The Potential Application of the Maritime Powers Act 2013 to Armed Conflicts at Sea

While international law governs rights and obligations between states, the conduct of operations by the armed forces of a state also remains subject to the domestic law of that state. As domestic laws creep extraterritorially into the maritime domain, the impact of domestic law on the conduct of naval operations, including the conduct of operations during an armed conflict at sea, has emerged as an issue that demands consideration.

In the Australian context, the regulation of naval operations was substantially changed with the commencement of the Maritime Powers Act 2013 (Cth) (MPA). The broad geographic application of the MPA, coupled with the way in which it regulates the enforcement of international legal instruments, such as a UN Security Council Resolution (UNSCR), raises the question of the extent of its application to naval warfare, and other naval operations conducted simultaneously, or close in time, with the exercise of belligerent rights.

There is no evidence to suggest that MPA was intended to apply to Australian naval forces during an armed conflict at sea. Equally, there is no express provision of the MPA, which indicates that it ceases to apply in specific circumstances, including because a state of armed conflict exists. The broad rights the MPA grants to Australian officials on the high seas, and the jurisprudential context in which it operates, indicates there is a live question as to the scope of its reach, including its potential reach into the conduct of armed conflict at sea.