In 1985, a landmark report by the UN Secretary General for the General Assembly titled “Study of the Naval Arms Race” was released with high expectations that important aspects would be taken forward with the entry into force of the United Nations Convention of the Law of the Sea (UNCLOS). These included ‘naval nuclear disarmament efforts within the overall objective of halting and reversing the arms race in general, and how the navy can contribute towards ocean governance for the peaceful use of the seas and its resources, including for future generations and for the benefit of (hu)mankind.’1 In this policy brief we explore and surface how 40 years later naval and defence interests have accelerated to occupy and carve up the ocean, turning it into a hyper-militarized and securitized space and spurred on a nuclear arms race, with little public awareness, much less scrutiny in public discourses on effective disarmament measures in the ocean where future warfare will primarily take place.

Today, the dominant interpretation of UNCLOS by military as well as naval and defence experts in relation to military activities in the ocean is that all states have an absolute right under international law to conduct military activities beyond their own territorial waters, including in the EEZs of other States. In Areas Beyond National Jurisdiction (ABNJ) militaries of all states have unfettered rights, albeit with some general restrictions which we outline in this paper. Notably only 17 states2 have sought to expand their control over their Exclusive Economic Zones (EEZs) by imposing restrictions on foreign military operations and other activities such as (1) prior notice or prior consent to conduct military activities; (2) application of domestic environmental laws (resource-related concerns); (3) restrictions on military collection of marine data (military surveys) and hydrographic surveys; and (4) restrictions on non-peaceful purposes, such as intelligence, surveillance and reconnaissance operations.3 Such sovereign actions have been deemed illegal by the most powerful states in the world, primarily the US.

This dominant interpretation of UNCLOS provides a glimpse of the scale (from the high seas all the way into EEZs) and scope (from the sub-soil of the deep-ocean right through the water-column to the surface of the ocean) of the carve-out for military and defence interests, and the abandonment of any interest in pursuing discussions around ‘peaceful use and peaceful purposes’, much less any consideration of disarmament. This interpretation has effectively captured the ocean for a zero-sum game of mega-geopolitical rivalry and great power projection to ensure hegemonic dominance.

It is beyond the scope of this brief to look at the broader naval arms race which involves naval forces and naval arms systems including maritime nuclear weapons. However, in this brief, we examine two threats in the water column of the High Seas: (a) an emerging research agenda of weaponizing biodiversity for military and defence purposes in light of the third (and newest) Implementation Agreement under UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of ABNJ (BBNJ Agreement);4 and (b) the intensification of undersea great-power competition in nuclear-powered and nuclear-armed submarines and other Unmanned Underwater Vehicles (UUVs) including lethal autonomous weapons systems (LAWS), with a particular focus on the Pacific Ocean. Under UNCLOS the legal status of unmanned autonomous vessels and technology remains uncertain, but given the voracious appetite to develop these technologies for warfare, in our view it warrants additional urgent attention.5

We argue that whilst UNCLOS does not encompass disarmament6 per se, it does explicitly state that the high seas shall be reserved for peaceful use and peaceful purposes. We show how the two threats identified above undermine the UNCLOS principle of ‘peaceful purposes’ and ‘peaceful use of our oceans’7 and threaten human security. Through an appraisal of what has been revealed about the use of Australian bases by US and UK nuclear-powered (and potentially nuclear-armed) submarines under the terms of the trilateral defence agreement among Australia, the UK and the US (AUKUS), we assess how it violates the spirit and intent of the South Pacific Nuclear Free Zone Treaty (Treaty of Rarotonga). We also take a brief look at Pillar 2 of AUKUS on cooperation in the development of next generation military capabilities across a range of conventional and non-conventional arms, through the exchange of advanced military technologies.

Our concerns are with its likely impacts on the already accelerated arms race, including nuclear arms race, and the further security risks it may pose to Pacific Island States, communities and the environment.

We conclude by raising pertinent questions about the absence of international governance of high seas military activities in peace-time, and whether the vast carve-outs in UNCLOS with some general restrictions for military activities are today appropriate, or wise. We raise these questions in the contexts of growing geo-political tensions between the US and China and seeming preparation for a third world war; a rollback on nuclear disarmament and renewed calls for re-armament including acceleration of weapons manufacturing and production by governments; and the power of the military-industrial complex, the driving force behind and primary beneficiary of defence spending and the manufacture of weapons of war. We end with some recommendations on how to strengthen global disarmament efforts, referencing the Treaty of Rarotonga in light of the rise of nuclear warfare states and war-mongering, and their implications for BBNJ.