Tag Archives: UNCLOS

South China Sea: Continuous U.S. Presence or a New Law of the Sea Treaty

This article originally featured on Divergent Options and is republished with permission. Read it in its original form here.

By David Mattingly


National Security Situation:  The United Nations Convention for the Law of Sea (UNCLOS III) has failed to adequately define a nation’s territorial waters and to create a body which can enforce its judgements on nations involved in arbitration.

Date Originally Written:  February 7, 2017.

Date Originally Published:  March 6, 2017.

Author and / or Article Point of View:  David Mattingly is retired from the U.S. Navy and has sailed with U.S. Navy Carrier Task Groups in the South China Sea (SCS).  He holds a Masters of Arts in National Security Studies where he studied the geopolitics of the SCS and authored “The South China Sea Geopolitics: Controversy and Confrontation.”

Background:  Over the centuries, a few countries with strong navies controlled the world’s oceans.  The outcome of many conflicts fought on land often had a strong maritime element.  Dutch jurist Hugo Grotius first addressed the Law of Sea in his 1609 treatise Mare Liberum in which he established the idea of the freedom of the seas[1].  After  World War II and the emergence of the United Nations, the first Convention of the Law of the Sea (UNCLOS) concluded with four treaties being signed: Convention on the Territorial Sea and the Contiguous Zone (CTS); Convention on the High Seas (CHS); Convention on Fishing and Conservation of the Living Resources of the High Seas (CFCLR); and Convention on the Continental Shelf (CCS); as well as the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes (OPSD)[2].  UNCLOS II convened in Malta to discuss territorial seas and fishery limits, however, the convention ended without agreeing upon a new treaty[3].  Today, UNCLOS III has been accepted by 167 nations and the European Union, however, although the U.S. has agreed in principle to the convention, it has not been ratified by the U.S.[4].  In the last attempt for ratification in 2012, it failed due to the “breadth and ambiguity” of the treaty and because it was not in the “national interest of the United States” to give sovereignty to an international body.  Ratification was overwhelmingly supported by the Department of Defense and the U.S. shipping industry[5][6].

Traditionally, a nation’s territorial boundary was established as a three-mile belt along its coastline based on the distance that a cannon could shoot a projectile.  All waters beyond the three-mile limit were considered international territory.

Today, the SCS is a possible flash point for confrontation over unresolved issues of the UNCLOS III between the Peoples Republic of China (PRC), its neighboring states which have joined to form the Association of Southeast Asian Nations (ASEAN), and the U.S.  The islands in the SCS remained largely uninhabited until the mid-1970s when the PRC began to lay claim to a number islands and shoals which were claimed during the reign of Emperor Yongle of the Ming Dynasty in 1405 and later claimed by the PRC in what has come to be known as the “Nine-dash line[7].”  A map which was produced after World War II extended the PRC’s territorial waters claim deep into the SCS.  France challenged the PRC’s claim in 1931 by claiming the Parcel Islands and the Spratley Islands as territory of French-Indo China which then passed to the government of Vietnam after the Franco-Indo China War ended in 1954[8].

To understand UNCLOS III, it is important to first understand the definitions of terms such as the differences between an island and a rock.  The PRC began an aggressive land reclamation program where soil was dredged from the ocean bottom to create islands, which have standing under UNCLOS III, unlike rocks and shoals which are not recognized.  The islands created by the PRC can support military garrisons, home porting of both military and fishing ships, and extend the PRC’s territorial limits under the “archipelagos concept[9].”  Within UNCLOS III, this concept furthers a nation’s territorial rights by considering the seas between the mainland and the islands claimed by a nation as a connecting, rather than separating, element.  The PRC could therefore declare an emergency and suspend the “right of innocent passage” for its self-protection.

Significance:  Merchant shipping between Asia, the Middle East, and the Americas transverse the SCS and a PRC declaration of emergency which suspended the “right of innocent passage” would have major impact in global shipping.

Option #1:  The U.S. and coalition naval forces create a continuous presence in the SCS and actively challenge PRC naval activities and construction of and on islands and rocks in dispute.

Risk:  The PRC has openly harassed and attacked ships and aircraft of the U.S. and ASEAN member nations.  The PRC has established the SCS as its home waters and had several years to construct military garrisons on the islands which it created.  It is possible that the Peoples Liberation Army Navy (PLAN) has placed surface to air missiles on the larger islands.  Additionally, the PLAN has aggressively modernized its ships and aircraft to include launching its first aircraft carrier.  As such, Option #1 may increase the possibility of a naval confrontation between the U.S. and the PRC.

Gain:  A naval coalition could provide protection for fishing and merchant shipping in the SCS and shape the narrative that the international community will not idly allow the PRC to control one of the most important sea lines of commerce.

Option #2   The U.S. and other nations could call for UNCLOS IV.  As evidenced by recent events in the SCS, UNCLOS III left many gray areas that are open for arbitration and the decisions lack the power of enforcement.  UNCLOS IV would address these gray areas and establish an enforcement framework.

Risk:  Major powers agreeing to a new UNCLOS could perceive that they have lost sovereign rights.  The UN lacks the ability to enforce treaties unless the major powers are onboard thus the text of a new UNCLOS would have to be carefully worded.

Gain:  In creating an agreement that is recognized by the international community, confrontation between the U.S., the PRC, and ASEAN may be avoided.

Other Comments:  None.

Recommendation:  None.

David Mattingly serves on the board of directors for the Naval Intelligence Professionals and is also a member of the Military Writers Guild. The views reflected are his own and do not represents the United States Government of any of its agencies. Divergent Options’ content does not contain information of an official nature nor does the content represent the official position of any government, any organization, or any group.


Endnotes:

[1]  Harrison, James. July 5, 2007. Evolution of the law of the sea: developments in law -making in the wake of the 1982 Law of the Sea Convention.

[2]  Treves, Tullio. 1958 Geneva Conventions on the Law of the Sea. United Nations.  http://legal.un.org/avl/ha/gclos/gclos.html

[3]  Second United Nations Convention on the Law of the Sea 17 March – 26 April 1960 Geneva, Switzerland. , January 8, 2017. Washington School of Law, American University. http://wcl.american.libguides.com/c.php?

[4]  The Convention of the Law of Sea. U.S. Navy Judge Advocate Corps. http://www.jag.navy.mil/organization/code_10_law_of_the_sea.htm

[5]  Patrick, Stewart M, June 10, 2012. (Almost) Everyone Agrees: The U.S. Should Ratify the Law of the Sea Treaty. The Atlantichttps://www.theatlantic.com/international/archive/2012/06/-almost-everyone-agrees-the-us-should-ratify-the-law-of-the-sea-treaty/258301/

[6]  Senators Portman and Ayotte Sink Law of the Sea. July 16, 2012. Portman Senate Office, Washington, DC.

[7]  Tsirbas, Marina. , June 2, 2016. What Does the Nine-Dash Line Actually Mean? The Diplomathttp://thediplomat.com/2016/06/what-does-the-nine-dash-line-actually-mean/

[8]  Bautista, Lowell B. 2011.  Philippine Territorial Boundaries: Internal tensions, colonial baggage, ambivalent conformity.  University of Wollongong. New South Wales, http://jati-dseas.um.edu.my/filebank/published_article/3162/035 053%20Lowell%20B.%20Bautista-
 Philippine%20Territorial,%20JATI%20VOL16,%202011-%20new.pdf

[9]  Katchen, Martin H. 1976. The Spratly Islands and the Law of the Sea: “Dangerous ground” for Asian Peace. Presented at the Association of Asian Studies, Pacific Area Conference.  June.  Revised and published in the Asian Survey.

Featured Image: International Tribunal for the Law of the Sea (ITLOS)

Sea Control 134 – The South China Sea with Vasco Becker-Weingberg

By Matthew Merighi

Join the latest episode of Sea Control for a conversation with Professor Vasco Becker-Weingberg of Universidad Nova in Lisbon, Portugal, about the South China Sea. The interview, conducted by Roger Hilton of the University of Kiel, address topics including the role of the Law of the Sea, the oil sector, private security contractors, and everything in between.

Download Sea Control 134 – South China Sea with Vasco Becker-Weinberg

The transcript of the conversation between Vasco Becker-Weinberg (Vasco) and Roger Hilton (Roger) begins below. Special thanks to Associate Producer Ryan Uljua for helping produce this episode.

Roger: Hello CIMSEC listeners and welcome to another edition of the Sea Control podcast series. My name is Roger Hilton,  and I am a non-resident academic fellow for at the Institute for Security Policy at Kiel University. With no shortages of geopolitical crises erupting today, our podcast could not come at a more timely moment. One global topic that is especially prone to unpredictability is the evolving list of security threats dominating the South China Sea (SCS). Thankfully, I have the pleasure of hosting Vasco Becker-Weinberg as our guest for this episode today. Vasco is a law of the sea professor at the Universidad Nova de Lisboa, and a coordinator of the LLM program on the maritime economy and the law of the sea at Nova. His contribution to the Routledge Handbook of Naval Strategy and Security outlines the very security issues dominating the SCS. Vasco, thank you for joining us.

Vasco: It’s my pleasure.

Roger: After reading your piece, it is clear that there are a litany of issues in the SCS outside of the region’s well-publicized territorial disputes.To lay the groundwork for the conversation, can you start by explaining to our listeners how the maritime space is currently organized, and some of the threats that we are going to discuss today?

Vasco: We’ll probably focus on maritime jurisdiction in the SCS,  also perhaps refer to the seabed activities in the disputed maritime areas, meaning what is the regime applicable to these areas, and current threats–perhaps piracy, armed robbery, and weapons of mass destruction (WMD)–must be addressed as well.

On the issue of maritime jurisdiction, just briefly, it’s important that our listeners understand that this important maritime area is not no-man’s-land in the sense that this dispute has the result of two or more overlapping claims. These claims have to be based on the legal title recognized by international law and claims have to be made clearly to other states. What we see today in the case of the SCS is that some of these claims or claiming states, to be precise, neither put forward the basis on which they make their claims (i.e. their respective legal title), and second, what is the location (precisely) of the disputed maritime areas. So therefore this creates a sort of cloud of legal uncertainty regarding some of these claims.

To make matters even complex, our listeners should know that different offshore features have different legal regimes. So, the legal codification of the feature as an island or as a rock, for example, has different consequences in the type of maritime zones it can project. When we refer to maritime zones, essentially, we refer to territorial sea, to an Exclusive Economic Zone (EEZ). So in the case of a rock, a rock can project a territorial sea (TTS) up to 12 NM but if the legal status of this feature is an island or should be considered an island, then it can actually project a 200 mile EEZ. So the differences are actually quite significant. Of course, the tendency is that claiming states would always consider these offshore features to be islands, so that they can actually project greater maritime zones, and therefore, there’s an inherent stress between different claiming states between claimed offshore features. And in this respect, recent international jurisprudence has been extremely helpful in clarifying exactly what the relevant criteria in terms of what is a rock or an island. But let me point out that although there is recent jurisprudence on this matter, the debate is still very much alive.

When it comes to jurisdiction of states, it’s important to understand that the further you go from land towards the sea, the rights of states are not as intense as they are closer to shore. So, in the territorial sea of 12NM, that’s the first fringe of sea that’s closer to land, and states exercise more rights of sovereignty. But when we refer to sovereignty at sea, it’s not the same thing as sovereignty on land. There is no concept of private property at sea, for example, and you cannot cross the territory of another state. There is no right for you to do so without that state’s permission. Whereas in the TTS, for example, there is the right of innocent passage for certain vessels that comply with the conditions listed in the United Nations Convention on the Law of the Sea (UNCLOS). There’s no similarity between this right of innocent passage and any other right on land.

Then, forgetting about the contiguous zone, then after the TTS is the EEZ. The EEZ has its own special regime because it is neither TTS nor is it part of the high seas. It allows you to develop economic activities. It’s not exclusive, it’s economic. There’s very little that gives the state exclusivity in the EEZ. And finally, on the seabed and subsoil adjacent to the baselines of the TTS, we have the continental shelf. The continental shelf has been recognized as existing beyond the will of the coastal state to declare a continental shelf. It means that state exercises exclusive rights of sovereignty for the purpose of exploration of the resources of the shelf. There’s an erroneous perception some might have that the whole continental shelf is an extension of land sovereignty from the coastal state.It’s not that. It’s only focused on resources. And to end on a simple note, the current UNCLOS was developed on a resource-based approach, and a sectoral approach. Therefore, the whole issue of economic issues at sea and environmental resources is quite central to how the current legal regime has developed in recent years.

Roger: Thanks for such a comprehensive introduction. Undoubtedly, all of the technical and legal information you outlined is critical to understanding the activities in the SCS. It’s definitely a lot for the states in question to consider. Let’s get to some specifics now. As you state, tensions among the claiming states have shrunk the prospects for the delimitation of boundaries either via agreement or compulsory mechanisms. Against this backdrop, how do states interact legally in this gridlock?

Vasco: Well it’s true that it has become very difficult for states to agree on a compulsory set of mechanisms – meaning, resorting to a third party or any other means of settling the dispute. On the other hand, the fundamental reason why states have not been able to come to an understanding or an agreement is precisely  the lack of clarity regarding some claims and some legal titles.

So what are states bound to do if they can’t reach an agreement? International law is quite clear in defining these obligations. The first principle is the preservation of the maritime environment. In the disputed area, claiming states can’t act as if it’s a no-man’s land and have different conduct in that area. So they have a fundamental obligation to protect the marine environment, which states are bound to. Another obligation is that of the freedom and safety of navigation. Just because it is a disputed maritime area, the rights of third-party states are not shrunken. So guaranteeing that other states can freely exercise the freedom of navigation is extremely important. Unfortunately, what happens is that this sort of competitive behavior has developed in recent years in the SCS, particularly with oil and gas, therefore placing offshore installations that are neither identified, or were placed without notifying other states that this was happening. Of note, in a disputed maritime area, no state may develop the resources of that area without the consent of all states that are also claiming that same area, since a claim to that area is also a claim to those resources. So, a state, if he wants to develop, he must first seek the consent of all other states. Of course, this is not an easy task. Another case that is also important is that if a state finds out that there are important marine resources in a disputed area, he has the obligation to inform the other states that these resources exist.

How can we develop these obligations? Based on two fundamental principles of international law. First, good faith, of acting with good faith, and the principle of cooperation.

Roger: The legal dynamic in theory seems to work, but in practice it might be overshadowed by the disproportionate capabilities of the competing states. It’s undeniably a difficult challenge to preserve the diverse ecosystem of the SCS while simultaneously developing the lucrative trade in the region. That trade will only increase as the region becomes a hub for global finance. This is the perfect segway into the dangers of nationalism being injected into the negotiations for disputed areas. I think you’d agree that this hinders progress during negotiations, as any international compromise can be interpreted domestically as a form of capitulation. Should the listeners expect to see more of this in negotiations, or will it diminish moving forward?

Vasco: You put the question in an interesting way. If we are focusing on the SCS, but if you look at many disputes around the world, first, there’s no obligation to draw maritime boundaries, and many boundaries in the world are still pending the limitation or any form of settlement. You know, there are many examples. And in many of these cases, because it’s part of defending the territorial integrity of any state, throughout history governments have used nationalism to create a sense that there’s no giving up of claims or of territory. So, this nationalistic rhetoric is precisely to reinstate their claim for territorial integrity. 

But having said this, it’s interesting to see that in one case, of the People’s Republic of China (PRC), two years ago the PRC government announced the Belt and Road initiative, which also included the Maritime Silk Road initiative. These are an interesting approach by the PRC, and involves strong nationalistic rhetoric. It’s important to understand that all states in the SCS have their own nationalistic rhetoric at home. This new approach, the belt and road initiative, is precisely focused on economic development and increasing efficiency in transportation of goods, not only in the region but beyond. It involves connecting port infrastructures, making sure there’s security and safety, and these are all important for creating a dynamic of cooperation between states. So, if you want, things can be thought of in this way –I think states will continue this rhetoric, even though it’s not helpful in its outcome, and secondly, I think the tendency will be to continue developing some sort of cooperation between both claimant states and regions. The threats that claiming states and regions are facing are common to both, and cooperation will become an inevitability.

Roger: Maybe what distinguishes the SCS, which involves so much competition, is that the current operation of jurisdiction in the SCS is a minefield to navigate on a daily basis. So in your opinion, the functional link you mentioned earlier, it seems to serve its purpose of facilitating the compartmentalization of relations, but can this model be sustainable long term? Where are the shortcomings likely to be exposed?

Vasco: The international law isn’t without its shortcomings. Where many skeptics of international law focus is on the lack of effectiveness of international law to uphold its own decisions. We saw that recently with an arbitration between 2 states in the SCS where one state refused to participate, or to comply with the award. Therefore, one can very well ask ‘ok, we have international law, the obligations are clear, but then do states just continue doing what they are doing’? But that’s how it is. The global awareness of maritime disputes and the need to continue increasing cooperation will lead to the need for agreement on a specific dispute to take place. The problem of the SCS regarding other disputes is the intricacy of the different claims, and of course the importance of the SCS for international trade. Therefore, it’s quite a complex situation.

Is it sustainable to continue with the current dispute? Well, there are many cases around the world where disputes regarding maritime boundaries have existed for centuries and states nonetheless have had an entente cordiale, some sort of understanding to allow them to continue. It is important to look to the Law of the Sea and to the Convention to understand that the convention gives us the mechanisms not only to promote cooperation but also to help with the very important element of saving face.

I’m referring specifically to joint development, which is an alternative to states that do not agree on a maritime boundary, either by agreement or by compulsory settlement mechanism, but still manage to find this legal solution. It is not prejudicial and has no bearing on the claims they have made. This allows the two states to achieve economic development in a disputed maritime area. Then of course this would be an optimal result, but there are many different types of agreements states can make before they get to this optimal agreement. For example, making sure that there are mechanisms for 2 states that claim a disputed area to implement environmental assessment mechanisms that allow both of them to act in a way that preserves and protects the marine environment. This may not be a satisfactory answer to your listeners, but it’s the one that’s possible given the current legal framework.

Roger: Against this complicated legal backdrop, you mention that while disputed areas aren’t subject to the sovereignty of a coastal state, that does not mean that seabed activities are exempt from an internationally binding legal regime, which is a positive, both in terms of trade and protection of the environment. Can you elaborate on the procedural duties of this in an international law context–the difference between the lack of jurisdiction in disputed areas and seabed activities?

Vasco: The first thing we should be aware of is that there are thousands of offshore installations at sea. In many parts of the world, these installations are located in areas under the jurisdiction of a particular state, and therefore they’re accounted for. We know where and what they are, and we can monitor the safety procedures they’ve implemented. For example, around each installation there should be a security zone–not only to prevent some sort of collision, but also to ensure that the activity itself can take place safely.

In the SCS, we don’t have as much information as we would desire. Firstly, many of these offshore installations are in disputed maritime areas–very difficult to reach considering the military tension around them, and secondly, some of these installations have actually passed their service date, more than 30 years, and some have been abandoned, they’re just sitting there at sea. This can represent a hazard not only to the environment, but also to safety of navigation.

International law provides us with rules for states in these conditions. Firstly, the law of the sea is the law of the continental shelf. So, it’s impossible to construe the option that a state could be allowed to develop the resources in an area and not be responsible for exactly how those resources are developed. So the lack of clear jurisdiction doesn’t mean that all states concerned don’t have the obligation to protect the environment (and this is very clear and specific measures under international law) and also to protect the freedom of navigation. For example, if you have an offshore installation abandoned, then the state that put the installation there in the first place is responsible for all damages resulting from that offshore installation, be that complying with the obligation of dumping waste to the sea, or if there’s a spill after it’s no longer in use. The state that placed that installation will have to be responsible under international law.

Roger: It’s all very relevant and valid. As the region is developing, it’s a very new experience that it is responsible for upholding environmental standards. We’re hoping that with more time and experience, it will get a little more familiar and rigidity at administering these practices. In your text, in the post-Deepwater Horizon era, you identified how the EU and its member states have tried adopting common standards without impacting the jurisdiction affecting the national maritime areas. This is also backed up by UNCLOS Art. 192, which says that all states, including the landlocked states, have the duty and obligation to protect and preserve the maritime environment. Can you detail the EU’s practices, and if this model is realistically transferrable to the states in the SCS?

Vasco: Well the EU does not exercise jurisdiction over the maritime areas belonging to its member states. It does, regarding one activity, fisheries, and regarding other activities, it shares confidence, if you want to put it simply, with the member states. But the rights of coastal states, regarding maritime zones, that too stays with the EU member states. What happened was until we had the Deepwater Horizon incident, the notion of the financial implications and magnitude of the environmental impact were completely unrealistic compared to what we saw actually happened there, both in terms of indemnities that have been established, and other standards. It’s important to know that Deepwater Horizon was not in compliance with many international standards, but the problem there was of significant human error.

So the EU, after what we saw, took and made security of offshore installations and safety a priority for the EU, and also put forth legislation for states to implement at the national level. Another important organization putting forth valuable guidelines is the International Maritime Organization. All of these efforts made at a global level also have an impact on the SCS. In the SCS, for example, ASEAN has taken to heart the preservation of the maritime environment and encouraged member states to adopt measures. But you can’t really compare. What we have in the EU in terms of political integration is quite unique compared with other world regions.

Roger: Could standards not rise without political integration?

Vasco: That’s precisely what we’re going to say. There is today a very clear understanding of the standards around the world. It would be very easy to determine certain options and see whether they’re operating within the international legal framework. There’s consent given by all relevant states, that they would abide by those standards, and subject to inspection and so on and so forth. The problem is there is very little information and there could possibly be much more about these offshore installations. So yes, they’re subject to international standards and the industry itself is very different these days than it was several years back. The industry is very aware, and continues to increase its own self-regulation. Standards these days in most places around the world are very high.

Roger: It’s hard to compare the two, but moving forward even without the political integration, we can all wish that they will collectively voluntarily want to raise the standards for the general use of the area.

Vasco: There’s another element to this. The fact is that many oil companies around the world actually have their headquarters outside of the region. I’m thinking of oil companies based in the EU. We now have international jurisprudence and domestic courts where you are allowed to sue the mother company that isn’t located in that specific country where it is not upholding the level of standards, but back home. For example, if the company which is based in the EU opens a branch in another country where perhaps the levels of compliance are lower than those in the home state, the parent company can actually be sued for failing to exercise due diligence, or failing to comply with international standards. So the approach can be sometimes very frustrating, but we have a series of new mechanisms in development to make sure that when a company goes abroad, it doesn’t do whatever it feels like, but complies with the standards of its home state. These situations have rapidly developed and you’re seeing more and more situations where parent companies are actually sued for violations outside the home state.

Roger: Good to know there are some mechanisms to keep companies in check if the political integration isn’t there on the national level. Shifting gears, we’ve spoken about the legal governance and how seabed activities are conducted in disputed maritime areas. There are some major hard security issues that we would be foolish not to talk about. The rise of professional piracy, as well as the menace of trafficking weapons are all increasing substantially. Consequently, both of the issues are not confined to the SCS but to a global area. Let’s start with trafficking of WMD. What has the response been in the SCS?

Vasco: What we’ve seen in recent years is the increasing number of private military security companies. Statistics show that ships that have members of private security companies significantly reduce the cases of incidents occurring. These cases often occur when security personnel are not onboard the ships. But it’s a double-edged sword. Although international law recognizes this is the situation–there are these companies operating onboard the ships–it raises the problem of the presence of firearms aboard ships and the training of these elements is complicated. And their own role on the ship  such as their relationship with the captain, the crew. It creates a lot of added difficulty.

Nonetheless, similar to what happened with the oil and gas industry, private security companies are increasing their own self-regulation. This can be a huge risk  for them if they’re not applying best standards when defending or being present onboard a ship. At the end of the day, responsibility falls with the flag state. The flag state has the obligation that these companies operating onboard the vessel actually comply with the laws of that flag states. Regarding the protection of human life, that is fundamental. Some states, there are many European states that don’t allow the presence of firearms and ammo onboard their own vessels. So there is some request by the shipping industry that many states develop the legal framework allowing the presence of military and security personnel onboard the ship.

The other element of response that’s been extremely effective is increasing level of sharing of information and intelligence and cooperation between national agencies. It’s not possible to control every ship at sea. Or, even far more impossible, to put armed guards on every ship. Flag states can’t put a guard or policeman or army personnel on every single ship. If you look at what happened the anti-piracy efforts that were undertaken by the EU and others, particularly in the Gulf of Aden, even with all the military power that was put into place in the region, we were only capable of monitoring very small portions of the space. Therefore, it is a very complicated issue and probably private security companies are the most efficient way to combat the threat. In addition to sharing of information and intelligence, which will make it possible to combat in a holistic way the proliferation of WMD.

Roger: This is all true, but it puts both commercial carriers and nautical tourism in a very difficult situation based on the security concerns. The listeners should take note of two very important cases. In 2008, the motor vessel Sirius Star was hijacked by pirates and was carrying oil cargo valued at $100 million USD, which was later negotiated for a year later in the millions sum, the largest ransom ever paid. So this is on the commercial side. In the other issue, in regards to the private security companies, some off-duty Italian marines inadvertently killed some Indians who appeared to be assuming a negative position in February of 2012. So how do companies manage security for their cargo and their tourists against such dangerous security concerns?

Vasco: Well, this is a very difficult question. In the first case, regarding the robbery of oil, that can only be fought efficiently and stopped if we try to find out how this practice has developed. You’ll be surprised to find out that in some parts of the world, for example in the Gulf of Guinea, there is a huge connection between the robbery of oil, piracy, and the financing of terrorism in other states of the the Gulf of Guinea, and also connection with illegal unreported and unregulated fishing. But that probably would take us to an entirely different podcast.

The problem really is that states have to call into port to supply. So, the safety and security of port infrastructure is also a key element to ensure that ships can call into port in a secure manner. But the professionalism of pirates and those committing robbery at sea is also increasing tremendously. Therefore, it makes it even more difficult for traditional players of the shipping industry to combat this without the support of a larger network. Meaning cooperation not only between states but also between agencies and those working at sea.

Regarding the Enrica Lexie case, this is very interesting because in this case there were two marines aboard the ship, and so the issue of diplomatic immunity has also been raised. Many questions were asked not only regarding the position taken by Italy as the responsible state, but also India, because not only was it Indian nationals who were mistakenly shot, but the area where the incident took place is also a disputed area. Since then, some sort of agreement has been reached. But this is a phenomena that we’ll continue to witness if states don’t establish legal binding guidelines for personnel aboard their vessels. At the end of the day, the flag state will be accountable if it does not exercise its obligation of due diligence to make sure the people on the ship are qualified to carry arms and use them if necessary onboard a ship.

Roger: It seems there’s a bit of tension between the increased communication and cooperation between states and the private sector, which on an ad hoc basis might want to continue with private security companies. Despite international law considering the use of force as a last resort, it appears the great challenge governing private security companies is the legal harmonization, as you said. Based on all the research out there, it doesn’t look like there’s a standard operating procedure that’s in the pipeline that might be able to produce real guidelines about how universally they should operate with arms aboard the shipping vessels.

Vasco: The IMO has made significant efforts and has put forth important guidelines that IMO member states should implement. But the situation is very complicated when you consider the size of trade. Maritime trade will increase. We’re now seeing super containers and as more countries have access to industrialization and become exporters of goods, we have no other option than to create and implement these guidelines in all parts of the world. Without them it can become extremely complicated. It’s a two-edged sword, as I said. We know that the presence of these private security companies is extremely useful and effective, but on the other hand we still see some states reluctant to enact legislation and enforce guidelines onboard their ships. Without the flag state doing that, these military private security companies can find themselves in a very dubious situation.

Roger: We’ll have to keep a close eye on this. As the listeners have heard, there’s no shortage of issues for the SCS. Do you have any last operational takeaways for the listeners?

Vasco: The SCS is not very different from other parts of the world, except that the awareness of international public opinion has become greater. The Gulf of Guinea situation is extremely complex, but the difference between the Gulf of Guinea and the SCS is that in the Gulf of Guinea we’ve witnessed a lot of maritime delimitation, initiatives, joint development, etc. So although the situation can be extremely complex and even seem hopeless, there are also in the SCS many positive examples of not only regional cooperation but also bilateral cooperation. However, there’s a road still that has to be done, and one of the key elements that will contribute is if states undertook and implemented many of the agreements that they’ve already addressed. I think that would be a positive development if states plus ASEAN and China would implement the principles they agreed to many years ago–like the 2002 Code of Conduct, and eventually, the Code of Conduct that would safeguard that these obligations would be rightfully implemented.

Roger: Vasco, amidst all the global turbulence, it’s nice to see that you’re seeing a couple of positives. Hopefully they’re not too overshadowed by all the negatives that dominate the press. No doubt your feedback today gave us a lot to think about in the SCS and globally. You can find more information in the Routledge Handbook online. Thank you again, Vasco, and goodbye.

Vasco Becker-Weinberg, Dr. iur. (Hamburg), LL.M (Lisbon), is a professor at the Faculty of Law of the Universidade Nova de Lisboa and a qualified lawyer at the Portuguese Bar Association. He is the coordinator of the LL.M program on Law and Sea Economy and is undertaking post-doctoral studies in public international law at NOVA. He was previously legal advisor to the Portuguese Secretary of the Sea (2013-2015) and a full-time scholar at the International Max Planck Research School for Maritime Affairs at the University of Hamburg (2008-2012).

Roger Hilton is from Canada and a graduate of the Diplomatic Academy of Vienna where he holds a Master’s Degree in Advanced International Studies. He has previous experience at the Office of the State Minister of Georgia for European and Euro-Atlantic Integration as well as with the delegation of the Kingdom of Belgium at the Organization for Security and Co-operation in Europe. Since 2017 he is a Non-Resident Academic Fellow at the Center for Maritime Strategy & Security at the Institute for Security Policy at Kiel University in Germany. His research publications concentrate on transatlantic affairs and the post-Soviet sphere. 

Matthew Merighi is the Senior Producer for Sea Control. He is also Assistant Director of Maritime Studies at the Fletcher School at Tufts University and CEO of Blue Water Metrics.

Lessons from the Arctic for the South China Sea

By Daniel Thomassen 

Introduction

The maritime region centered on the South China Sea has been a vital international trade route and reservoir of natural resources throughout modern history. Today, its importance cannot be understated: half the volume of global shipping transits the area, competition for energy and fishing rights is intensifying between surrounding nations (with growing populations), commercial interests are increasing, and regional military spending increases lead the world. Rivalry over resources and security has triggered disputes about sovereignty and historical rights. China has used its increasing relative power to aggressively claim sovereign rights over two-thirds of the South China Sea within the so called “Nine-Dash Line.” Overlapping claims by the Philippines, Vietnam, Malaysia, Brunei, and Taiwan are being dismissed and have sometimes resulted in armed confrontations. Furthermore, the construction of artificial islands and significant military installations on reefs and rocks is underpinning Chinese sea control ambitions within the “First Island Chain.” This deteriorating security environment threatens regional stability, adherence to international law, and the freedom of the seas. Furthermore, it has the potential to escalate into conflict far beyond the levels of militarization and skirmishes between fishing fleets, coastguards and navies seen so far.

The U.S. has been deeply involved in the creation and management of the East-Asian state system since World War II, contributing to its economic progress and security arrangements, which include alliances with the Philippines, Japan and South Korea. Thus, the regional interests of the United States include freedom of navigation, unimpeded lawful commerce, relations with important partners and allies, peaceful resolution of disputes, and the recognition of maritime rights in conformity with international norms and law (with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) in particular).1 These principles are universally applicable and must be upheld every time and everywhere to be respected. Regional countries are now reconsidering the relevance and commitment of the balancing power of the U.S. in light of Beijing’s dismissal of American concerns and bilateral initiatives towards its smaller neighbors. 

The Arctic region similarly holds the potential for great power rivalry, but in contrast offers a good example of peaceful settlement and compromise. The diminishing ice cap is causing a growing emphasis on resources, international waterways, and commercial activity in the Arctic, where there are also competing claims and great power security interests represented. However, the Arctic nations have chosen to cooperate with regards to responsible stewardship and use UNCLOS and supplementing treaties as the legal basis. The cooperative framework is constituted by the Arctic Council, the agreed adherence to international law and arbitration tribunals, bilateral and multilateral treaties, demilitarized zones, Incident at Sea agreements, joint fisheries commissions, as well as the power balance between Russia and the NATO alliance. As a result, although there is potential for competition and diverging national interests, mutually beneficial compromises and diplomatic solutions to maintain stability and predictability are preferred.

Arctic Dispute and Resolution

Currently there are overlapping claims from Russia and Denmark for the seabed under the North Pole (Lomonosov and Alpha-Mendeleyev Ridges) under consideration by the Commission on the Limits of the Continental Shelf, and Canada is preparing another competing claim. These claims can further be used as a basis for bilateral agreements on maritime delimitations.  This was the case between Norway and Russia in 2010, and there are prospects of a similar agreement between Russia and Denmark. Such cooperative mechanisms, institutions and shared principles in the Arctic are far more robust than comparable efforts in the Southeast Asia, such as ASEAN or the “Declaration on the Conduct of Parties in the South China Sea.”

A map of claims on the Arctic seafloor. (Durham University)

The Svalbard Treaty of 1920 set a standard for international governance, and was a bold and forward looking concept when introduced almost 100 years ago.2 The archipelago was discovered by Dutch explorers in 1596, and resources were since extracted by Holland, England, Russia, and Scandinavians. Eventually, the major powers voluntarily conceded sovereignty over the islands to the young Norwegian state through a commission related to the Paris Peace Conference after World War I. The Treaty allows visa-free access for citizens of signatory states, equal rights to extract natural resources, freedom to conduct scientific activities, ensures environmental protection, and prohibits permanent military installations. This agreement exemplifies the feasibility of imposing restrictions on sovereign authority, the accommodation of the interests of the parties, and adherence to non-discrimination principles.

Episodes of Confrontation

Much like the South China Sea, there have been clashes between the coastal states in the Arctic. Between 1958-1961 and in 1976, there was a state of armed conflict and diplomatic breakdown between the United Kingdom and Iceland over fishing rights. 3 The Royal Navy escorted British fishing vessels to confront the Icelandic Coast Guard in the contested zone. Shots were fired, ships were rammed and seized, and fishing gear was cut loose from the ships in heated skirmishes. However, on both occasions it was the stronger power that stood down to the weaker, as Britain finally recognized Iceland’s right to protect its resources after significant international diplomacy that included the forming of UNCLOS.

Icelandic patrol ship ICGV Óðinn and British frigate HMS Scylla clash in the North Atlantic in 1973. (Wikimedia Commons)

Other minor events in the Arctic include the 1993 Loophole dispute between Norway and Iceland, 4 and Hans Island, the only unsolved territorial dispute, which is under negotiation between Canada and Denmark. 5 The successful diplomatic de-escalation of these cases is in stark contrast to the clashes between China and its rivals in events like the 2012 Scarborough Shoal standoff, 6 the 1995 occupation of Mischief Reef in the Spratlys, the 1988 battle over the Spratly Islands, the 1976 grab of the Paracel Islands, 7 and of course the blunt Chinese dismissal of the 2016 ruling from the International Arbitration Court against the legitimacy of the Nine-Dash Line claim. 8

China has mostly shown an uncompromising attitude in the South China Sea since the 1970s, without serious U.S.-led international efforts to check its use of force. But China too has occasionally demonstrated its willingness to forward claims to international arbitration bodies, such as its 2012 submission to the Commission on the Limits of the Continental Shelf regarding the East China Sea.9 However, that effort must be viewed in context of the ongoing efforts at the time to be accepted as observer in the Arctic Council.

Applying Arctic Lessons

The recent row between the Chinese and the U.S. Navy over an Unmanned Underwater Vehicle is symptomatic of the evolving problem, which must be addressed by the new administration in the White House. The South China Sea currently constitutes the primary global hotspot where major and regional powers’ vital interests and alliance commitments directly clash. A framework to manage this region must be negotiated by the two superpowers primarily and supported by the other involved nations. It requires the will to compromise and the pursuit of mutual interests while looking forward – a set-up which could benefit from the indicated transactional policy approach of President Trump. Any long-term solution would have to accommodate legitimate Chinese demands for security and resources. But, the U.S. must commit strongly by dedicating all available instruments of power (diplomatic, information, military, and economic measures) to impose negative consequences unless China is willing to negotiate from its strong position. Furthermore, the U.S. must uphold the same standards and make concessions itself.

It must therefore expediently ratify UNCLOS10 with its international tribunals and vow to respect the treaties that must be created to regulate sovereignty, demilitarization, commercial rights and responsibilities to protect fish stocks and the environment. Chinese concerns about the “One China Policy,” American forward basing, and policy on the Korean peninsula must also be on the table, as well as cooperation on regional trade agreements.

While state security can be achieved in the South China Sea through treaties, demilitarization, power balance and predictability, the conditions for prosperity flow from similar efforts. As demonstrated in the Arctic, good order at sea and responsible stewardship encourages investments and lay the foundation for cooperative ventures that are mutually beneficial. Uncontested sovereignty and fair trade regulations are incentives for developing expensive infrastructure necessary for harvesting resources under the seabed. The inevitable link connecting China and the U.S. is the economic dependency between the two largest economies in the world. So far, they have both unsuccessfully introduced regional free trade initiatives in order to create beneficial terms for themselves such as the Regional Comprehensive Economic Partnership agreement and the Trans Pacific Partnership respectively. 11 An obvious flaw with these proposals is that they have excluded the opposite superpower. Since both countries are indispensable trading partners to most others, a cooperative effort to create trade agreements would benefit both and could not be ignored.

Although unresolved sovereignty issues in the South China Sea make it a tough case, there is a model to study and lessons to be learned in the cooperative management of the Arctic region (as well as the 1959 Antarctic Treaty and the 1936 Montreux Convention). However, controlling the impulses of a great power to dominate its surroundings requires a massive international diplomatic effort, creating alternative mutually beneficial conditions and a proper balancing of military power. Active U.S. presence and regional capability is fundamental to maintaining a balance and influencing the shaping of a cooperative environment. But first and foremost, there is a requirement for building trust and confidence through long term commitment to international cooperation, predictability and clear intentions. For a start, the good examples from the Arctic have been shared with China, Japan, India, the Republic of Korea and Singapore – all of which are involved or have vital interests in the South China Sea dispute – since they became observer states to the Arctic Council in 2013. Likewise, the U.S. can also benefit from its experience as an Arctic nation, and from the insight gained from holding the chairmanship of the Arctic Council since 2015. Moving forward, the Arctic offers successful governance lessons that can be applied to the South China Sea in order to maintain stability and ensure prosperity for all.

Daniel Thomassen is a Commander (senior grade) in the Royal Norwegian Navy. He is a Surface Warfare Officer serving as Commanding Officer of HNoMS Fridtjof Nansen (FFGH). He is a graduate of the Royal Norwegian Naval Academy (2002), U.S. Naval War College (2015), and holds an MA in International Relations from Salve Regina University (2015).

References

1. Jeffrey Bader, Kenneth Lieberthal, Michael McDevitt, “Keeping the South China Sea in Perspective”, Brookings, August 2014 https://www.brookings.edu/wp-content/uploads/2016/06/south-china-sea-perspective-bader-lieberthal-mcdevitt.pdf

2. Wallis, Arnold, Numminen, Scotcher and Bailes, “The Spitsbergen Treaty – Multilateral Governance In The Arctic”, Alliance of Liberals and Democrats for Europe/Applied International Law Network, Arctic Papers Vol. 1, 2011 https://dianawallis.org.uk/en/page/spitsbergen-treaty-booklet-lauched

3. The Ultimate History Project, “A Serious Joke: Britain and Iceland Go to War”, http://www.ultimatehistoryproject.com/cod-war-britain-and-iceland-go-to-war-over-fishing.html

4. Thorir Gudmundsson, “Cod War on the High Seas – Norwegian-Icelandic Dispute Over Loophole Fishing in the Barents Sea”, Nordic Journal of International Law, 64: 557-573, 1995

5. Jeremy Bender, “2 countries have been fighting over an uninhabited island by leaving each other bottles of alcohol for over 3 decades,” Business Insider, 10. January 2016 http://www.businessinsider.com/canada-and-denmark-whiskey-war-over-hans-island-2016-1?r=US&IR=T&IR=T

6. Jane Perlez, “Philippines and China Ease Tensions in Rift at Sea”, The New York Times, 18. June 2012 http://www.nytimes.com/2012/06/19/world/asia/beijing-and-manila-ease-tensions-in-south-china-sea.html

7. “Military Clashes in the South China Sea” http://www.globalsecurity.org/military/world/war/spratly-clash.htm

8. Matikas Santos, “Key points of arbitral tribunal’s verdict on PH-China dispute”, Inquirer, 12. July 2016 https://globalnation.inquirer.net/140947/key-points-arbitral-tribunal-decision-verdict-award-philippines-china-maritime-dispute-unclos-arbitration-spratly-islands-scarborough#ixzz4UQUrV9m3 

9. Submission by the People’s Republic of China Concerning the Outer Limits of the Continental Shelf beyond 200 Nautical Miles in Part of the East China Sea http://www.un.org/depts/los/clcs_new/submissions_files/chn63_12/executive%20summary_EN.pdf

10. Eliot L. Engel and James G. Stavridis, “The United States Should Ratify The Law Of The Sea Convention”, The Huffington Post, 11. July 2016 http://www.huffingtonpost.com/rep-eliot-engel/the-united-states-should_b_10930236.html

11. Lauren O’Neil, “Trade In Asia: The Liberalization Agenda – Where To From Here?”, Forbes, 13. December 2016

Featured Image: The Canadian Coast guard’s medium icebreaker Henry Larsen is seen in Allen Bay during Operation Nanook, in Nunavut on Aug. 25, 2010. (Sean Kilpatrick/Canadian Press)

Military Activities on the Continental Shelf

This piece was originally published by the Lawfare Institute in Cooperation with Brookings and is republished with permission. Read it in its original form here.

By James Kraska

The recent Philippine-China Arbitration Award determined that China’s construction of artificial islands, installations and structures on Mischief Reef, Subi Reef, and Hughes Reef were unlawful interference with the Philippines’ exclusive sovereign rights and jurisdiction over the seabed of the exclusive economic zone (EEZ) and continental shelf. Since the three features are low-tide elevations (LTEs), rather than islands, they are incapable of appropriation and are merely features of the Philippine continental shelf, albeit occasionally above water at high tide in their natural state. Although the tribunal’s legal judgment with regard to China’s activities was correct, its reasoning was a bit too categorical. This article adds further fidelity to the tribunal’s determination by distinguishing between lawful foreign military activities on a coastal state’s continental shelf, and unlawful foreign activities on the continental shelf that affect the coastal states sovereign rights and jurisdiction over its resources – a distinction that evaded the tribunal’s analysis.

It is important to understand the lawful scope of foreign military activity on the seabed of a coastal state’s EEZ or continental shelf, as the issue is likely to recur. The Defense Advanced Research Projects Agency, for example, is exploring the idea of “upward falling payloads,” or pre-positioned containers or packages that lie on the ocean floor and wait until activated, at which time they “fall upward” into the water column to perform undersea missions, such as powering other unmanned systems. With some narrow exceptions, such as emplacement of seabed nuclear weapons or seabed mining, the use of the deep seabed is a high seas freedom enjoyed by all States. The more compelling question, however, is the extent foreign states may emplace naval devices or construct installations or structures on the continental shelf or within the EEZ of a coastal State for military purposes.

Article 56(1)(a) of UNCLOS provides that coastal States have certain “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living….” in the EEZ. Coastal States also have “jurisdiction as provided for in the relevant provisions [of UNCLOS] with regard to “(i) the establishment and use of artificial islands, installations, and structures.” Under Article 60, coastal States enjoy the “exclusive right” to authorize or regulate the construction of structures, a rule that is extended to the continental shelf by virtue of Article 80. Coastal State jurisdiction over artificial islands and structures is not all encompassing, however, and is limited to jurisdiction “as provided for in the relevant provisions [of UNCLOS].” The relevant provisions of the EEZ, of course, relate principally to exclusive coastal State sovereign rights and jurisdiction over living and non-living resources in the EEZ and on the continental shelf, and not sovereignty over the airspace, water column, or the seabed.

In the recent Philippine-China Arbitration Award, the tribunal determined that China’s artificial island construction on Mischief Reef was an unlawful violation of Philippine sovereign rights and jurisdiction over its continental shelf. Since Mischief Reef is a LTE and not a natural island, it constituted part of the Philippine continental shelf and seabed of the EEZ. China failed to seek and receive Philippine authorization for its artificial island construction, and therefore violated Articles 56(1)(b)(i), 60(1), and 80 of UNCLOS (Arbitration Award, para. 1016).

Foreign States, however, are not forbidden to construct installations and structures on a coastal State’s continental shelf per se. Only those installations and structures that are “for the [economic] purposes provided for in article 56” or that “interfere with the exercise of the rights of the coastal State” over its resources require coastal State consent. (See Article 60(1)(b) and (c)). 

But even if China converts its installations and structures into military platforms, their size and scope are so immense that they dramatically affect the quantity and quality of the living and non-living resources over which the Philippines has sovereign rights and jurisdiction. Although normally installations and structures that are built pursuant to military activities are not subject to coastal state consent, the industrial scale of Chinese activity lacks “due regard” for the rights and duties of the Philippines and its sovereign rights and jurisdiction over resources under Article 56 of UNCLOS.

If China had merely emplaced a small, unobtrusive military installation or structure on the seabed or landed an unmanned aerial vehicle at Mischief Reef as part of occasional military activities, it would not have been afoul of UNCLOS. Such incidental use of the seabed or an LTE (which is part of the seabed) are within the scope of permissible military activity in the same way as emplacement on the continental shelf of a small seabed military device. Foreign States may use the seabed for military installations and structures, and even artificial islands, as these purposes do not relate to exploring, exploiting, managing and conserving the natural resources. Only those military activities that rise to the level of or of sufficient are of such scale that they do not have “due regard” for the coastal state’s rights to living and non-living resources of the EEZ and continental shelf are impermissible.

The distinction is important because creation of the EEZ and recognition of coastal state sovereign rights and jurisdiction over the continental shelf was never envisioned to limit normal military activities. Current and future naval programs, in fact, may utilize a foreign coastal State’s seabed EEZ and continental shelf in a manner that is completely in accord with UNCLOS.

Where do we draw the line, however, between an insignificant presence and negligible interference that is lawful, and large-scale disruption that is unlawful? Like all legal doctrine, what constitutes genuine interference to coastal State sovereign rights and jurisdiction must be reasonable, i.e. not de minimis or trivial, but rather a substantial and apparent effect on the resources in the zone, as I discussed in Maritime Power and Law of the Sea. Emplacement of military devices or construction of military installations or structures in the EEZ and on the continental shelf of a coastal State must be judged by reasonableness, and not be of such scale or cross a threshold of effect that it interferes in a tangible or meaningful way with the coastal State’s resource rights.

China’s operation of military aircraft from a LTE is not a priori unlawful, any more than operation of military aircraft from a warship in the EEZ would be illegal. The reason that PLA Air Force military aircraft flights from the runway at Mischief Reef are objectionable and a violation of the Philippines’ coastal State rights is the magnitude of the activity and its effect on the living and non-living resources. Operation by a foreign warship of a small aerial vehicle that lands temporarily on an LTE, for example, would not be unlawful. Likewise, if a naval force emplaced a military payload inside a container and placed it on the seabed of the EEZ – that is, on the coastal State’s continental shelf – that would also be a lawful military activity.

James Kraska is Howard S. Levie Professor of International Law at the Stockton Center for the Study of International Law, U.S. Naval War College, Distinguished Fellow at the Law of the Sea Institute, University of California at Berkeley School of Law, and Senior Fellow, Center for Oceans Law and Policy, University of Virginia School of Law.

Featured Image: MARCH 10, 2016- Philippine Naval Ship, BRP Sierra Madre, sails near disputed Spratly Islands in the South China Sea (REUTERS/Erik De Castro)