Ocean Governance Topic Week

By Dan Owen

A fundamental step toward achieving long-term peace and stability in developing nations remains the establishment of rule of law and a corresponding system of stable governance. This primacy assigned to rule of law and stable governance is consistent across the military and civilian development sectors. Specifically, the U.S. military’s foundational doctrine on Stability (Joint Publication or JP 3-07) and the U.S. Institute of Peace’s (USIP) Guiding Principles for Stabilization and Reconstruction list rule of law and stable governance as core stabilization functions. Establishing key “maritime governance” structures, in particular, is of vital importance to the multitude of maritime nations now dependent on the sea as their primary source of production, resources, employment, and overall socioeconomic stability.

Maritime stability is also increasingly if not inextricably linked to larger global stability. Currently, over three-quarters of the nearly 200 UN recognized countries are interconnected through the maritime domain or otherwise deemed maritime nations. Maritime trade already accounts for 90 percent of global trade and over half of the world’s trade (by value). Many nations are also dependent on the sea as their primary source of protein and other extractable resources. These numbers, however, do not account for an equally substantial volume and corresponding value of illicit maritime enterprises that many malignant, destabilizing elements need to sustain their power and influence.

In order to sustain some semblance of stability and resist growing pressure from external malign actors, maritime nations must secure the means necessary to stem if not outright stop rising cases of illegal and exploitative maritime activities. These activities include the poaching of natural resources, pollution, piracy, weapons proliferation, human and contraband trafficking, and a multitude of other safety, security, and sovereignty enforcement challenges. Thwarting such activities cannot be possible absent functioning rule of law and supporting governance structures.

Fortunately for the U.S. and the larger international development community, a basic framework or mechanism to address maritime instability already exists, called Maritime Stability Operations (MSO). Additionally, one U.S. government agency in particular is especially qualified and well-suited for this mission, the U.S. Coast Guard.

The following provides a re-introduction to MSO, its preeminence amid the multitude of modern maritime challenges, along with why the Coast Guard—in coordination with the U.S. Department of State (DOS)—must not only be the lead implementing agency but make maritime stability operations its core or priority future mission focus.

Framing the Issue

Many developing and several small island nations still lack sufficient legal and regulatory structures, resources, capacity, and in some cases even the political will to institute governance regimes needed to address growing maritime instability and corresponding sources of conflict. Many of these issues may stem from a simple lack of experience and sufficient education on basic maritime governance structures and reforms. Nevertheless, these weak or lax enforcement zones enable malign actors to operate with relative impunity; thus, enabling them to profit and plunder unimpeded at the expense of local populations and public institutions. Left unchecked, such conditions can diminish any prospect of achieving local and regional stability—let alone prevent the rise of potential large-scale insurrections and armed conflict.

Collectively, the multitude of maritime stability challenges remain at the forefront of modern great power competition and growing global instability. This is increasingly the case in the Asia-Pacific where an overly aggressive, expansionist China routinely preys on smaller states within its self-proclaimed sphere of influence. However, modern maritime disputes are not limited to the South and East China Seas. In Europe, many Black Sea countries also face aggression over contested maritime claims extending from the Crimean peninsula and waters adjacent to the Russia-backed separatist region of Abkhazia, Georgia. Europe also faces human trafficking issues and the threat of more mass migration due to lingering instability throughout the Middle East and parts of Africa. Additionally, the Middle East regularly faces threats to its vital hydrocarbon trade and industry, and several strategic maritime chokepoints.

Areas of weak maritime governance also become particularly attractive to and, thus, prone to exploitation by other destabilizing forces ranging from smaller scale, locally-based criminal elements to vast transnational criminal networks, violent extremist groups, and even some state-sponsored proxy forces. Prominent examples include Africa’s vast coastlines where maritime piracy, exploitative fishing, and the trafficking of contraband remain hotly contested issues on both coasts and, in particular, the Gulf of Guinea. Also, the trafficking of illicit narcotics continue virtually unabated throughout the Western Hemisphere—largely by way of maritime conveyance.

Amid the rising instances of maritime exploitation, crime, competition, and instability, revisiting maritime stability operations, as a core U.S. foreign assistance and national security priority, is of utmost importance—if not fundamental to improving global stability. Such strategies, however, must be committed to ensuring that all maritime nations have the necessary means and mechanisms not only to identify violations but ultimately enforce and—if necessary—defend their maritime space.

What is the Maritime Stability Operations (MSO) Framework?

MSO was formally introduced as a military operational concept in 2012, with the release of an interim naval force (i.e., U.S. Navy, Marine Corps, and Coast Guard) publication, aptly titled Maritime Stability Operations. The given U.S. Navy title is Naval Warfare Publication 3-07 or NWP 3-07. The release of NWP 3-07 represented the naval response to the Department of Defense (DOD)’s 2005 directive establishing stability operations as a “core U.S. military mission,” with a corresponding mandate to incorporate stability into service-related doctrine and planning. NWP 3-07 was released with the expectation of evolving into formal naval force doctrine and incorporation into future iterations of JP 3-07.

The actual definition of MSO varies. The first known definition appeared in a 2011 Center for Naval Analyses (CNA) report, The Navy Role in Confronting Irregular Challenges. The report identifies MSO as a core naval mission, defined as “assistance and promotion of host nation maritime infrastructure and economic development.” NWP 3-07 provides a more comprehensive definition, describing MSO as “…ensuring that the maritime commons and its structures support the safe flow of commerce and contribute to good governance. Also, by denying those who wish to engage in illegal activity using the maritime domain.” 

Unfortunately, NWP 3-07 was never updated in 2014—as was intended—and has yet to be incorporated in JP 3-07. Also, the term “maritime stability operations,” has yet to be adopted within DOD’s official “military and associated terms.” MSO’s stalled momentum is not a reflection of MSO’s diminished importance but rather a shift in U.S. Navy mission prioritization. Additionally, after many years of political infighting over lingering stabilization challenges in Iraq and Afghanistan, it became apparent that DOD wanted out of stability operations. Following the release of the 2018 Stabilization Assistance Review (SAR) and a related DOD directive issued in the same year, it became clear that the Department of State (DOS) would become the new lead for international stabilization efforts with DOD relegated to a supporting element.

The Navy’s shift in mission priorities creates a critical gap in future MSO efforts that must now be filled by DOS and the Coast Guard. Despite the Navy’s shift in mission priorities, MSO remains vital to U.S. national security and, in particular, preventing global conflicts. Echoing DOD’s earlier directive, stability “shall be given priority comparable to combat operations” in order to “secure a lasting peace” through the development of “…indigenous capacity for securing essential services, a viable market economy, rule of law, democratic institutions, and a robust civil society.” Absent this commitment from the Navy, DOS and USAID face another key challenge in that both are lacking in maritime forces and MSO expertise. The primary U.S. government agency with MSO expertise resides within the Department of Homeland Security (DHS) and, specifically, the U.S. Coast Guard.

Why the U.S. Coast Guard?

Having already articulated the immense global threat posed by growing maritime instability and how maritime governance serves as a core function or aspect in fostering maritime stability, it is important to examine the strategic Coast Guard nexus. Specifically, how does the Coast Guard perceive its roles and responsibilities related to addressing instability in the maritime environment and, in particular, maritime governance? A variety of foundational Coast Guard documents not only acknowledges the vital importance of supporting maritime governance, but how it represents the very essence of everything the Coast Guard does. More importantly, many of the same documents assert that the Coast Guard has a responsibility (i.e., obligation) to act in support of global maritime governance initiatives.

Beginning with the Coast Guard Strategic Plan 2018-2022, the Coast Guard “has the enduring responsibility… to promote our security in a complex and persistently-evolving maritime environment.” A key aspect of this is how “[t]he Coast Guard plays a critical role in strengthening governance in areas of importance.” The plan also acknowledges that pockets of weak governance are routinely being exploited by malicious actors, including “[t]ransnational criminal organizations (TCOs) and other malicious non-state actors [that] erode maritime governance, the rule of law, and regional stability.” In response to these known threats, the plan includes several governance-related objectives; i.e., objectives: 2.1 – Strengthen Maritime Governance; 2.2.2 – Leverage Joint Capabilities and Authorities to Complement DOD; and 2.2.4 – Align International Engagement with National and Departmental Priorities.

Objective 2.1, in particular, states that:

Full spectrum maritime governance provides the foundation for an adaptive and stabilizing framework that is essential to resilience. Nefarious activities destabilize and threaten vulnerable regions. To address these sources of maritime disorder, we will [emphasis added] employ our singular capabilities, authorities, and established partnerships to maintain law and order and uphold accepted behaviors.

Further emphasizing the Coast Guard’s commitment to MSO, the entire Fall 2019 edition of the Coast Guard’s Proceedings journal is singularly devoted to, “Maritime Governance: Addressing the Nation’s Challenges.” Then-Deputy Commandant for Coast Guard Operations Vice Admiral Dan Abel headlined the edition by stating that, “…the vastness, anonymity, and inherent challenges of governance over the maritime domain make [the nation] vulnerable to dangerous threats, including transnational crime, terrorist activity, illegal exploitation of natural resources, and territorial expansion” and that “…strengthening maritime governance is a key objective to enhancing the Coast Guard’s ability to police, detect, deter, and counter maritime threats.” The journal edition also emphasizes the immense “…value the Coast Guard brings to the nation and the world through implementation of its maritime governance responsibilities.” Not the least of which is how “[m]odernizing and improving maritime governance remains a top priority [emphasis added] for the service’s senior leaders.”

Other key journal contributors reinforce why the U.S. Coast Guard, unlike any other U.S. government agency or department, is best-suited to lead the implementation of MSO. The Chief of the Coast Guard’s Office of Standards, Evaluation, and Development, Captain Timothy Brown, noted that, “Maritime governance is a wide ranging topic, with a nexus to all [emphasis added] 11 of the Coast Guard’s statutory missions.” Additionally, the Chief of the U.S. Coast Guard Academy’s Government section, Capt. Russ Bowman, and an Assistant Professor for Maritime Policy, Strategy, and Governance, Dr. Tiffany Smythe, collectively emphasized that maritime governance “…is arguably the essence of everything the U.S. Coast Guard does.” 

The Coast Guard’s Security Sector Assistance Strategy also emphasizes that the “Coast Guard’s broad mission portfolio touches all aspects of maritime governance” and, thus, has “a responsibility to share its best practices and hard-fought lessons learned to positively influence the development and operational effectiveness of near-peers and aspiring organizations alike.” Enhancing good maritime governance is also a consistent theme throughout many other core Coast Guard strategic documents such as its Western Hemisphere Strategy, Arctic Strategic Outlook, and Maritime Commerce Strategic Outlook.

Even several DOD publications highlight how the Coast Guard is uniquely suited or “especially qualified” to support MSO. JP 3-07 not only references NWP 3-07, it states that “including United States Coast Guard (USCG) personnel or assets into the joint force maritime component significantly expands the scope of authorities available to the JFC [Joint Force Commander].” Current naval doctrine also uses the all-inclusive (i.e., Navy, Marine Corps, Coast Guard) label of U.S. “naval” or “maritime” forces. This inclusive language enables DOD to effectively incorporate as well as leverage complementary aspects of the Coast Guard’s unique competencies and authorities related to MSO functions. Also, a 2008 Memorandum of Agreement between DHS and DOD On the Use of U.S. Coast Guard Capabilities and Resources in Support of the National Military Strategy, outlines nine agreed upon “activities for which the Coast Guard is especially qualified.” Incidentally, these nine activities directly correspond to the core functions outlined in NWP 3-07 and most of the missions outlined in the “Global Maritime Partnerships and Security Cooperation” section of Joint Maritime Operations (JP 3-32).

Overall, the Coast Guard is clearly the preferred entity to lead MSO. The Navy’s stated mission is to “maintain, train and equip combat ready Naval forces capable of winning [not preventing] wars…” Conversely, a primary mission of the DOS is preventing wars from occurring in the first place. The Coast Guard, given its broad authorities and inherent multi-mission construct, is commonly caught in between these strategic paradigms but generally favors development and diplomacy over its defense capabilities. Emphasizing this unique position, the Commandant of the Coast Guard, Admiral Karl Schultz, described the Coast Guard as “…a maritime bridge between the Department of Defense’s lethality and the State Department’s diplomacy.” And as tensions related to maritime instability increase, the Coast Guard’s “specialized capabilities and expansive international relationships enables the United States to build partner-nation capacity and model the rules-based values and behaviors” that are fundamental to good governance. Additionally, as highlighted in the Coast Guard’s Security Sector Assistance Strategy, since “[t]he majority of the world’s maritime organizations, regardless of name or ministerial affiliation, are charged with carrying out U.S. Coast Guard-like missions,” the Coast Guard offers a much more relevant, relatable, and least escalatory option for engaging global maritime partners.

What’s Next for MSO?

Some may argue that if the Coast Guard is already doing MSO missions, then why change anything? The answer resides in the need for a clearly defined, national/strategic-level MSO mission mandate with corresponding lines of effort, leadership structures, and funding streams—as none currently exist. Understandably, this may require various legislative changes and shifting strategic frameworks. Traditionally, U.S. maritime forces operate through the lens of many separate and singularly-defined threats (e.g., drugs, illegal fishing, piracy, natural disasters), rather than through a larger, multidimensional or holistic lens. Such rigid, legacy constructs are losing relevance and, as a result, maritime forces must adapt to an increasingly globalized, transregional, and interconnected threat environment.

Shifting to a more modern, holistic approach to MSO—one that clearly prioritizes and delineates appropriate agency roles, responsibilities, and funding based on relevant expertise and strategic global demand—will maximize the potential for improved operational and strategic gains. MSO would not constitute a new Coast Guard mission. Rather, it would merge existing Coast Guard missions under a common, multidimensional strategic mission framework and focus.

This revised approach to MSO may be precisely what CNA research scientist, Joshua Tallis, strongly advocates for in his 2019 book, The War for Muddy Waters: Pirates, Terrorists, Traffickers, and Maritime Security. Specifically, Tallis suggests a growing convergence of networks across multiple streams of illicit activity, along with how maritime security specialists must “evaluate threats in this multidimensional context and collaborate with communities to achieve overarching strategic objectives.” Regarding which agency would be best suited for this mission, Tallis further asserts that:

…as maritime security threats rise in sophistication, it will be increasingly appealing to apply military resources to counter them. Military tactics, however, may not be the ideal mechanisms for addressing challenges that are often closer to crime than they are to war. Leveraging the sea services’ capabilities, without overly militarizing maritime security, is a complicated problem set that requires a more strategic and partner-oriented approach to the challenge.

Fortunately, as previously highlighted, the basic framework for building a revised approach to MSO already exists. National level planners need only model such plans off of existing documents, such as NWP 3-07, current Coast Guard strategies, DOS’ 2014 U.S. Counter Piracy and Maritime Security Action Plan, the 2008 National Research Council report on Maritime Security Partnerships, and portions of the Cooperative Strategy for 21^st Century Seapower.

Others may still question how such a framework would be organized and actually function. The answer resides within existing organic frameworks. The most prominent example is international counternarcotics efforts. The Coast Guard currently serves as the primary maritime interdiction component under the leadership and direction of DOS’ Bureau of International Narcotics and Law Enforcement Affairs. Similarly, the recently passed Maritime SAFE Act, also positions the Coast Guard—in coordination with DOS—to lead planning and implementation of another key MSO-related challenge, countering illegal, unreported, unregulated (IUU) fishing. Perhaps more importantly, a long-standing partnership already exists between DOS and the Coast Guard on a wide range of international maritime partner capacity building and disaster response efforts.

Conclusion

Ultimately, MSO remains critical to global stabilization and is therefore a key strategic priority. The basic foundational framework already exists to support modernizing a U.S. approach to MSO. It is also already widely accepted that the primary elements of MSO constitute a core Coast Guard responsibility and mission focus. And since there is little hope of MSO regaining momentum within DOD, the Coast Guard—in coordination with DOS—must strongly advocate for and fulfill its responsibility to lead MSO reform and implementation. To ensure that MSO receives the appropriate mission emphasis, global support, and relevant expertise, U.S. and international leaders must strongly advocate for formally establishing “Maritime Stability Operations” as a core mission focus of the U.S. Coast Guard for the foreseeable future—as well as demand that such efforts are fully funded and resourced to meet growing global demand for maritime stability operations.

Dan Owen is a career U.S. Coast Guard officer currently assigned as a joint strategic planner in Washington, D.C. The views expressed herein are those of the author and are not to be construed as official or necessarily reflecting the views of the Commandant or of the U.S. Coast Guard.

Featured Image: An Air Station Houston MH-65 Dolphin helicopter practices landing on the Coast Guard Cutter Dauntless during a training exercise in the Gulf of Mexico, June 10, 2016. (U.S. Coast Guard photo by Petty Officer 3rd Class Dustin R. Williams)

Ocean Governance Topic Week

By Cornell Overfield

The UN Convention on the Law of the Sea (UNCLOS), more than any other implement of international law, has underpinned the orderly delimitation and governance of the world’s oceans. Despite its status as an unparalleled accomplishment of diplomacy and international law, the treaty is not exhaustive or without ambiguities. One outstanding issue in delimitation arbitration is the relationship between the exclusive economic zone and continental shelf – specifically whether one state’s EEZ rights can overlap with another state’s continental shelf rights. What deserves greater attention is how recent court maritime boundary delimitations derided by some observers as legislation from the bench in fact follow the black letter of the law more closely than state practice or previous court decisions.

Geological continental shelves are underwater plateaus of sediment from the adjacent continent that generally terminate in a sharp slope leading to the deep sea. The legal continental shelf, first articulated in U.S. President Harry Truman’s 1946 Proclamation on the Continental Shelf, claims the resources, particularly hydrocarbons, of the continental shelf for the coastal state as a “natural prolongation” of the state’s landward territory. UNCLOS recognizes continental shelf rights over resources on the seabed and subsoil, including both deposits in the subsoil and creatures that live on the seabed. Legal continental shelves can either run to the “outer edge of the continental margin” or “to a distance of 200 nautical miles” from baselines if the continental shelf is shorter than 200 n.m. (the 350 n.m. limit is a general rule with various caveats). Article 83 clarifies that when states have adjacent or opposing coasts, shelf delimitation should be guided by the pursuit of an equitable solution.

UNCLOS also establishes a related legal zone – the exclusive economic zone. The EEZ can only extend up to 200 nautical miles from shore. In the EEZ, the coastal state enjoys exclusive rights over resources found in the water column, particularly fish, and in the underlying seabed and subsoil. As with continental shelves, where states’ EEZ claims overlap, the delimitation should be guided by the principle of equity. The coastal state also has exclusive jurisdiction over artificial platforms, including those used for oil extraction, in its EEZ.

This language yields two ambiguities. First, in the section of the Convention dealing with the shelf, do shelf rights based on distance or natural prolongation take precedence when the distances involved are less than 200 nautical miles? Second, when the area to be delimited is less than 200 nautical miles from one or both states, can EEZ and continental shelf rights be separated, since EEZs also address access and rights to the shelf’s resources?

Equidistance’s Reign

Historically, distance has taken precedence over natural prolongation and states and courts have simply delimited the continental shelf along with the EEZ, making moot the question of whether shelf and water column rights can be allocated to different states.

The ICJ issued the landmark ruling on shelf delimitation in the 1985 Malta v. Libya, in which it ruled that a delimitation based on equidistance was equitable. Libya and Malta’s coasts faced one another and were separated by less than 400 nautical miles. Libya maintained that the seafloor’s geomorphology entitled it to a portion of the continental shelf on Malta’s side of the equidistance line. The Malta Trench is a discontinuity in the continental shelf lying between Malta and the equidistant line. Since shelf rights stemmed from the principle of natural prolongation and the Malta Trench represented a break in natural prolongation for both the Maltese and Libyan coasts, Libya argued that the continental shelf boundary should run along the Trench. The ICJ, however, ruled against Libya and established a shelf boundary based on equidistance, not geomorphology. In doing so, the Court set a precedent that equity meant equidistance, not shelf delimitation based on morphology.

As states claimed EEZs, the delimitation of which has also been guided by an equidistance-as-equity principle, comprehensive EEZ-shelf borders have become the norm when within 200 n.m. of two states. A single delimitation for the EEZ and continental shelf is rooted in state practice, rather than treaty law. In a separate but related tradition, today’s court delimitations for the EEZ and continental shelf follow a three-step procedure. First, the court draws a provisional, comprehensive equidistance line between the relevant coasts. Second, the court checks for factors calling for a shift. And finally, the court checks for a disproportion between the lengths of each state’s relevant coastlines and the areas of relevant ocean allocated to each state. The result, historically, has been a single maritime boundary covering both the EEZ and continental shelf.

The Bay of Bengal’s Grey Area

In 2012, the International Tribunal on the Law of the Sea (ITLOS), the specialized court established by UNCLOS, shocked observers by appearing to repudiate the precedent of a comprehensive boundary. In Bangladesh v. Myanmar, both parties claimed that the other party lacked shelf rights beyond 200 n.m. Bangladesh argued that the shelf underlying the Bay of Bengal is a natural prolongation of Bangladesh, but not Myanmar, and thus Bangladesh should have all shelf rights beyond 200 n.m. Myanmar argued that equidistance-based delimitation within 200 n.m. would cut Bangladesh’s rights off short of the 200 n.m. mark and thus prevent Bangladesh from having a shelf entitlement beyond 200 n.m.

The court struck a compromise between these two claims. If the court had applied the logic of a single boundary based on equidistance, Bangladesh’s rights would have terminated short of 200 nautical miles. But Bangladesh’s natural prolongation argument ran contrary to the established legal (if not geological) definition of natural prolongation. Instead, the court adjusted the comprehensive boundary line, both within and beyond 200 n.m. It replaced the equidistance line with a geodetic angle bisector that preserved Bangladesh’s access to the continental shelf beyond 200 n.m. In the map below, Bangladesh has rights to the left of the solid black line, while Myanmar has rights to the right of the line. 

Court adjustments to equidistance lines are commonplace, but the result here – to connect Bangladesh to a continental shelf beyond 200 n.m. – was unprecedented.¹ As a result, in one area the court’s adjusted line was over 200 n.m. from Bangladesh’s basepoints but within 200 n.m. of Myanmar’s. In this “grey area” Bangladesh could not claim an EEZ, but Myanmar’s claim was unopposed.

To preserve Bangladesh’s access to its “outer” continental shelf, the court thus ruled that Bangladesh would have shelf rights in the “grey area” while Myanmar would have all other EEZ rights. The grey area reappeared in the ICJ’s subsequent Bangladesh v. India (2014) ruling, for the same reason. (Collectively, Bangladesh v. Myanmar and Bangladesh v. India are referred to as the Bay of Bengal cases.) In both Bay of Bengal cases, the court refrained from providing a rigorously explicit justification for this unprecedented move. Observers were fairly critical of the decision, with noted international lawyer W. Michael Reisman characterizing the rulings as legislation from the bench that overturned longstanding precedent.

The grey area established in the Bay of Bengal cases can create governance headaches for two reasons, which would be present anywhere State A has shelf rights while State B has EEZ-based water column rights. First, while State A has the right to any oil in the subsoil, State B has jurisdiction over the permitting and operation of any artificial platforms State A or a concessionaire would construct to extract the oil. Second, State A would have a right to the “creatures of the shelf” who live on the seabed, while State B would have rights to all other living creatures in the water column. This could create harms for either party, if say, fishermen from State B employ trawling methods that capture, kill, or disrupt the creatures of the shelf to which State A has rights.

The Grey Area is Proper

Despite these growing pains and contra critics, the “grey area” is actually the correct if inconvenient interpretation of UNCLOS. The text of the convention in fact permits what the court did and ITLOS in particular is guided by treaty law. Instead of overturning the precedent cemented by state practice, the Bay of Bengal cases establish a new precedent for a different subset of cases.

Consider two important differences between past precedent and the Bay of Bengal cases that make them substantially different. First, state-negotiated delimitations are not strictly bound by the Convention. When states cannot agree on a delimitation treaty, however, and refer the dispute to ITLOS, the relevant treaty law becomes far more important. Second, Malta v. Libya and other precedent-setting cases (such as Romania v. Ukraine) involved only areas within 200 n.m. of both parties, whereas the Bay of Bengal’s grey areas involved a potential “outer continental shelf” entitlement. Together, these differences make the Bay of Bengal cases significantly different to Malta, and thus the courts’ decisions are not the repudiation of precedent they sometimes are portrayed as.

More importantly, the text provides a clear justification of the courts’ separation of the water column from the seabed, even if the courts themselves did not explicitly make any argument defending their unprecedented ruling. Article 56.3 UNCLOS provides that the EEZ rights regarding the seabed set out in Part V “shall be exercised in accordance with Part VI [Articles 76-85].” Following Article 56.3’s directive to reference Part VI leads to a clear and rational basis for the court’s decision in the Bay of Bengal cases. Article 77 clarifies that continental shelf rights exist automatically, and thus logically exist prior to EEZ rights, which must be claimed. Furthermore, Article 78.1 explicitly states that the rights of a coastal state over the continental shelf (N.B., not the “outer continental shelf” – the Convention contains no mention of the “outer continental shelf”) do not affect the legal status of superjacent water columns or air. This clause applies to the EEZ as much as it does to the high seas. Taken together, this reasoning indicates that, under a strict interpretation of UNCLOS, the court’s function in a delimitation involving both the EEZ and the continental shelf is to identify first pre-existing continental shelf rights (including those beyond 200 n.m.) and delimit based on equity and thereafter construct and delimit EEZ rights.

Conclusion

Where does this leave the courts and future delimitation? The ship has long since sailed on delimitations within 200 n.m. of both states in a dispute. Much as with flags of convenience, state practice and custom have overtaken the convention’s black-letter language when delimiting EEZ and continental shelf rights within 200 n.m. While the court can determine continental shelf rights within 200 n.m. without prejudicing its subsequent award of the water column, it is too much to expect that it will embrace this reasoning in all future cases. Nevertheless, the court should utilize the logic above to justify the grey area where appropriate to compensate geographically disadvantaged states and ensure access to shelf resources beyond 200 n.m. A cursory analysis of outstanding boundary disputes indicates that the Bay of Bengal precedent may be of use on the Pakistan-India and Nigeria-Togo-Benin border.

Finally, the grey area itself ought not to be feared. The challenges of overlapping shelf and water column rights is not an issue of rule of law versus governance, but rather one of rule of law versus rule of habit. Instead of complaining about inconvenience, the Bay of Bengal case is not only a triumph for written law on the international stage but also an opportunity for states to cooperate. Prodded along by their economic self-interest, as they were when drafting the Convention itself, states sharing a grey area should find innovative ways of managing resources at a time when multilateral management of the seas is more important than ever.

Cornell Overfield is an Associate Research Analyst at CNA Corporation, a nonprofit research and analysis organization located in Arlington, VA. The views and opinions in this article are his own and do not necessarily represent the position of CNA.

Endnotes

1. Outer continental shelf entitlements are usually caught in a circular trap, where the specialized body designed to verify their existence cannot verify if the entitlement is subject to dispute, but the courts will not resolve the dispute as long as the body has not verified the OCS’ existence.

Featured Image: Emblem of the International Tribunal of the Law of the Sea (ITLOS) at its headquarters in Hamburg, Germany. (Tom Vierus/Livingdreams.tv)

Ocean Governance Topic Week

By Claude Berube

International maritime security needs a dramatic shift in thinking and commitment to the greatest transnational threat of the twenty-first century. It is not drug trafficking which, while impactful in criminal behavior and the unfortunate consequences to consumers and their families, is not an existential threat. Nor is terrorism, specifically maritime terrorism, the primary concern. While maritime terrorism has occurred, it has been rare; and while it must be addressed and perpetrators brought to justice, the frequency of incidents (USS Cole, MV Limburg, Mumbai, and so on) have been comparatively few and far between.

Instead, the international community needs to turn to mid-twentieth century psychologist Abraham Maslow whose hierarchy of needs suggest that security and safety are important but are secondary to physiological needs for any person: rest, warmth, water, food.

Food is central to warfighting and to national stability. Whether it was Napoleon or Frederick the Great who said that an army marches on its stomach, the concern over the availability of food is apparent in medieval sieges or Julius Caesar’s near obsession about the availability of corn for his legions or denying it to his enemies as he discusses in his work, The Gallic Wars. The same is true for access to grain in the Sicilian Expedition, the Roman Empire’s ties to Egypt, or in some of the decision-making in major campaigns.

In terms of maritime security, maritime life provides the most fundamental need for protein. Contrary to the popular adage used in another context, there aren’t always other fish in the sea. Fish consumption continues to increase with population, but the population of fish doesn’t necessarily increase with human demand. It is difficult to find a report on fishing that doesn’t paint a bleak picture of overfishing in most waters. Marine protein for people and as fishmeal for cattle is growing unabated. Some dire reports suggest that by mid-century commercial fishing will be unviable due to fish depletion. Fish as a resource will be fought over just as spice and oil have been the cause of conflicts, but it could be far worse considering that spice was a nicety and not a necessity in the hierarchy of needs. And while all nations are dependent on oil economically, its unavailability would not be as immediately life-threatening as would the disappearance of fundamental marine protein. In fact, some countries have already begun firing on fishing vessels intruding on local waters. This is the canary in the coal mine for maritime security.

At nearly every maritime forum, audiences are reminded of the 90/80/70 percentages: the proportions of shipping by water, human population that lives near the water, and surface of the Earth that is covered by water. In this case, we need to consider a new set of numbers that affects maritime security, 50/40/30/20, including:

• 50 percent of global fish stocks that are fully exploited
• 40 percent of the world’s population relies on fish for food
• 30 percent of the world’s fishing fleet is Chinese
• 20 percent of global fish is caught illegally

Part of the problem is that 20 percent, otherwise known as Illegal, Unreported, and Unregulated (IUU) fishing. One needs only read the work being done at the Pew Charitable Trusts or the superlative journalism by reporter Ian Urbina that cast a light on illegal fishing and its relationship to other security issues. 20 to 30 percent of fish sold in the United States, for example, was caught illegally. It can be higher elsewhere.

The U.S. Navy is not in the business of dealing with illegal fishing, as one senior Navy advocate once told this author. “That is not our job. It is not our mission. We have China to deal with.” China is at the heart of the problem given how its fishing fleets have moved well beyond the South China Sea to nearly all parts of the globe in recent decades. The issue is recognized by the current U.S. administration: “The PRC ranks first in the world for illegal, unreported, and unregulated fishing in coastal nations’ waters around the world, threatening local economies and harming the marine environment. Chinese leaders’ unwillingness to rein in these globally harmful practices does not match their rhetorical promises of environmental stewardship.” In Congress, the Maritime SAFE Act to address the threat of IUU fishing to national security was incorporated in the National Defense Authorization Act of 2020. Just a few elements of this legislation direct the inclusion of counter-IUU fishing as part of the mission of the Combined Maritime Forces, including counter-IUU fishing exercises in the annual at-sea exercises conducted by the Department of Defense, in coordination with the United States Coast Guard, and creating partnerships similar to the Oceania Maritime Security Initiative and the Africa Maritime Law Enforcement Partnership in other priority regions. It also encourages shiprider agreements.

The Navy would understandably resist this added mission for a variety of reasons. Organizationally, it changes very slowly, and is fundamentally opposed to shifting some construction resources from capital ships to smaller vessels that would be more appropriately suited for maritime security missions such as IUUF partnerships. Influential defense contractors are also predisposed to larger ship programs given the financial considerations. In addition, some of the most threatened areas, such as off the coast of West Africa, are not where the Navy can invest many assets given other threats and missions in the Western Pacific and the Middle East. While the Coast Guard is the authoritative choice on countering IUU fishing, it needs more resources, particularly given the cost of even just prosecuting captured vessels.

However, the Navy is deeply involved in great power competition, and IUU fishing is now part of that dynamic. Diminishing marine protein has the potential to destabilize China, given its insatiable appetite to feed its enormous population, and that increases the risk it poses to other nations as it tries to satisfy its essential needs at others’ expense. China will increasingly pressure states for access to their waters or outright impose itself as it has already done before. In the near term, IUU fishing denies local populations resources and economic benefits from marine protein. Today, Chinese fishing vessels are plying global waters for their own interests, but tomorrow, their white hulls will follow to protect these interests. And then, given the quickly growing size of the Chinese Navy, gray hulls will eventually ensure that fishing fleets go virtually unimpeded by any nation.

To counter this, the Department of Defense should establish a new Joint Interagency Task Force for IUU fishing (JIATF-IUUF) that has initial responsibilities off Africa. Such a JIATF, ideally led by U.S. Coast Guard officers, must work closely not only with partnered nations but with nongovernment organizations which have been at the forefront of the IUU fishing challenge. Organizations such as Global Fishing Watch, C4ADS, and others ought to be consulted, as should the Sea Shepherd Conservation Society, which has shifted its focus from challenging Japanese whalers in the Southern Ocean to successful public-private partnerships, especially in Africa. Sea Shepherd provides platforms and crews while the partnered host nations embark law enforcement detachments. This has resulted in the capture or seizure of more than 50 illegal fishing trawlers in recent years. Sea Shepherd, an organization with more than a dozen ships globally, is able to operate for about $10 million annually (due in part to most of the crew being unpaid volunteers). Whether the U.S. Government is willing to admit it or not, Sea Shepherd is providing capacity building and maritime partnerships that have been successful. In some cases, it has used former Coast Guard cutters. But the fact they are able to have such an impact at low cost ought to be looked at as a possible model for future U.S. partnerships.

Conclusion

Between NGOs, elements of U.S. government agencies, and Congressional legislation, there are positive moves toward addressing IUU fishing. Given the rapid depletion rates of fish stock, China’s growing global presence, and the impact of IUU fishing on economies, more action must be taken. Part of that action requires a reassessment of real innovative and adaptive measures that NGOs have used in partnership with host nations to counter what may be the greatest challenge in the twenty-first century.

Commander Claude Berube, USNR, PhD teaches at the U.S. Naval Academy. The views expressed are his and not necessarily those of the Academy or the Navy.

Featured Image: A Chinese fishing boat caught fire during an inspection by the South Korean Coast Guard on Friday. (South Korean Coast Guard photo)