fulfilling its obligations under the NPT and IAEA Safeguards, as well as to develop with the IAEA a verification mechanism that is effective, transparent and non – discriminatory”.  

Meanwhile, Indonesian ambassador to Australia conveyed his country’s concern that the AUKUS also involves hypersonic weapons which could result in unregulated “hypersonic arms race”. It is his belief that it is a “destabilising factor and hamper regional economic progress because it’s very expensive”. Furthermore, Tubagus Hasanuddin, a senior member of the ruling party, has cautioned that the AUKUS is “definitely … related [to] head-to-head [rivalry] with the Chinese maritime powers. It means it is not a peaceful means so that Indonesia will reject [them sailing through its waters].”

Australia is engaged in diplomatic blitzkrieg to not only assure but dispel fears about “SSN-AUKUS” in Indonesia, Malaysia and Pacific island nations. Also, it remains to be seen whether Indonesia will allow Australian submarines in its waters.

Dr Vijay Sakhuja is Associated with Kalinga International Foundation, New Delhi.