AUKUS: The Regulation of the Ocean and the Legal Dangers of Working Together


On 16 September 2021, the leaders of Australia, the United Kingdom (UK), and the United States (US), announced the AUKUS arrangement, a security agreement which provides a framework for nuclear-powered submarine technology to be shared by the US and the UK with Australia, as well as other forms of new military technology. This article explores the legal im-plications of this alliance and the increase in technological sharing and maritime cooperation it promises. It first provides an overview of the AUKUS arrangement, situating it within the long history of cooperation be-tween these three countries. It then considers how international law regu-lates the sharing of maritime military technology, contrasting the significant constraints on sharing nuclear technology with the minimal restrictions on sharing non-nuclear technology. Lastly, the legal implications of States working closely together on the ocean are addressed. While there might be military and strategic advantages to this close collaboration, when and how States might be complicit in the international wrongs of partner States and the challenge that can be posed by legal interoperability are explored.


Introduction*
On 16 September 2021, the leaders of Australia, the United Kingdom (UK), and the United States (US), announced the AUKUS arrangement: "an enhanced trilateral security partnership" with a focus on the Indo-Pacific,1 which, most significantly, provides a framework for nuclear-powered submarine technology to be shared by the US and UK with Australia.2The acquisition of nuclear-power technology for a military purpose by Australia, a non-nuclear weapons State, raises a number of questions around the legal obligations regarding nuclear non-proliferation3 as well as the commitment in the Treaty of Rarotonga for a nuclear-free South Pacific.4AUKUS, however, promises more than just the sharing of nuclear submarine technology.The three States also commit to expanding technology transfer and developing joint maritime capabilities on a wider scale, saying they will "embark on further trilateral collaboration … to enhance our joint capabilities and interoperability" in "cyber capabilities, artificial intelligence, quantum technologies, and additional undersea capabilities."5The AUKUS deal is one sign of what is likely to be a developing trend: the vast expanse of ocean in the Indo-Pacific, as well as the diplomatic tensions, is likely to push States to rely on new technologies to achieve their strategic objectives.
This article will explore some of the legal implications for Australia, the US, and the UK with the increase in technological sharing and enhanced maritime cooperation promised by the AUKUS alliance.It first provides an overview of the content and context of the AUKUS arrangement, noting that as the full details are still being negotiated between the US, the UK, and Australia much remains ambiguous.It will situate AUKUS within the long history of cooperation between these three countries as military allies and members of the Five Eyes intelligence-sharing network.It will also provide a broader picture of tensions about use of the ocean in the Indo-Pacific and explore the role that law (and lawfare) has played in these tensions.
The discussion will then turn to some of the legal risks of the enhanced relationship envisaged by the AUKUS arrangement.It considers how international law regulates (or fails to regulate) the sharing of military technology used on and in the ocean.It will set out the significant constraints on sharing nuclear technology and consider how this applies to the nuclear submarines promised to Australia.In contrast, it will show that international law has very little to say about the sharing by States of non-nuclear technology relating to other seafaring and undersea military activities, such as those enabled by autonomous technologies, equipped with quantum sensors or computing, and supported by cyber technology.
Lastly, the legal implications of States working closely together on the ocean are addressed.The AUKUS deal seems to envisage much closer operational cooperation among the three countries, not only relying on the same raw intelligence to make decisions (as they do now), but leveraging new maritime technologies to operate seamlessly alongside one another.While there might be military and strategic advantages to this close collaboration, this article will explore when and how States might be complicit in the international wrongs of partner States and the challenge that can be posed by legal interoperability.

If the Past is Any Guide, AUKUS Will Be Longstanding and Close
The AUKUS "enhanced trilateral security partnership" facilitates the acquisition by the Australian Navy of nuclear-powered submarines with the support of the US and UK.This initiative has been politically and diplomatically controversial, in part because it resulted in Australia cancelling a 2016 contract with the French for diesel-powered submarines.6While the planned Australian acquisition of nuclear-powered submarines dominated the headlines, AUKUS is intended to be about a wider range of technologies.Indeed, the announcement said that the arrangement would result in "deeper information and technology sharing" and "deeper integration of security and defence related science, technology, industrial basis and supply chains."7This point has been made a number of times.In a joint statement on 16 September 2021, Australia's then-Prime Minister Scott Morrison and Defence Minister Peter Dutton noted "AUKUS will focus on cyber capabilities, artificial intelligence, quantum technologies, and additional undersea capabilities."8Similarly, the United States Secretary of State spoke of "strengthening our joint capabilities and interoperability in a number of key areas: cyber, [artificial intelligence], quantum technologies, additional underseas capabilities."9More recently, during speeches as Defence Minister in November 2021 and March 2022, Minister Dutton again noted this range of other areas of interest and how one benefit of AUKUS would be to ease the import and export control restrictions between the partnership countries.10On 6 April 2022, it was announced that AUKUS would also involve "trilateral cooperation on hypersonics and counter-hypersonics, and electronic warfare capabilities,"11 although very little information is currently available on what this will entail.While Australia recently had a change of government, with the Australian Labour Party (ALP) replacing the conservative Coalition government at the May 2022 federal election, there is unlikely to be any major changes in approach as the AUKUS arrangement was supported by the ALP while in opposition.12It is unsurprising that this focus on technological sharing comes in an agreement focused on the maritime sphere.While for quite some time naval strategy has been dominated by capital ships like aircraft carriers, this is changing.The military value of uncrewed and autonomous systems in the naval domain will have a substantial impact on military activities at sea.In the short term, the capabilities of militaries to surveil and patrol maritime spaces will be significantly increased.In the future, uncrewed maritime devices are likely to play a key role in all aspects of armed force at sea, and furthermore, it is likely that at least some of these devices will act in concert with other devices from several States, cooperating and "deciding" on actions together.
This technological transformation will take the sharing of technology and information to new levels, which has long been an aspect of the military operations of alliance partners.Sharing military platforms, data standards, and underlying programming will make integration between allies easier,13 and could make it possible for at least some of these devices to act in concert with other devices from several States, cooperating and "deciding" on actions together.As naval operations in the Indo-Pacific region continue to expand, these shared capacities will become central to ensuring a competitive advantage.New technology could even allow States to utilize the infrastructure and technologies of partner States to increase their capabilities at sea seamlessly, on an ongoing basis, and without asking for prior permission for every mission.
There is much we do not know about how closer collaboration among the three countries will work.AUKUS is still under negotiation, and the press statements given by the leaders of the three countries are repetitive, with the same phrases and descriptions being re-used.Given the subject matter of the agreement-sharing of military technology and operations-it is unclear how much of the final agreement (or agreements) will end up in the public domain.However, the uptick in the number of high-level ministerial meetings suggests that much is being planned and negotiated.This ambiguity makes AUKUS a slippery subject for legal analysis and requires anticipating the likely shape of the future relationship and thinking about its legal consequences.

AUKUS Builds on Deep and Enduring Relationships
One can perhaps see something of what AUKUS will become by looking at the history of the relationships among the three countries.It builds on existing alliances with a long track record of close cooperation: the US and UK's "special relationship;"14 the colonial past of Australia and the UK as clearly exemplified when Australian Prime Minister Robert Menzies allowed British nuclear testing in Australia;15 and in more modern times, Australia's reliance on the US as a security guarantor and its unwavering support of US military activities.16 Along with direct military ties, all three countries are part of the "Five Eyes" network, an intelligence-sharing arrangement among the US, UK, Australia, Canada, and New Zealand.17With origins in the expansion of allied cooperation in signals intelligence (SIGINT) in World War II, it is the oldest formalized intelligence sharing network in the world.18Along with SIGINT, during the Cold War, the Five Eyes countries cooperated in carrying out ocean surveillance, human intelligence, and counter-intelligence.19 Its reach has been expanded through shared software and hardware, including satellites and ground stations.20In Australia, facilities at Pine Gap21 and Nurrungar The vast quantity of information being collected and delivered to the security agencies of the Five Eyes countries goes beyond what any group of people could process by themselves.Given this, it is unsurprising that sharing software is a key aspect of the operation of the network.The Echelon program uses sophisticated computers to intercept, identify, and deliver communications from civilian satellites to analysts on the basis of keywords selected by the member States.24 While the Five Eyes is not the only intelligence sharing group in the world, it is regarded as unique in its "depth, breadth and coherence,"25 a closeness demonstrated by the commitment of all five countries not to target each other for intelligence gathering.Further, while there are sometimes profound disagreements,26 the shared culture, commitment to liberal-democratic values, complementary national interests, and professional trust and confidence built on the long-standing relationship makes it exceptionally close.27But are there risks to this shared vision of the world?Some commentators argue this reliance on US intelligence creates risks for the "junior partners" of the arrangement and could result in policy entrapment.There is a danger that some of the information we are given access to will be deceptive or misleading.Operational cooperation may entail some loss of operational independence.Our agencies must beware of seeming to be in the pockets of their powerful counterparts.Of course, they must avoid being so.Australia's interest does not, and cannot, exactly coincide with that of any other country, no matter how friendly.28 However, sharing intelligence and information is not the same as sharing assessments and analysis.O'Neil observes that even though Canada and New Zealand had access to the same information regarding the purported weapons of mass destruction in Iraq, they decided against participating in the war.29 Furthermore, the assessments by States can differ: Gyngell and Wesley found that Australia's view of developments in Asia often differed from the US perspective.30Being attentive to where there are different national perspectives will help ensure space is retained to hold different positions, and this might be particularly important for Australia as the member of AUKUS in the middle of the Indo-Pacific region and arguably most exposed to the geopolitical tensions there.Perhaps there should also be concern about the risk of "legal" entrapment.If the use of shared intelligence and technology requires accepting certain conclusions about the operation of the law, less powerful partners might be prevented from holding different positions about the legal regime.More will be said on this below.

The Strategic, Military and Legal Competition in the Indo-Pacific Is Increasing
The parties to AUKUS described it as being focused on maintaining the "peace and stability in the Indo-Pacific Region."31This region, going from the east coast of India all the way to western United States, encompasses some of the busiest ocean spaces, such as the South China Sea and the Malacca Strait.It is also the locus of the competition between China, the US, and India, three of the most geopolitically significant States in the world.Along with these big players, there are many other actors, like Australia and the UK, conducting various military operations within it.In fact, the competition in the region was The now defunct deal aimed to develop the partnership between the two countries,32 demonstrating their shared interests in protecting maritime security in and beyond their neighboring maritime zones and Antarctic claims.33 The region has been an increasing focus for the United States.Starting with President Obama's 2011 announcement of "America's pivot towards the Asia Pacific,"34 the US has expanded its military bases in the region, increased its military cooperation with its allies and conducted more naval activity.35Similarly (and unsurprisingly given its geographical position) the Australian government's 2020 Strategic Update to its 2016 Defence White Paper emphasizes that the "Indo-Pacific is at the centre of greater strategic competition, making the region more contested and apprehensive."36The UK's "tilt to the Indo-Pacific" is also part of recent policy, with March 2021 documents noting that by 2030 the UK "will be deeply engaged in the Indo-Pacific."37Even the New Atlantic Charter signed between the US and UK in June 2021 is "now guided by a pivot to the Indo-Pacific."38 The region is routinely host to significant military exercises, including the biennial Rim of the Pacific Exercise with US military and invited forces from 32 R. Fathi, "Why the Australia-France Submarine Deal Collapse Was Predictable," The Conversation, 24 September 2021, available online: <https://theconversation.com/why -the-australia-france-submarine-deal-collapse-was-predictable-168526>.33 Id.

34
K.E.Eichensehr, ed., "Contemporary practice of the United States relating to international law," The American Journal of International Law The heightened tensions that arise from increasing military operations in and political discourse about the region have drawn attention to the questions about who can do what, and where.These are questions for which the application of international law has, at least, some answers.The US, UK, and Australia, like most States, claim that they are supporters of international law and that they comply with their legal obligations.This makes it important to consider how international law constrains (or enables) the kinds of technology, information, and operations that can be shared.We look next to the legal regulations of relevance to sharing technology and then to the legal implications of working together on military operations.Under the NPT, the United Kingdom and United States (as nuclear weapon States) have promised "not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices … or indirectly; and not in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons."72Further, Australia (as a non-nuclear weapon State) has promised "not to receive the transfer … directly, or indirectly [and]  Australia has been clear that the new submarines will be powered by nuclear reactors, not armed with nuclear weapons, and that it does not have any plans for developing nuclear weapons.74Nevertheless, the acquisition of nuclear submarines may still be an issue.There is extensive use in the Treaty of phrases such as "peaceful applications," "peaceful uses," and "peaceful purposes" to describe how atomic energy can be used.In the preamble, as well as numerous articles, the NPT seeks to ensure that these applications are protected, providing that "[n]othing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes."75However, what constitutes "peaceful" purposes, uses, or applications is not set out and is open to a range of interpretations.

Sharing Technology for Nuclear-powered Submarines May Undermine the International Law on Nuclear Weapons
As Cormier observes, "[t]he NPT's silence on the use of nuclear material for non-peaceful, non-proscribed military purposes was not an accident" but instead reflects that at the time of drafting, some non-nuclear weapons States were considering acquiring nuclear-propelled military vessels.76For example, Brazil has an ongoing nuclear submarine program despite being part of several treaties that seek to constrain the take up of States of nuclear technology, for example, it is a party to the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (the Tlatelolco Treaty)77 and has signed the Treaty on the Prohibition of Nuclear Weapons.78Brazil made reservations to the Tlatelolco Treaty and has a safeguards agreement with the International Atomic Energy Agency (IAEA) that reflects its nuclear propulsion ambitions for its submarines.79Brazil is expected to rely on Low-Enriched Uranium to power its submarines.80This limits the application of the Brazilian precedent to Australia.Low-Enriched Uranium is not weapons grade and is subject to As Thakur points out, while the Treaty does not include a prohibition on the transfer of peaceful nuclear technologies, "parties are enjoined to ensure that any transfer or nuclear technology or material conforms to strict non-proliferation measures in order to provide assurance of exclusively peaceful use."83The question of "sharing" has come up previously in relation to Australia's obligations both under the NPT and the Treaty of Rarotonga in relation to the legality of the sale of uranium to India.Concerns were raised that such sale would be a violation of Australia's obligations if India had not concluded the relevant safeguard agreements with the IAEA.84There is clearly some ambiguity about what entails "peaceful purposes" for the purposes of these treaties, but the view that Australia is in violation by selling uranium to a State that is not a party to the NPT is not universal.Robertson argues that the supply cannot be a violation of either treaty as it is "inconsistent with decades of practice under the NPT regime."85 In any event, this question seems even more significant now with the plans for nuclear technology sharing in the AUKUS arrangement.The question of whether the AUKUS arrangement is, at the very least, undermining the objectives of the NPT, is therefore a very real one even if nuclear propulsion for naval vessels is, itself, not in violation of obligations under the NPT.While there is no clear-cut violation of any of the obligations of the AUKUS members in relation to nuclear material, the potential use of highly-enriched uranium to propel a fleet of Australian submarines in the Indo-Pacific region could be argued to be akin to Menzies' acceptance of nuclear weapon testing by Britain in the 1950s as being "synonymous" with Australia's interests without full consideration of the implications for Australia.As Cormier observes, it could risk undermining the "long-held norm against withdrawing material from the IAEA verification regime and set a poor precedent for other non-nuclear weapon States."86It may be that the example of AUKUS encourages other States to find ways to withdraw this very dangerous material from IAEA safeguards.

International Law Has Little to Say on Sharing Non-nuclear Military Technology
International law has much less to say about how non-nuclear military technology is shared between States, with four notable exceptions, for example, the Wassenaar Arrangement and the treaties relating to biological, chemical, and missile technologies.Other than the prohibitions on biological and chemical weapons, these international legal rules are "soft law" instruments, giving States the space to choose how they implement them.As such, they will not pose a significant impediment to the kind of technology sharing envisaged by the AUKUS arrangement.
The 1995 Wassenaar Arrangement was established to promote "regional and international security and stability by promoting transparency and greater responsibility" in transfers of conventional arms and dual-use technologies.87The 42 States that participate in the arrangement (including Australia, the US and UK) have committed to ensuring "that transfers of these items do not contribute to the development or enhancement of military capabilities that undermine these goals."88The arrangement envisages this will be achieved through national export control legislation that allows for licensing authorities to review potential transfers and decide whether it will promote international security.89The parties to the arrangement have agreed, by consensus, on a detailed list of dual-use goods and technologies that sets out detailed technical information about controlled technologies.90While States are not required to adopt export controls for the technologies on the list, it does serve as the reference point for domestic legislation.91 The Wassenaar Arrangement is a soft law instrument that relies on national enforcement, leaving it up to the individual States to determine if and how they operationalize its provisions.92It has several limitations.While domestic export control was originally designed to limit the military risks of the proliferation of weapons, the strict civil-military distinction was "incapable of accommodating rapidly changing geopolitical, military and technological While there are several categories of controlled technologies in the Wassenaar Arrangement dual-use control lists that are relevant to activities on the ocean (Category 6 deals with sensors and Category 7 with navigational equipment), Category 8 is focused on marine technologies.These include, among other things, "unmanned submersible vehicles" that are "designed for deciding a course relative to any geographical reference without realtime human assistance," as well as "systems specially designed for the automated control of motion of submersible vehicles" and the software and technology that allows this to occur.95 While it provides a framework for the control of technology transfer, the affect it has on the kinds of technologies that can be shared among the AUKUS allies is unclear.Besides, any implications will be in domestic law, rather than in international law as the Wassenaar Agreement does not mandate restrictions of a certain form, but rather just sets what technologies should be considered.We can expect that part of the AUKUS negotiations will be ensuring that there are the appropriate domestic law processes and permissions in place to allow for the transfer of technologies between the three countries, although this transfer is likely to be primarily from the United States to Australia and, to a lesser extent, to the United Kingdom.
Other international law instruments and treaties that control the sharing of military technology are less likely to be applicable to what is envisaged under the AUKUS arrangement.There is (happily) no indication that the three States are exploring the possibility of chemical or biological weapons in a way that would make the biological and chemical weapons prohibition treaties relevant.96The Missile Technology Control Regime (MCTR) has perhaps some application to the sharing of hypersonic missile technology.All three AUKUS States have signed up to the MCTR, but like the Wassenaar Agreement it does not impose any legally binding obligations.It is but rather an "informal political understanding among States that seek to limit the proliferation of missiles and missile technology."97The MCTR Annex sets out a list of controlled items that are important for missile development, production, and operation, and it encourages member States to impose export controls on these technologies.98Again, to the extent that the sharing of missile technology was envisaged by the AUKUS arrangement, we can expect that appropriate domestic law instruments will be put into place.
It can be seen from the above that the international legal regulation of the sharing of non-nuclear technologies is minimal.While there are guidelines agreed to between States at an international level that identify technology that should be controlled, how this is implemented is left to the discretion of States.The decisions that are ultimately made about if and how to control technology often reflect an attempt to leverage export controls to "win the geopolitical, economic, and technology race" rather than a principled attempt to stop proliferation.99The close and longstanding alliance among the AUKUS States suggests that these informal, non-binding international law instruments will not be any impediment to sharing of non-nuclear maritime technology.

International Law and the Legal Implications of Sharing Information and Operations
One of the key benefits to sharing technology is that it enables States to work more closely together.The use of computer networks combined with communication infrastructure will allow for more intimate forms of collaboration and, at its most advanced, make it possible for several geographically separated devices to act as one.Where these devices are owned by separate States, it might result in a loss of control by States over their own military hardware.Imagine an uncrewed maritime vehicle operating according to programming designed to support the devices of allies by joining their "swarm" in emergencies.100It is easy to envision the benefits of building in, and maybe automating, the provision of support to ensure it happens as quickly as possible in moments of crisis.
There are some suggestions that this is occurring.In 2020, the US and UK Navy announced plans to go beyond "making the fleets interoperable or integrated," and instead explained they were "aiming for interchangeability in carrier operations, undersea warfare and more."101Similarly, the US Department of Navy's Unmanned Campaign Framework explains that with "sophisticated information exchange and strategic partnerships, interoperability has the potential to evolve into interchangeability, making allied forces a symbiotic deliverer of effect."102 Similarly, a central plank in planning for the Australian Navy has been the concept of "network centric warfare" (referred to as NCW).The Australian Navy's Future Maritime Operating Concept 2025 (published in 2021) identified NCW as a "maritime capability enabler," explaining that NCW treats platforms as nodes of a network that are securely and seamlessly connected.Information is collected, shared, and accessed to produce a common recognised operating picture available to all nodes of the force, which in turn allows for a greater level of situational awareness, coordination, and operational potential.103 A key aspect of NCW for successful operations is effective communication between allied forces and is seen as a "potential fighting edge" in maritime conflicts.104 The Operating Concept 2025 explains that integration within States is vital for ensuring a "seamless force," and that this will require effective exploitation of information technologies and selected adoption of allied standards to ensure interoperability when operating with coalition forces.The maritime force must also develop a high level of interoperability with likely coalition maritime forces and future architectures must provide a cohesive comprehensive system through NCW to achieve complete battlespace awareness and control.105 The sharing of technologies will help overcome some of the key barriers to the interoperability of systems, where all States use the same proprietary interfaces, communication architectures, frequencies, and settings, it will be easier to get the technology to work together.106Maximizing interoperability is key to ensuring that uncrewed maritime vehicles are effective.107 China is also focused on transforming their military on similar lines.Reports suggest that it has been focused on developing its "command, control, communications, intelligence, surveillance, and reconnaissance (C4ISR) infrastructure, which fuse and augment individual weapons systems into a collective whole-a critical enabler and force-multiplier for China's technologically advanced war fighting capabilities."108Chinese military leaders recognize how important flow of information will be in any future conflict.In reviewing Chinese sources on the development of military technology, Pollpeter found China sees the "development of a networked C4ISR system capable of locating and tracking targets and fusing intelligence into a coherent battlefield picture as essential to carrying out the long-range precision strikes necessary to attack Taiwan and keep the U.S. military at bay."109 There are a number of potential international wrongs specifically related to the employment of autonomous maritime technology.These have both legal and practical consequences for States when violated.This is because, at the very least, States have obligations to carry out their activities in good faith110 and to have due regard to others, including under UNCLOS.111Autonomous maritime technologies are currently being used, and are very likely to continue to be used, for collecting information about the ocean.Where presence of the device, or the collection of intelligence, occurs in breach of UNCLOS and customary international law, it could amount to an international wrong.
This risk is addressed below in two stages.First, when an AUKUS State might, through sharing intelligence, technology, or hardware, be complicit in the wrongs of their allies will be considered.Second, the challenge of legal interoperability noting the risk that increased sharing of technology reduces the capacity of allied States to have different legal positions on contentious issues of international law will be addressed.

There is a Risk of Complicity for International Wrongs
Sharing intelligence and operations increases the risk that allied States will be complicit in the wrongdoing of their allies.Article 16 of the Draft Articles on State Responsibility provide that a State which "aids or assists another State in the Commission of an internationally wrongful act" is internationally responsible as long as two criteria are met: first, that it does so "with knowledge of the circumstances of the internationally wrongful act" and second, that it "would be internationally wrongful if committed by that State."112There is clearly complexity to this provision, particularly in relation to the requirement for knowledge of the circumstances of the act.While there is a lack of consensus about aspects of the interpretation of Article 16113 and "[t]he complicity rules of international law may be underdetermined,"114 the planned increase of joint activities means it is something that will be of relevance to the AUKUS partners.
As noted above, in the context of the AUKUS allies the most significant and longstanding form of institutionalized collaboration relates to intelligence collection.This is not, prima facie, a breach of international law: there is no express prohibition on intelligence gathering.Indeed, military reconnaissance during wartime is a lawful method of warfare.115Nevertheless, as Milanovic points out, "[t]he acts of collecting and sharing intelligence may as such be internationally wrongful if doing so would constitute a breach of an international obligation arising from primary rules of international law."116For example, if intelligence is provided with knowledge that it would be used by another State to commit an international wrong, this could amount to complicity as per the Draft Articles on State Responsibility.Furthermore, international law gives States sovereignty over national airspace and their territorial sea that can be breached during intelligence collection.117There are other potential sources of restriction on intelligence collection.The use of certain ocean spaces is limited to "peaceful purposes,"118 a common phrase in international law,119 which could be seen to exclude collection of military intelligence.While it is a minority position,120 some consider non-consensual intelligence collection by other States in breach of the EEZ regime established by UNCLOS as it amounts to a form of "marine scientific research"121 or because it is not encompassed by the freedom of navigation.122At the very least, a State engaging in military surveillance in the EEZ of another State must do so with "due regard" to the legitimate interests of the other State.123 There have been several instances where a State has been held liable for wrongs at sea that could have been enabled by the intelligence provided by another State.For example, in a widely publicized case, Italy was held by the European Court of Human Rights to have violated its human rights obligations by pushing back a migrant vessel because that vessel was in distress and Italy's obligations and human rights jurisdiction had been enlivened by their presence at the scene.124 Klein argues that using aerial drones to detect migrant vessels in the Mediterranean Sea and alerting the local coast guard may be compliant with international laws relating to search and rescue, but where this entails the return to the State they are fleeing, it may breach their non-refoulement obligations under the Convention Relating to the Status of Refugees (Refugee Convention).125She also notes that where multiple States are involved with detecting and returning migrants, it could also result in a State being complicit in the violation of international law.126Given Australia's stated policy of returning migrant vessels to their destination (in apparent disregard of the non-refoulement obligation),127 a contribution by the vessels of the US and UK to this activity could make them complicit in the wrong.Other scenarios where a miscalculation or misinterpretation of the law might amount to an international wrong include when a State commits wrongful interdiction,128 or when naval forces intervene in piracy.129 The potential for legal complexity is only magnified by the involvement of two or more States.Further, this potential harm and confusion over liability is also complicated by the likelihood that many technology and information sharing devices of the navies of the future may well be swarming devices and group together, communicating and interacting autonomously to achieve an objective.The elements of the systems may therefore be dispersed over a large geographic area making the proper application of laws such as UNCLOS, which have very specific application depending on the maritime zone in which the device is operating, difficult to ascertain.
Joint military operations also have the potential to have environmental consequences where military activities in vulnerable environments create ecological risks.Holding States liable for environmental damage to maritime spaces is not a new idea130 and is potentially relevant to all maritime zones.Mukherjee recently noted the need for "the sanctity of the marine ecology [to] be flagged as being of global consequence during naval warfare preparations."131Linking concerns about "climate change and geostrategic ocean governance in the Indo-Pacific," Mukherjee links States obligations from the 2015 Paris Agreement COP21 commitments and Sustainable Development Goals to the fact that "military preparations can and must take cognizance of how to manage and minimize ecological damage, and they must transparently measure their impact and share the resultant data."132The launch of the tracking of military emission data launched around the time of COP26 in late 2021 is one recent example.133 There are very different responses by States, and their armed forces, to environmental issues.As Levaillant observes, although there has been a move towards the inclusion of matters relating to the protection of the environment in some defence policy and strategy (including for its intrinsic value and beyond what is required by international humanitarian law (IHL)), this has "not resulted in any significant change in international cooperation in the area."134While warships and military vessels are entitled to sovereign immunity under UNCLOS,135 the collaboration envisaged by AUKUS might result in the three States being jointly responsible for environmental issues caused by their military activities.State responsibility for loss or damage to the environment is addressed by Article 31 of UNCLOS: The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and regulation of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law.
It is very conceivable that an AUKUS operation could cause harm that fell under this provision.Along with the well-known risk of nuclear technology, devices capable of autonomous navigation and operation could damage important maritime environments and resources.The liability for AUKUS partners when their knowledge aids and assists such violation could place partners at the mercy of decisions they would not have made.
Another area where there may share responsibility for international wrongdoing is if the activities of AUKUS partners cause marine pollution, or other harm to the environment.While military vessels are exempt from the most significant maritime environmental treaty-Article 236 of UNCLOS provides State military and non-commercial vessels do not have to comply with rules on environmental protection, and the International Convention for the Prevention of Pollution from Ships (MARPOL) and its amending protocol does not apply to military vessels136-there are some international law obligations that could be relevant.As noted above, Article 31 of UNCLOS provides that the flag State shall bear international responsibility for "any loss or damage to the coastal State" caused by non-compliance by a warship or other government ship with the laws of the coastal State regulating passage through the territorial sea, or with international law.137In addition, Article 56 of UNCLOS requires States carrying out military activities in the EEZ of another State to (at a minimum) exercise "due regard" to the rights and duties of other States.138 This requires them to consider the impact their activities will have on the rights of the coastal State and to take steps to minimize any potential harm.139 To the extent that the military activities of one of the AUKUS allies failed to have due regard to the rights of coastal States in fishing, environmental protection or mineral exploration in the EEZ, it would amount to an international wrong.Proving a lack of due regard, however, would be a significant challenge in the face of secrecy in military planning.
UNCLOS is not the only source of potential liability.The Antarctic Treaty provides another example where acoustic military pollution, such as that created by active sonar, is proscribed in the Antarctic Treaty Area.140Military activities or maneuvers, testing, or the use of some scanning technologies would constitute an infringement;141 and where one of the devices of one AUKUS partner contributes to the military activities of another in this space, they may be complicit.In other contexts, various human rights instruments (including non-refoulment obligations) could be triggered,142 or perhaps even the obligation under Common Article 1 of the Geneva Conventions of August 1949.This requires States to use the influence that they have in order to take actions to ensure that third States, especially partner States, ensure respect for international humanitarian law.143 International laws on State responsibility are not the only potential legal complication for joint military operations.Domestic laws may have some application.For example, the Danish High Court turned to Danish compensation law when considering whether the Danish government was liable to compensate Iraqi nationals for the assistance by Danish forces of Iraqi and British forces when they subjected insurgent detainees to torture in Iraq in 2004.144However, the question of State responsibility and complicity were "ignored" by the High Court, such that the "judgement cannot be seen as an expression of a domestic court's interpretation of standards in international law."145On appeal, the Danish Supreme Court overturned the decision of the High Court and it now looks like it could be taken to the European Court of Human Rights so some guidance on this issue could be provided.146 The above discussion demonstrates that the legal consequences of working more closely together should be carefully considered by the AUKUS partners.While the potential for complicity occurs in obvious ways, such as a device being used on a mission or activity led by another AUKUS partner that breaches international law, it could also include the provision of intelligence that allows the international wrong to be committed.It must be conceded, however, that given the extensive intelligence sharing that is already occurring, this risk has probably already been factored in by all the parties.
The consequences for any breaches of the obligations discussed here would be varied.The International Court of Justice is the obvious place for States to bring claims against each other, but more subject-specific fora and/or regional fora could be used to address claims arising from reliance on shared information that turns out to be incorrect, or where joint operations have led to joint responsibility.In addition, as demonstrated by the Danish High Court Case mentioned above, domestic jurisdictions may play a role in some disputes where activists use public interest litigation to address issues such as violations of human rights law or environmental protection.

There Are Legal Risks that Come with Legal Interoperability
Joint military operations naturally raise a range of "interoperability" challenges.Working together requires sharing common ways of making decisions, agreeing on thresholds for taking action, and figuring out where the space is for one partner to take a different approach.These challenges in part relate to legal interoperability.As Zwanenburg explains: Legal interoperability is understood here as the ability of the forces of two or more nations to operate effectively together in the execution of assigned missions and tasks and with full respect for their legal obligations, notwithstanding the fact that nations have varying legal obligations and varying interpretations of these obligations.147 While practical interoperability challenges are necessarily at the forefront of military planning prior to joint operations or exercises, overcoming legal interoperability challenges has also long been a part of military planning.Take, for example, Australia's approach to the operations with the United States around the use of cluster munitions and the negotiation of the Convention on Cluster Munitions.148 The interoperability challenges caused by different understandings of international humanitarian law are well-documented.149While all States are party to the four Geneva Conventions of August 1949150 and indeed much of international humanitarian law forms customary international law,151 some differences exist on account of not all States being party to the Additional Protocols to the Geneva Conventions, nor to all of the various different weapons law prohibition and restriction treaties.152In addition to situations where there is a difference in applicable legal obligations, there may be differences in opinion about the preferable interpretation of an obligation shared by both States.153These complexities impact on general force operations and decisions, but perhaps are immediately evident where the person pulling the trigger is operating with a different legal framework to the person "acquiring the target."154The consequences of these complexities for commanders include the practical aspect of only being able to use certain troops for some tasks, as well as the accountability challenges that come about due to the increased risk of State responsibility or individual criminal responsibility should the interpretation of IHL not be shared by a Court deciding on lawfulness.155 However, IHL is not the only legal framework where interoperability can be an issue.When operating in maritime environments, customary law and UNCLOS provide the crucial framework for lawful operations.The risk that States working in concert at sea might have different views on the operation of the law is something that is acknowledged by the Australian Navy's Future Maritime Operating Concept 2025 which notes that "divergences in international legal obligations" impacts on the planning and conduct of allied and coalition operations.156However, this may be less of a risk among the AUKUS partners as it appears that the US, the UK, and Australia share positions on the key legal disputes in the region, that is, when and how the navigational rights enshrined in UNCLOS apply to ocean spaces, and two related issues, the lawfulness of military surveillance in the EEZ of other States and the status of maritime borders in the South China Sea.Nevertheless, it is worth briefly sketching out these legal controversies to help identify if and why differences in legal assessments either currently exist or might emerge in the future.
As Klein observes, the strategic importance of international maritime trade to Australia means it is a major beneficiary of the freedom of navigation regime set up by UNCLOS as it permits movement between export and import markets.157While the navigational rights of commercial shipping has not been directly challenged,158 the navigational rights of warships and other State vessels are more controversial.159UNCLOS makes it quite clear that these ships are entitled to freedom of navigation through the territorial waters of other States on par with commercial ships.160Despite this apparent clarity in UNCLOS and as a matter of general international law,161 some States maintain a requirement for notice or permission for warship passage.162In addition and as noted above, there is also an ongoing dispute about what military activities are permitted in the EEZ of another State.
The AUKUS partners seem to have the same perspective on these three issues.All have been involved in freedom of navigation operations in the South China Sea.163For example, in June 2022 the Australian Defence Minister revealed that an Australian maritime surveillance aircraft was harassed by a Chinese fighter jet while carrying out routine surveillance over international waters.164In his comments explaining the event, Defence Minister Richard Marles said: The South China Sea matters to Australia.It matters to Australia because most of our trade traverses the South China Sea.And so, as a nation, we are deeply invested in the UN Convention on the Law of the Sea, we are deeply invested in the rights of freedom of navigation in the South China Sea.165 International law plays a key role in defending this position.166In January 2022, the US Department of State published a paper assessing, and rejecting, China's expansive maritime claims based on the use archipelagic baselines in the South China Sea.167This technical and comprehensive analysis of the consistency of China's position with customary international law is part of a "multi-faceted" approach by the US to protect the freedom of navigation in the region.168 While it appears that the AUKUS partners share views about some of the fundamentals of the operation of the law of the sea and its application in Asia (particularly the South China Sea), there are some areas where there might not be the same consistency.For example, there could be other maritime boundaries where the interests of the three States may not be aligned.Several States in the Indo-Pacific have strayed from the strict application of UNCLOS, or the archipelagic status of a State might become controversial.169If this occurs, and the AUKUS partners have different views, care will have to be taken to ensure that these differences are respected in any joint operations.
It is less clear whether AUKUS partners have the same vision for how human rights obligations apply at sea.As noted above, Australia has a policy of interdicting vessels attempted to make an "irregular" arrival in Australian territory and towing them back to Indonesia's territorial sea, sometimes replacing the vessels with life rafts.170This policy could be seen to contravene international law,171 including the search and rescue obligations from the International Convention for the Safety of Life at Sea as well as international human rights law and the Refugee Convention.172Australia has gone so far as to provide uncrewed aerial vehicles to Sri Lanka to be used countering people-smuggling operations.173As Klein notes: This surveillance raises a range of legal questions as to whether the use of maritime autonomous vehicles can fully meet search and rescue obligations and whether the State supplying such information could still be responsible for violating human rights.174Differences could also emerge in relation to other controversies, such as the appropriate way to treat uncrewed maritime vessels.For example, it might be that the States reach a different conclusion about whether uncrewed maritime vessels are "ships" entitled to navigational rights under UNCLOS.Or, they might have different perspectives on when the use of force is permissible to interdict or destroy a hostile vessel and the places where this can occur.Ideally, the AUKUS arrangement will allow space for these different perspectives.Insofar as the AUKUS provisions on technology sharing allows for devices to be automatically joined in surveillance or military activities, care will have to be taken to ensure that the three AUKUS partners agree on the relevant legal framework as this will help determine the appropriate response.Military decision-makers and lawyers that advise them should also consider if and how interoperability should be limited in particular missions and the different sorts of questions that enduring or continuous activities pose.Where devices will be joined into the networks and systems of other States, care should be taken that where there is not a shared view of maritime borders, there is a method for dealing with the inconsistency.

Conclusion
The developing nature of the AUKUS arrangement, and the ambiguities it entails, makes any attempt to analyze the challenges it poses to the operation of international law somewhat speculative.Much will depend on what technology is shared, the manner that this sharing occurs, and how closely the militaries of the three States work together.The AUKUS partners are no strangers to working together in training, on operations, and to sharing resources and information.There is clearly great military and strategic value in them doing so.
Nevertheless, as discussed above, some of the legal issues that might arise in relation to the sharing of maritime technology and collaborating on maritime operations can be identified.The proliferation of information collection and the speed of exchange between partners and decision-making alone make this evident.The use of technology that might, for example, be embedded with visions of the international law of the sea that are not shared by all States will make it difficult to separate out the legal identity and obligations of military operators.It must be remembered that it is not only the law that has to "keep up" with changing technology; technology must also be used according to the existing law.States should not allow new challenges to justify deviations from well-developed and effective legal regimes, like that set out in UNCLOS.In relation to the sharing of technology, international law has much more to say about sharing nuclear technology than the sharing of other kinds of military hardware (and software) envisaged by the AUKUS arrangement.While Australia acquiring nuclear submarines may not be a clear breach of the NPT or the Treaty of Rarotonga, it does risk undermining the controls that have been developed to prevent nuclear proliferation.The AUKUS partners should consider how this risk could be offset through a degree of transparency or other reassuring interventions.In contrast, given the non-binding nature of the international agreements relating to the sharing of other kinds of military technology, the legal controls of the sharing of the other technologies covered by AUKUS are likely to predominantly come from domestic law.Furthermore, given the direction this technology transfer is likely to occur, US domestic law will be the most significant.It seems highly likely that this is something that will be examined by the negotiators settling on the final structure and contents of the arrangement.
The legal issues relating to sharing operations are more apparent.Two issues have been focused on here: 1) the risk of complicity when devices and information are shared between States, and 2) the interoperability challenges where States have differing views about the operation of the law.These risks are somewhat offset by the extent to which the three AUKUS partners share legal positions, particularly in relation to maritime navigational rights and borders.Nevertheless, differences may emerge over time.There could be some boundary disputes where the three States are not aligned, or there could be differences in relation to particular maritime activities, such as the treatment of migrants fleeing persecution detected at sea.Care must be taken to ensure that the technology shared, and the way that the operations occur, allow space for these different positions.
It should be remembered that legal obligations of one State are not necessarily synonymous with partner States, even where they have a "special relationship," long-standing relations, and generally aligned views on international law.As has been noted, decision-makers will have to be attentive to ensure that the three AUKUS partners agree on the relevant operating framework and that this meets all three States' legal obligations.There will be great value in encouraging States to put their views on the table in the ongoing discussions about legal risks and tensions as new technologies play an enhanced role on our ocean.The legal regime regulating the ocean will only be as strong as State practice makes it.Downloaded from Brill.com09/16/2023 03:44:15AM via free access The sharing by the US and the UK of nuclear submarine technology with Australia demonstrates how significantly the strategic calculus has changed in the Indo-Pacific in the last decade.64It brings Australia into a long-standing partnership between the US and the UK.The deal to share the technology was struck between the two States in 1958,65 and it has not been extended to anyone else until now.66It is not widely held technology.Only the US, the UK, France, China, Russia, and India deploy nuclear submarines.Canada and South Korea have given up their attempts to acquire the technology, and Brazil's nuclear submarine program, started in the 1970s, is still underway.67Two legal instruments that might constrain how this technology is shared with Australia are particularly important.The first is the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).The NPT was concluded in 1968 and entered into force on 5 March 1970.68Almost all nations are party to the NPT, including the three AUKUS States.69Australia became a party in 1973, the UK in 1968 and the US in 1970.70The basis of the Treaty was that nuclear weapon States (those in possession of them at the time of the treaty negotiations: the United States, USSR, United Kingdom, China, and France) exchange their right to retain their nuclear weapons (pending good faith negotiations on effective measures to nuclear disarmament),71 with an obligation to provide assistance with the development of peaceful nuclear technology by the non-nuclear weapons States.
Marles, address, IISS 19th Shangri-La Dialogue, Singapore, 11 June 2022, available online: <https://www.minister.defence.gov.au/minister/rmarles/speeches/address-iiss-19th-shangri-la-dialogue-singapore>.13 "Australia, UK, and US Sign Nuclear Propulsion Info Sharing Agreement," Naval Technology, 23 November 2021, available online: <https://www.naval-technology.com/news/australia-uk-us-nuclear-information-sharing-deal/>.Downloaded from Brill.com09/16/2023 03:44:15AM via free access 63m,39 the Cope North humanitarian assistance and disaster relief exercise,40 and Exercise Talisman Sabre, a bilateral combined training activity between the US and Australia.41Forarecentexample,theUS Marine Corp, US Navy and Japanese Self-Defence Force were reported to have been engaged in an "island-hopping" exercise in February 2022 in the Philippine and East China Seas.42Similarly,NobleFusion 2022 saw US and Japanese forces conduct activities including "sea-denial" and the seizure of "key maritime terrain."43TheUK'sRoyalNavyhasrecently announced a roving presence in the region.44UKmilitaryexercises in the area include exercises with the Thai navy in the Andaman Sea45 and UK Carrier Strike Group exercises in the Philippine Sea.46While these changes have been in train for well over a decade, in the last few years tension has sharply increased.This is partly due to the new assertiveness of China in pursuing what it sees as its interests in the region.47ChinesetheSouthChinaSea region of the western Pacific Ocean has been increasing, and in particular the building and subsequent militarization of several islands in the South China Sea.48A recent example of these tensions is the security deal between the Solomon Islands and China that caused consternation in Australia49 and the United States.50Similarly, the possibility that Pacific Island countries would sign a region-wide trade and security deal with China led to an intensive diplomatic effort by Australia and New Zealand to prevent it from occurring.51Whilethiswiderdealwas rebuffed, China did manage to secure a series of bilateral deals.52Italsoincludestenseinteractions between militaries: in June 2022 it was reported that an Australian P-8 maritime surveillance aircraft was intercepted by a Chinese J-16 fighter aircraft over the South China Sea and forced to carry out a "dangerous manoeuvre."53Onlyafewmonthsearlier, in February 2022, it was reported that a Chinese Army Navy vessel accompanying a Chinese ship in the Torres Strait fired a laser at an Australian Department of Defence P-8A Poseidon Plane.54Thefriction between the different players in the Indo-Pacific can also be seen in how they interpret and use international law and its mechanisms.55Therehasbeen a long-running (and well-known) dispute between China and its maritime neighbors about who "owns" the South China Sea.China argues that due to legally recognized "historical rights" it can claim up to the "nine-dash line," beyond what would normally be permitted under the United Nations Convention on the Law of the Sea (UNCLOS) regime.56This is contested by the Philippines and Vietnam and has been the subject of proceedings in the Permanent Court of Arbitration at The Hague.57The US, UK, and Australia, as well as other allies, have been conducting freedom of navigation exercises through these contested ocean spaces, explicitly describing them as being an exercise of legal entitlements of navigation rights set out in UNCLOS.58Therehavealso been disputes about if and how to distinguish marine scientific research from military surveillance, and whether the latter is prohibited in the exclusive economic zone (EEZ) of another State without that State's consent.59AUKUSshouldbe understood in the light of this strategic, military, and legal competition.Masuhr and Schepers assert that "AUKUS signals a clear recognition by all three states that Chinese actions pose a systemic and military challenge to their interests and the existing regional and global security order."60Chinahas been critical of AUKUS and has expressed concern over the impact it will have in the region.61AUKUS is of course not the only forum for discussion about security in the Indo-Pacific region that AUKUS members are party to.The Quadrilateral Security Dialogue, involving Japan, India, the United States and Australia, issued a joint statement in March 2021 speaking to the ambition of a "free, open, Indo-Pacific."62Significantlythe history of the Dialogue, which began in 2007, is that it was pulled back during Australian Prime Minister Kevin Rudd's tenure due to concerns about America's approach to China and only revived in 2017 "as concerns about China's military expansion in the South China Sea" took hold.63 116, no. 1 (2022): 115-119.35 P. Davidson, "The United States' Interests in the Indo-Pacific," speech given at the Lowy Institute, Sydney, 13 February 2020, available online: <https://www.pacom.mil/Media/Speeches-Testimony/Article/2085461/the-united-states-interests-in-the-indo-pacific/>.36 Australian Government: Department of Defence, 2020 Defence Strategic Update (Canberra, 2020), p. 3, available online: <https://www.defence.gov.au/about/publications/2020-defence-strategic-update>.37 Cabinet Office, Global Britain in a Competitive Age: The Integrated Review of Security, Defence, Development and Foreign Policy, Policy Paper No. CP 403 (UK: APS Group, updated July 2021), p. 6, available online: <https://www.gov.uk/government/publications/global-britain-in-a-competitive-age-the-integrated-review-of-security-defence-deve lopment-and-foreign-policy>; see also, L. Brooke-Holland, "Integrated Review 2021: The Defence Tilt to the Indo-Pacific October," Research Briefing No. 09217 (UK: House of Commons Library, October 11, 2021), available online: <https://researchbriefings.files.parliament.uk/documents/CBP-9217/CBP-9217.pdf>.38 A. Brotman, "Opinion-A New Atlantic Charter for a New Age of Competition," E-International Relations (website), 15 June 2021, available online: <https://www.e-ir.info/2021/06/15/opinion-a-new-atlantic-charter-for-a-new-age-of-competition/>.Downloaded from Brill.com09/16/2023 03:44:15AM via free access the Pacific 39 "RIMPAC 2020," Royal Australian Navy, available online: <https://www.navy.gov.au/operations-and-exercises/rimpac-2020>.40 See, for example, the 2022 iteration: B. Marchant, "Cope North Strengthens Ties," Australian Government, Defence News, 25 February 2022, available online: <https://news .defence.gov.au/international/cope-north-strengthens-ties>.41 "Talisman Sabre 21," Australian Government, Department of Defence, available online: <https://www.defence.gov.au/exercises/talisman-sabre-21>.42 See D. Mahadzir, "Navy, Marines Drill with Japanese Forces in Test of New Island-Hopping Concept," USNI News, 21 February 2022, available online: <https://news.usni.org/2022/02/21/navy-marines-drill-with-japanese-forces-in-test-of-new-island-hopping-concept>, although admittedly the focus here was interoperability between US services and assets, the involvement of the Japanese added an additional element.43 E. Lundquist, "Noble Fusion 2022 Prepares Maritime Forces for Distributed Maritime Operations in the Pacific," Sea Power, 17 February 2022, available online: <https://sea powermagazine.org/noble-fusion-2022-prepares-maritime-forces-for-distributed-maritime-operations-in-the-pacific/>.44 N. Hakirevic Prevljak, "Royal Navy Patrol Vessels Begin Indo-Pacific Deployment," Naval Today, 8 September 2021, available online: <https://www.navaltoday.com/2021/09/08/royal-navy-patrol-vessels-begin-indo-pacific-deployment/>.45 British Embassy Bangkok, "The Royal Navy Frigate HMS Richmond Takes Part in a Successful Maritime Exercise in the Andaman Sea with HTMS Kraburi of the Royal Thai Navy," GOV.UK, 29 July 2021, available online: <https://www.gov.uk/government/news/the-royal-navy-frigate-hms-richmond-takes-part-in-a-successful-maritime-exercise -in-the-andaman-sea-with-htms-kraburi-of-the-royal-thai-navy>.46 B. Wallace and the Ministry of Defence, "UK Carrier Strike Group to Exercise with Indo-Pacific Partners," 19 July 2021, available online: <https://www.gov.uk/government/news/uk-carrier-strike-group-to-exercise-with-indo-pacific-partners>.47 M. Shoebridge, What Is AUKUS and What Is It Not? How Does It Connect to the Quad, the Sydney Dialogue, ASEAN and Indo-Pacific Security?, Australian Strategic Policy Institute, 8 December 2021, available online: <https://www.aspi.org.au/report/what-aukus-and-what-it-not>. Downloaded from Brill.com09/16/2023 03:44:15AM via free access military activity in 48 The Associated Press, "China Has Fully Militarized Three Islands in South China Sea, US Admiral Says," The Guardian, 21 March 2022, available online: <https://www.theguardian.com/world/2022/mar/21/china-has-fully-militarized-three-islands-in-south-china-sea-us-admiral-says?msclkid=e25fe423b3af11ecaddeb60c8875852b>.49 "Solomon Islands: China Deal in Pacific Stokes Australian Fears," BBC News, 20 April 2022, available online: <https://www.bbc.com/news/world-australia-61158146>.50 J.Power, "'Very Troubling': Emails Reveal US Alarm over China-Solomons Pact," Al Jazeera, 21 June 2022, available online: <https://www.aljazeera.com/economy/2022/6/21/very-troubling-emails-reveal-us-alarm-over-china-solomon-pact>.51 "Pacific Nations Walk Away from Region-Wide Trade and Security Deal with China," ABC News, 30 May 2022, available online: <https://www.abc.net.au/news/2022-05-30/pacific-nations-shelve-region-wide-china-deal/101109614>.52 The Associated Press, "China Falls Short on Big Deal in South Pacific but Finds Smaller Wins," NPR, 30 May 2022, available online: <https://www.npr.org/2022/05/30/1102028311/china-falls-short-on-big-deal-in-south-pacific-but-finds-smaller-wins>.53 D. Hurst, "'A Dangerous Act': How a Chinese Fighter Jet Intercepted an RAAF Aircraft and What Happens Next," The Guardian, 7 June 2022, available online: <https://www.55T. Davenport, "'Lawfare' in the South China Sea Disputes," The Interpreter, 1 April 2022, available online: <https://www.lowyinstitute.org/the-interpreter/lawfare-south-china-sea-disputes>; P.N.M. Trang, "Lawfare in the South China Sea: The Latest US Moves," Downloaded from Brill.com09/16/2023 03:44:15AM via free access USALI Perspectives 2, no.15 (2022), available online: <https://usali.org/usali-perspectives-blog/lawfare-in-the-south-china-sea-the-latest-us-moves>.56 See Z. Gao and B. Bing Jia, "The nine-dash line in the South China Sea: History, status, and implications," American Journal of International Law 107, no. 1 (2013): 98-123.57 N. Hong Thao and N.T.L. Huong, "The South China Sea Arbitration Award: 5 Years and Beyond," The Diplomat, 12 July 2021, available online: <https://thediplomat.com /2021/07/the-south-china-sea-arbitration-award-5-years-and-beyond/>.58 M. Valencia, "Mixed Military Messaging in South China Sea," Asia Times, 13 60 N. Masuhr and N. Schepers, "AUKUS: Below the Surface," CSS Analyses in Security Policy no.300, March 2022, available online: <https://css.ethz.ch/content/dam/ethz/special-interest/gess/cis/center-for-securities-studies/pdfs/CSSAnalyse300-EN.pdf>.61 Eichensehr, n. 34 above, p. 165.Downloaded from Brill.com09/16/2023 03:44:15AM via free access accessible, diverse and thriving not to manufacture or otherwise acquire … and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices."73July 1968, 729 United Nations Treaty Series 161 [NPT].69 Those who are not include four nuclear weapons States, that is, India, Pakistan, Israel, and North Korea and South Sudan.North Korea withdrew from the treaty in January 2003, however, there is some controversy over the legality of that withdrawal.70 "Treaty on the Non-Proliferation of Nuclear Weapons," UN Office of Disarmament Affairs, available online: <https://treaties.unoda.org/t/npt>.71 See further NPT, n. 68 above, Article 6. See further, regarding the good faith negotiation and the original interim nature of the NPT, E. Massingham, "The Obligation to Respect and to Ensure Respect in all Circumstances Pursuant to Common Article 1 of the Four Geneva Conventions of August 1949 and Additional Protocols I and III: An 67 See further Cormier, n. 3 above; S. Karbassi, "Legal Mechanisms of AUKUS Explained," Lawfare, 24 September 2021, available online: <https://www.lawfareblog.com/legal-mechanisms-aukus-explained>.68 Treaty on the Non-Proliferation of Nuclear Weapons, 1 Australian Weapons Law Perspective," (Ph.D. dissertation, University of Queensland, 2016), pp.132-134, available online: <https://espace.library.uq.edu.au/view/UQ:388644>. 72 NPT, n. 68 above, Article 1. 73 Id., Article 2. Downloaded from Brill.com09/16/2023 03:44:15AM via free access In contrast, Australian submarines will likely be powered with weapons grade High-Enriched Uranium.The second legal instrument relevant to sharing nuclear technology is the 1985 South Pacific Nuclear Free Zone Treaty, known as the Treaty of Rarotonga.81Australia is a State party to the Treaty, having deposited its instrument of ratification on 11 December 1986.The Treaty establishes a Nuclear Weapon Free Zone to adjoin those areas covered by the Tlatelolco Treaty and the Antarctic Treaty.82Article 3 provides that Each Party undertakes: (a) not to manufacture or otherwise acquire, possess or have control over any nuclear explosive device by any means anywhere inside or outside the South Pacific Nuclear Free Zone; (b) not to seek or receive any assistance in the manufacture or acquisition of any nuclear explosive device; (c) not to take any action to assist or encourage the manufacture or acquisition of any nuclear explosive device by any State.
80 "Brazil Might Get Nuclear-Powered Submarines Even Before Australia," The Economist, 27 September 2021, available online: <https://www.economist.com/the-americas/brazil-might-get-nuclear-powered-submarines-even-before-australia/21805075>.Downloaded from Brill.com09/16/2023 03:44:15AM via free access different safeguards by the IAEA.81 South Pacific Nuclear Free Zone Treaty, 6 August 1985, 1445 United Nations Treaty Series 177.82 The Antarctic Treaty, 1 December 1959, 402 United Nations Treaty Series 71.Downloaded from Brill.com09/16/2023 03:44:15AM via free access the global security scene."93It was modernized by expanding coverage to dual-use items, these are harder to define appropriately.Furthermore, the way the list is developed means it struggles to keep up with rapid technological developments that can lead both to the overregulation of certain technologies through the use of overbroad categories94 and missing others.