Tag Archives: UNCLOS

Tribunal Selected in Philippines Case Against China

DisputedThe Philippines case against China’s maritime claims is moving forward. The Philippines on Jan. 22nd asked the International Tribunal for the Law of the Sea (ITLOS), to declare invalid China’s claims over the contested waters in the West Philippine Sea/South China Sea. ITLOS, established as an independent body by the UN Convention on the Law of the Sea (UNCLOS), has named Ghanian and former ITLOS head Thomas Mensah as president and final member of the 5-person panel that will hear the case. Mensah replaces a Sri Lankan judge who was removed for conflict of interest due to his Filipino wife.

While China has rejected the proceedings and refuses to abide by their rulings, as noted by Rappler.com, this will not at least necessarily impede the proceedings. Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) states:

“If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.”

NATO in the Arctic?

By Andrew Chisholm

An appropriate presence?
                          An appropriate presence?

Canada’s recent assumption of the Chairmanship of the Arctic Council prompted much discussion of Arctic issues, including security, an important element of which is the ongoing tug-and-pull over whether NATO should play a role in the region. Russia is, unsurprisingly, opposed. But there is division within NATO itself: Canada against, Norway and other Nordic states for, and the United States seemingly unsure. These divisions are rooted in the varied nature of the Arctic security challenges that each state or group faces. Therefore Arctic security solutions must be equally tailored.

According to Rob Huebert of the University of Calgary, both Russia and the U.S. are viewing the Arctic in military-strategic terms. Russia aims to maintain its nuclear deterrent, including in the Arctic, through submarine-based missiles to be deployed in its Northern Fleet. Meanwhile the U.S. has bolstered its ballistic missile defence forces in Alaska, and maintains fighter and airlift squadrons as well as a naval submarine presence. Both see their own moves as crucial to national security, but likely view the other with concern, a mindset also prevalent among the Nordic states.

Norway has prioritized Northern defence, moving its operational headquarters to the High North in 2009 and working closely with other circumpolar states, including Russia. But Norway has also been pushing for a NATO presence there because of the importance of the Arctic and increasing interest around the world. It has likewise made clear that as Russia continues its military modernization, Norway sees an Arctic presence of NATO as crucial to continued Norway-Russia cooperation.

Norway’s concerns are similarly felt by Sweden and Finland, which have hosted U.S. and NATO training exercises and deepened ties with the Alliance, as well as by the Baltic states (Latvia, Lithuania, Estonia). This has lead to talk of a Nordic-Baltic alliance or perhaps even of British involvement. Regardless, it is clear that real deterrence of the interested countries’ more powerful neighbour depends on the wider NATO organization.

Top 'O the World to You
                            Top ‘O the World to You

These actions have caused concern in Russia where NATO, not to mention its expansion, has historically been viewed with suspicion. It is important that after a recent visit to Norway, NATO Secretary-General Anders Fogh Rasmussen said that NATO would not increase its presence in the region. He also noted, though, the legitimacy of Norway’s expectation that NATO principles apply to all NATO territory, including its northern reaches. So it seems that while no increase in activity is imminent, neither is a reduction, and the Nordic states will almost certainly continue to seek greater NATO involvement. But while Norway and others have good reason to look to NATO, Canada has good reason to not want an Alliance presence.

With boundary disputes set to be resolved through the U.N. Convention on the Law of the Sea and all Arctic states saying that military activities are mainly to support of commercial and other civilian priorities, Canada’s desire, especially under the current government, is to see Arctic states focus primarily on economic development. Furthermore, despite sometimes harsh public rhetoric, Canada has a good economic working relationship with Russia it wishes to maintain, as the two countries have much to offer one another. Burgeoning NATO-Russia competition in the Arctic would undermine both those goals. But Canada cannot block U.S., Russian, or Nordic strategic aims, and so it must simply do what it can to defuse Arctic tensions: work to influence the means by which security is organized in the Arctic.

Whether or not the Nordic states achieve their goal of a greater northern NATO presence will depend on the keystone of the Alliance, the United States. In some ways NATO is an attractive option for the Americans, as five of the eight circumpolar states (Canada, Norway, Denmark, Iceland, the U.S.) are member states and the Nordic-Baltic states seem fully willing to contribute to the extent of their (relatively limited) capabilities. But, as its National Strategy for the Arctic Region indicates, the United States is no more interested in de-stabilizing the region than is Canada. Therefore a tension-creating NATO presence is neither ideal nor a foregone conclusion.

This presents Canada with an opportunity to promote an alternative to NATO: NORAD, the North American Aerospace Defence Command. The NORAD option is attractive for several reasons. In concrete terms, NORAD boasts a North America-specific defence architecture (NATO does not), a connection to ballistic missile defence, and an emerging focus on the maritime domain. Through these capacities, it can support both military-strategic and economic activities. In terms of perceptions, NORAD, while closely linked to NATO, is a separate organization. Whereas a NATO presence would stretch solidly from Alaska to the Nordic region, a degree of separation between northern North American and northern European security may present a less anti-Russian and less threatening posture. In the same vein, although it was established during the Cold War NORAD lacks some of the legacy of NATO, which for decades stood at the symbolic heart of East-West competition.

It is important to remember that warfare among the Arctic states is highly unlikely. And, while there will always be disagreements and competition among all states, much of the current Arctic tension is the result of uncertainty about the shape of the Arctic security structure going forward. The task for now is to ensure that the final shape settled on is the best one to calm existing tensions and manage future disputes.

Andrew Chisholm is a Junior Research Fellow at the Atlantic Council of Canada. He recently graduated from the University of King’s College with a B.A., Combined Honours, in Political Science and History, and studied Conflict Resolution at the Rothberg International School at Hebrew University in Jerusalem. Andrew focuses his writing on contemporary Canadian foreign, defence, and security policy. His wider interests include sovereignty and governance, international diplomacy, and emerging security threats. Contact: andrewmchisholm@gmail.com

This article was cross-posted by permission from and appeared in its original form at the Atlantic Council of Canada. Any views or opinions expressed in this article are solely those of the authors and the news agencies and do not necessarily represent those of the Atlantic Council of Canada.

MFP 9: Final Predictions For The Future

Any final predictions?

This is the ninth and final regular post in our Maritime Futures Project.  For more information on the contributors, click here.  Note: The opinions and views expressed in these posts are those of the authors alone and are presented in their personal capacity.  They do not necessarily represent the views of their parent institution U.S. Department of Defense, the U.S. Navy, any other agency, or any other foreign government.

LT Drew Hamblen, USN:
Navy’s experiments with biofuels will fizzle out as an abundance of natural gas and crude oil prices it out of the market.

Felix Seidler, seidlers-sicherheitspolitik.net, Germany:

La Marinha do Brasil
La Marinha do Brasil

The international maritime security debate is dominated by U.S. future capabilities, European decline, and the Asian arms race – in particular China. Yet beyond that Brazil will be an interesting player. The country seems to pursue an ambitious fleet-building agenda. Moreover, Brazil trained China’s carrier pilots. With a mid- to long-term perspective, a Brazilian blue-water navy might go on expeditionary tours – not to win wars per se, but to take part in international operations or underline Brazil’s new geopolitical status. Why shouldn’t Brazilian and Chinese carriers visit each other’s countries to deepen political ties between both governments?

Bryan McGrath, Director, Delex Consulting, Studies and Analysis:
Most of my predictions will be wrong.

Sebastian Bruns, Fellow, Institute for Security, University of Kiel, Germany:
“A ship in port is safe, but that is not what ships are built for”
Attributed to Benazir Bhutto

CDR Chuck Hill, USCG (Ret.):
In the most likely conflicts, large numbers of vessels will be needed to perform blockade and marine policing to prevent use of the use of the seas for transport of weapons, supplies, and personnel. We will never have “enough.” The U.S. Coast Guard will be needed to supply some of them.

Biometrics, the ability to positively identify individuals, is already in use in counter-piracy operations and may become important in tracking down terrorists and agents in unconventional asymmetric conflicts.

States led by China will attempt to reinterpret the United Nations Convention on the Law of the Sea (UNCLOS) to apply the restrictions and requirements of Innocent Passage to the Exclusive Economic Zone (EEZ) as well as the Territorial Sea. Most important is Article 58 Section 3 of UNCLOS: “In exercising their rights and performing their duties under this Convention in the EEZ, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.” China will interpret this to mean that anything other than expeditious transit including “spying,” “hovering,” flight ops, and submerged operations might be considered illegal.

LCDR Mark Munson, USN:

I see your EEZ is as big as mine.
                                                                            I see your EEZ is as big as mine.

The notion of an exclusive economic zone (EEZ) is not new (the formal definition of it extending out 200 nautical miles dates to the 1982 UN Convention on the Law of the Sea (UNCLOS), but it seems to increasingly be at the heart of the various maritime disputes. China’s differences with its neighbors in the South and East China Seas revolve around the desire to secure control of underwater resources by maximizing its EEZ. In addition, China has advocated a state’s right to control or regulate the military activities of other states occurring in its EEZ. If accepted by the rest of the world (which most countries currently do not), such a notion would significantly impact the ability of states like the U.S. to operate forward at sea like it traditionally has. In addition, it is the realization of the negative impacts of a state’s inability to enforce activity in its EEZ (such as piracy in Somalia, maritime banditry and oil theft in the Gulf of Guinea) that has led many states to realize that capable maritime security forces are important, although they may not be able to afford them.

YN2(SW) Michael George, USN:
The U.S. Navy is a vital force in our nation’s defense and will continue to be vital to providing secure waterways around the world. But the fact that it is a national navy and not an international one will cause leaders in other countries to make greater efforts to become more self-reliant.

LT Jake Bebber, USN:
Few in the U.S. want war with China, and few in China want war with the U.S. That being said, the wisdom of the ancients suggests that we are on a collision course. 2,500 years ago, Thucydides wrote “The growth of the power of Athens, and the alarm which this inspired in Lacedaemon, made war inevitable.” Fear, power and interest, often involving third parties (see Corcyra in 440 B.C. or Japan today), drive nations to war, and human behavior remains largely unchanged over the last 5,000 years of recorded history, despite our fallacious belief in “progress.” War will come when it is most inconvenient, unexpected, dangerous, and costly – not when we are prepared.

LT Alan Tweedie, USNR:
DDG 1000 will cost even more than we expect and none of the three we are building will ever see 20 years of service life. Neither this ship nor anything else like it will be a part of our Navy’s future.

LT Scott Cheney-Peters, USNR:
These are a little further out in left field, and focus a bit more on geopolitics than the predictions made to earlier questions, so I fully expect them to make me look a bit ridiculous in the years ahead:

While much has been written about Brazil’s burgeoning economic power – slowing of late – and the nation’s drive to reinvigorate its naval capabilities, it will be Columbia and Mexico that surprise the Western Hemisphere’s observers with their growing naval clout. The focus of these nations’ fleets will also shift from the traditional hemispheric concerns to protecting trade ties to Africa and Asia. This is of course predicated on both countries’ ability to keep a lid on domestic discontent and violence while extending their economic booms. Other South American armadas – such as those of Peru, Uruguay, and Chile – will endeavor to maintain their small but professional capabilities, and undertake a similar drive (underway in many cases) to boost ties across the Pacific and Atlantic.

The leaders of both Cuba and Venezuela have not long to live, yet neither change at the top will mean much in terms of naval policy. Both nations may seek to defrost relations with the U.S. and strengthen integration in cooperative regional maritime efforts – although again, little change from now.

The professionalization of Africa’s maritime forces will continue apace in those nations enjoying peaceful transitions of government. Cooperative regional efforts will combat the threats of piracy, maritime robberies, and drug-running – but the dangers will continue at modest levels and readily flourish in any coastal power vacuum. Counter-drug ops will prove the hardest to due to pervasive levels of corruption in states such as Guinea-Bissau.

The Persian/Arabian Gulf will remain a tinderbox – not due to a looming confrontation with Iran, but because the Arab Spring has yet to fully play out on (or off the coast of) the Arabian Peninsula. I don’t presume to know the outcome or timeline, but escalating repression of the Shia majority in Bahrain could lead to untenable situation for the U.S. Fifth Fleet HQ, and/or a change of government.

Lastly, in Asia, the oft-overlooked Indonesia has the potential to develop into a naval power in its own right. The nation’s leadership has aspirations of becoming a key player in South Asia, and it will likely attempt to play the role of a non-aligned honest broker in any regional stand-off. If you’re looking for good coverage of Indonesia (and its ties with Australia), check out the sites Security Scholar and ASPI.

Of course, we could always just end up with this:

Simon Williams, U.K.:
Something this writer believes policy makers and the military should be mindful of in the coming decades will be the increasing significance of the maritime realm in dictating the machinations and dynamic of international relations. Not only are burgeoning economic powers in the Far East developing credible naval forces to guard their interests, but, having suffered a bloody nose in a protracted counter-insurgency campaign in Afghanistan, Britain and the United States will find it difficult to conjure up the public support for any ground operations in the near future.

LCDR Joe Baggett, USN:
No predictions – Just observations:
– In my opinion, the United States and its partners find themselves competing for global influence in an era in which they are unlikely to be fully at war or fully at peace.
– The security, prosperity, and vital interests of the United States are increasingly coupled to those of other nations.
– We must be as equally committed to preventing wars as we are to winning them.
– As ADM Locklear once said “I value surface forces that are:
1) Sufficient in number: you have to be there in order to make a difference
2) Capable, both offensively and defensively: our lethality must be compelling, and our presence re-assuring to our allies
3) Ready, both in proficiency to the full range of potential missions and in proximity to where they’re needed
4) Relevant: the right mix of the above factors to achieve the broad missions sets assigned.”

Wrapping Up Sea-based Nation Week

New international law: an EEZ 5 hexagons wide

 

I started out the week with a few of my own thoughts and an interview with Randy Hencken, Executive Director of the Seasteading Institute, who was gracious enough to reach out and participate in our discussion.

 

In “From Jules Verne to Sir Julian Corbett” Viribus Unitis provided a worse-case scenario for rogue sea-based nations, and along with LT AJ Kruppa’s “Sea-based Nation Security” delved into the issues of warfare and maritime security among city-state platforms.  LT Kurt Albaugh took a similar tack and pondered the potential use of sea city-states as Afloat Forward Staging Bases and launching pads for military operations in “Bridging the Moat.”

 

Ian Sundstrom examined the question of “Who Would Benefit Most from Seasteading?” – particularly the numbers behind the hope proposing replacing low-lying islands threatened by climate change.  In “Ice-basing the Arctic,” LT Allen Tweedie questioned whether seasteads could harness the new round of excitement over trade routes and minerals in the Arctic Circle.  Meanwhile, LTJG Matt Hipple imagined a future of seasteads at the forefront of mineral claim-stakers in “Seasteaders: Mining the Sea, Mining the Future.”

 

Exploring the source and models of sovereignty also featured prominently in CDR Doyle Hodge’s “Sea-based Nations and Sovereignty,” Matt Hipple’s “SeaUnsteady: Personal Sovereignty” and Susanne Tempelhof’s “Why the U.S. Should Embrace Seasteading.”  This segued into discussions on the nature of citizenship and government in the last two articles –where seasteaders particularly hope to inspire new lines of thinking.

 

A few final thoughts:

 

International Law:

One common issue posters grappled with was the applicability of international law to the concept of seasteads.  As it stands, international law in the form of the UN Convention on the Law of the Sea (UNCLOS) throws up many road blocks for seasteads and sea-based nations.

 

Ian Sundstrom pointed out that UNCLOS doesn’t grant man-made structures their own EEZs, reducing the resource incentives for a seastead to transition from a flagged vessel to a micro-nation; LTJG Hipple noted UNCLOS has established rules for the mining the deep-sea bed in international waters; and, multiple posters discussed both the necessity of flagging a seastead as a vessel (if only for their own protection) and the restrictive effects of existing states’ territorial waters, contingency zones, and EEZs on placing a new sea-based nation.  

 

All this illustrates the importance and real impact international law can have on maritime security and the health of a nation’s economy.  It also suggests the benefits to be gained by influencing international law to one’s own advantage – as Randy Henrickson himself pointed out.  This is something done through enforcement of international customary law, for example freedom of navigation transits through international straits, or by having a seat at the table when negotiating the terms of treaties or helping to enforce, interpret, or implement them.  True, a nation (even a sea-based nation) can violate the rules, but there are courts and international mechanisms which can make it very painful on the pocket-book to do so (whether or not a signatory), through negative trade rulings, banking sanctions, or exclusion from certain markets.  In short, those hoping to seastead or create a sea-based nation have a lot of work to do not only in creating new experiments in government, but in changing or gaining acceptance for new international norms.

 

A conveninent flag but a risky defense

Flagging:

The preferable flag for seasteads will vary based both on their location and their future intent.  Those seeking to eventually declare themselves a fully fledged micro-nation would do well to choose a flag of convenience.  While flags of convenience provide only the bare minimum of legal security against other states and criminal enterprise, they do promise minimal interference both in the short-term and the day when a seastead attempts to gain acceptance as a micro-state.  The navies and coercive powers of Panama and Liberia are, sorry to say, not particularly fearsome.  Additionally, the lack of security provisions of the flag state can be balanced by recourse to the legal systems (and militaries) of the seatead’s own citizens – at least until they become members of their new micro-nation.   

 

For those seeking to create a seastead near the EEZ of another nation, there are a couple options, each with its own advantage, if autonomy short of independence is acceptable. First, the seastead could seek the flag of the major port – this would greatly lower the cost of doing business with what will likely be the seastead’s major trading partner and critical logistical support hub.  Second, the seastead could seek the flag of a “champion powerful enough to coerce non-interference,” as CDR Hodges put it.  This could be a nation looking for a major trading hub, a nation looking for a military foothold in the region, or some combination of the two.

 

Sovereignty and Resources:

No matter what route seasteads take to attempt the transition to micro-nations or harness the resources of international waters, the difficulties they will face are daunting – but not insurmountable.  

 

A clear mechanism for the transition to micro-nation would be preferable.  Perhaps with minimum qualifications such as self-sufficiency, a written constitution, a minimum population level (and a hefty “application fee”).  Whether or not the sea-based nation was mobile would also factor in, with a permanent residence likely gaining greater acceptance.  A successful qualification could be awarded territorial waters an EEZ, and a zone in which it can mine the deep sea bed.  These distances could be specifically delineated on a case-by-case just as the 200nm EEZ was created out of whole cloth.  A sea-based micro-nation could be its own form of sovereignty with its own legal conditions rooted in international law.  Here I turn the question to you – what other sorts of qualifications do you think should be applied?

 

In reality we are likely to see more muddled development, with some seasteads gaining recognition by one set of nations, and others another.  The aforementioned powerful champions will likely aid those with cultural ties, hold out the promise of co-developing resources, or offer a military or economic foothold as described above – presenting seasteads with the trick of charting their course to true sovereignty in a sea full of sharks (but such is the case of diplomacy everywhere).

 

“I was promised a cabin with an ocean view!”

Security:

Lastly, seasteads may also experiment with what are really old models of armed forces, by requiring all hands or all citizens to be ready to defend themselves against attack (see picture), they may require new citizens to spend a spell in dedication to the nation (universal conscription), or they may just hire out mercenaries. The size, economic-base, wealth, technological level, form of government, and relative security will all play a role in determining the form of the armed forces.  

 

It’s also important to remember that not every seastead or sea-based nation will be floating, but many will, and that will make them particularly vulnerable to any sort of attack.  The morality of bombing/torpedoing such a target might be equated to sinking dual-use ocean liners and might force the type of hybrid maritime/urban warfare Viribus Unitis discussed – especially if the sea-based nation develops few offensive or stand-off weapons to justify an initial bombardment.  

 

 

We may hear more about sea-based nations in the future, with another interview or two in the works. And for those of you in the DC area, don’t forget our meet-up Wednesday, from 6-10pm at District Pi Pizza, where you’ll have a chance to meet a few of the posters and discuss in person the writing. We’ll also have an informal poll from the week for the Best Written, Most Original Thought, and Most Persuasive pieces.