Ocean Governance Topic Week

By Matthew Ader

Illegal, unregulated, and unreported (IUU) fishing costs Asia billions of dollars a year and constitutes a third of the entire regional catch. It has strong links with sea slavery and unregulated migration – the Thai fishing fleet employs 50,000 foreigners annually, often criminally underpaid and held in poor conditions – along with other criminal enterprises, such as underage prostitution. Moreover, it leads to dramatic overfishing, damaging local economies and causing serious environmental damage. All countries in the region acknowledge it is a major issue with cross-cutting impacts, yet generally lack the capabilities to manage it.

It is typically conceptualized as a developmental or ocean governance challenge. But in fact it represents a remarkable strategic opportunity for the United States. The U.S. has struggled to contest China’s growing maritime insurgency in the South China Sea because its presence is relatively transient and China’s is not. The U.S. could make itself far more competitive in the region by contributing substantial resources to a multilateral maritime policing effort aimed at IUU fishing.

Such action would go a long way toward embedding the U.S. deeper into the region and supporting its strategy of a free and open Indo-Pacific. Instead of relatively short security cooperation exercises, U.S. personnel and assets would work shoulder-to-shoulder with regional partners for long periods of time, and make progress on an issue that readily impacts the quality of life of regional populations.

On a broader level, this policy could reshape perceptions of the U.S. and present China with difficult strategic decisions regarding maritime provocation. First, trust in U.S. foreign policy has declined precipitously under President Trump. Regional powers are concerned about the potential for America’s China policy to spark conflict and are dubious about the strength of Washington’s security guarantees. On the other hand, China has been making a bid for regional leadership, and while few countries see its actions as friendly, it is perceived as more influential and consistently present than a mercurial America. By deeply engaging in a multilateral, local-led mission against a systemic regional problem, the U.S. can substantiate its claims that it supports a free and open Indo-Pacific rather than be seen as destabilizing and high-handed. Moreover, as Chinese vessels are major contributors to IUU fishing, strong U.S. action against the practice would highlight the U.S. as upholding beneficial norms in sharp contrast to an aggressively self-interested China.

It would also cause China tactical heartburn. Chinese vessels routinely ram and dangerously approach ships from other countries but are more circumspect around U.S. ships for fear of escalation. If U.S. service personnel were routinely embedded on coast guard and naval ships from other nations, this level of circumspection would likely expand. In turn, this would provide regional navies more space to maneuver and assert their legitimate claims – evening out the maritime playing field and positioning the U.S. to be more responsive to the competition occurring below the threshold of open conflict.

However, the U.S. Navy must confront the reality of stagnating defense budgets and growing operational demands. Chronic overwork has already led to disaster in the 7^th Fleet, and adding more taskings without substantial additional resources is not viable. Luckily, this program could be achieved at relatively low cost by utilizing assets not traditionally employed for national security. For example, IUU fishing is highly dependent on immigrant labor, with recruiters often trapping poor farmers in debt bondage. The State Department could assist international NGOs in targeting this practice. Experts from the U.S. Treasury Department and USAID could work with host nations on countering corruption in port authorities. Satellite radar data is becoming more affordable and proven to be effective in finding fishing vessels that turn off their transponders. There are some specialized capabilities which would certainly require additional investment. Sustainable training and embedding with partner navies could only realistically be done by the U.S. military. But innovative approaches that leverage the interagency can cut costs.

This policy is not without risks. Three clear issues would require action. First, it would expose U.S. personnel to greater threats. While embedding U.S. personnel on regional vessels might spur caution in Beijing, it is all too plausible to imagine a Chinese maritime militia or coast guard ship ramming a Vietnamese or Filipino vessel – only to inadvertently injure or even kill an embedded U.S. servicemember. Finding the right balance between earning the desired deterrent effect and having adequate force protection would be a challenge.

Second, it could feed into perceptions of U.S. hypocrisy or imperialism. IUU fishing is a major problem, but few countries appreciate meddling. The mission would require effective strategic communications and operating methods to emphasize a local-led, partnered approach. A particular wrinkle would be Japan, which is a major destination market for illegally caught fish. Challenging Japan on this issue might create tensions with a key ally, but failing to do so would invite accusations of hypocrisy. Designing the policy from the start with consultation from partners like Japan would be key to mitigating such challenges.

Third, while China is the biggest perpetrator of IUU fishing, it is far from being the only one. Many disputes over fishing grounds and regulation are between U.S. partners. That adds diplomatic nuance to assistance programs and would demand major efforts to resolve. Drawing on experience and trust earned through existing partnered operations would be vital. If the U.S. can leverage diplomacy to help resolve fishing disputes amongst its partners then it would make further progress on the issue and draw a sharper contrast with China’s behavior.

Another diplomatic wrinkle is the fate of boats and fishermen engaged in IUU fishing across international lines. Those arrested are often without papers, which makes deportation difficult, but governments are leery about detaining large numbers of foreigners for long periods of time. Aside from the humanitarian implications, it is a trigger point for international disputes. The U.S. could use its convening power to propose international courts and institutions to address such concerns, and perhaps draw inspiration from the Courts of Mixed Commission which helped suppress the trans-Atlantic slave trade.

Conclusion

IUU fishing is an ongoing humanitarian, economic, and environmental disaster. Working to stop it will be relatively affordable and advantageous for the U.S. if it leverages regional partnerships and interagency assets. More work should be done to explore the possibilities it offers as a matter of urgency.

Matthew Ader is a student in the Department of War Studies at King’s College London. He is an associate editor at the Wavell Room, and tweets infrequently from @AderMatthew.

Featured Image: ATLANTIC OCEAN (Aug. 17, 2009) Yu Feng, a Taiwanese-flagged fishing vessel suspected of illegal fishing activity, moves through the water before being boarded by crewmembers from the U.S. Coast Guard Cutter Legare (WMEC 912) and representatives from Sierra Leone’s Armed Forces Maritime Wing, Fisheries Ministry and Office of National Security. (U.S. Coast Guard photo by Public Affairs Specialist 2nd Class Shawn Eggert/Released)

Ocean Governance Topic Week

By Drake Long

Countries are beginning to pay more attention to their dependence on rare earth metals. Rare metals like cobalt and nickel are sought out for their applications in smart phones, electric car batteries, and countless other gadgets, but come from an exceedingly small number of places,  – virtually all of which are within the borders of the People’s Republic of China or under the control of its state-owned enterprises. This sets up a worrying imbalance in an extremely crucial supply chain that any advanced economy relies on.

There is one potential solution that has come up time and time again: mining the seabed. Unbeknownst to many, the bottom of the ocean holds deposits of rare metals that could scratch the tech-hungry world’s itch, and most of these resources are finally becoming accessible for the first time. These deposits usually take the form of polymetallic nodes sitting on certain parts of the seabed, or as crusts surrounding hydrothermal vents.

There is some wisdom in wanting to decrease one’s reliance on China for something as critical as the components that power almost every electronic device, given China’s history of economic coercion. There is also an understandable fascination with tapping a mostly untouched area like the seabed.

One way to think of the deepest, darkest parts of the world’s oceans is as a new frontier, similar to the thawing Arctic or the yawning abyss of space. There is a shortage of scientific and strategic understanding of the seabed’s value, even as humankind eagerly throws itself into the water to develop blue economies based on marine resources.

The deep sea is rapidly approaching an era reminiscent of the gold rush period of the American West, when pioneers could potentially strike it big solely by venturing out to where few others wanted to go. The risk is high, but the rewards are potentially massive – if one could get seabed mining to scale.

The problem is that nobody should be mining the seabed anytime soon. The looming environmental cost is monumental, and the race for seabed resources could reinvigorate any number of maritime disputes. Is seabed mining really worth the trouble?

A Steep Environmental Cost

Currently, seabed mining is limited to some massive state-backed projects in China and India, and to some Australian or Canadian start-ups with less-than-impressive records. There is also a major regulatory gap when it comes to seabed mining practices, which is meant to be filled by the International Seabed Authority (ISA).

The ISA was mandated to handle seabed issues by the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS, at the time of its drafting, was ill-equipped to codify an equitable way to handle seabed mining, especially since the technology at the time didn’t enable any country to have a full sense of seabed resources or how to extract them.

UNCLOS passed responsibility to the ISA, which has the uncanny mission of handing out licenses and devising an entire regulatory framework for all seabed mining in international waters. That is a tall order for what is, by any stretch of the imagination, a very small UN agency.

The ISA has been plugging away at one comprehensive seabed mining framework for years now – the Mining Code. The Mining Code will set out how and when countries and companies can prospect for seabed minerals and eventually commercially extract them.

The ISA is working under a stressful deadline to get the Mining Code finalized later this year and allow companies to begin plowing the seabed. By its own estimates, the ISA believes larger-scale commercial extraction of seabed minerals will start around 2027.

That leaves little time to write out a comprehensive and widely accepted environmental standard for seabed mining, especially given what is at stake. Nonetheless, the ISA seems up to the task, explicitly crafting the Mining Code to show how one can plausibly mine the seabed in an environmentally sustainable way.

However, the Mining Code will instead give a green light to companies to damage the ocean floor beyond all repair.

The concept that there is an environmentally responsible way to mine the seabed is highly dubious. A test that attempted to shed light on this dilemma ended up permanently scarring seabed ecosystems for years. The 1989 DISCOL test used an eight-meter-wide plough harrow to rake the center of an 11-square-kilometer plot in the Pacific Ocean, and is still considered to be the most advanced seabed mining trial to date. But ecosystems in the area haven’t recovered more than 30 years later. According to ecologist Hjalmar Thiel, who organized the DISCOL test, “The disturbance is much stronger and lasting much longer than we ever would have thought.”

Most of the world’s seabed hasn’t even been mapped, and countless deep sea environments on the bottom of the ocean lay waiting to be discovered. What is known to an extent is that the organisms living in these areas constitute some of the most fragile ecosystems on the planet, making any minor change in their environment potentially catastrophic.

https://gfycat.com/celebratedhomelydodo

Remotely operated vehicle Deep Discoverer examines deep sea ecosystems (Video via National Oceanic and Atmospheric Administration)

Case in point – the scaly-foot snail only lives at three very specific underwater hydrothermal vents on Earth. The snail had barely been discovered before its home was dug up for potential metal deposits, forcing the fascinating, rare creature onto the endangered species list.

The snail is one example of a near-extinction we knew happened. If seabed mining were to scale up to the commercial stage and plows began dragging back and forth over a seafloor that is poorly understood, then there would be countless other creatures and ecosystems that could be endangered or even thrown into extinction. And humankind likely wouldn’t even be aware of it until it is too late.

Aside from the environmental impacts, there is the question of how seabed mining will progress within national borders, where the ISA has no authority beyond setting an example. For a cautionary look at how this race for new resources can progress, it is best to look at the country poised to start seabed mining before anyone else – China.

China’s Maritime Dreams

China has made it eminently clear it takes the resource potential of the seabed seriously, and frequently seems to flaunt its topographical knowledge of the ocean floor to its neighbors and other claimants surrounding the South China Sea. 

For example, in April China released a list of Chinese-language names and locations for some 55 new undersea features – seamounts, underwater canyons, and others – in the South China Sea. China seems to treat the naming and placement of undersea features as a specious way to supplement its ambiguous historic rights argument, which China insists entitles it to nearly all of the rocks, waters, and seabed in the South China Sea. That line of reasoning was decisively struck down in a 2016 Permanent Court of Arbitration ruling, but China has never backed down from trying to justify its maximalist claims. 

Maritime features recently named and listed by China [Click to expand] (Gif via RadioFreeAsia/Google Earth)

This cluster of undersea features listed in April closely tracks with a provocative survey China conducted last year within Vietnam’s exclusive economic zone.

 That survey roped in a flotilla of coast guard ships and maritime militia, employed by both Vietnam and China, and sparked a tense stand-off between the two countries. China has regularly used survey vessels for its pressure campaigns against other claimant states in Southeast Asia. The aim of this harassment is to keep other Southeast Asian nations from exploring and exploiting resources within their waters. But in an area like the South China Sea, where the vast majority of the seabed is unmapped, the use of survey vessels and the curious publishing of lists of undersea features sitting on other countries’ continental shelves conveys another message – China knows what’s out there, and other countries in the region do not.

China’s information advantage on the ocean floor comes from investing heavily in deep sea research in recent years, and from employing the world’s largest fleet of survey vessels. The capability gap between it and its neighbors is wide and unlikely to be closed anytime soon.

China views the deep sea environment as a critical part of the marine economy, which encompasses virtually everything from fishing to submarine cables to genetic material used in state-of-the-art biomedicine. At the same time, the ostensibly civilian mission of deep sea research vessels allows China to send ships well-within the economic zones of other countries without potentially provoking a naval skirmish – thus making research vessels another element of China’s maritime insurgency against other claimants in the South China Sea, similar to the notoriously muscular China Coast Guard (CCG) and People’s Armed Forces Maritime Militia (PAFMM).

There are military applications as well, such as how topographical knowledge of the seabed makes it easier to chart paths for submarines and to ensure those submarines move around undetected.

Seabed mining is a logical priority if China wants to maintain its dominance over rare earths, as metals like cobalt and nickel are critical components for electric vehicles and smartphones, and are found on the ocean floor and in very few other places.

 The issue seabed mining enthusiasts should first consider is that these ventures can serve as yet another arena for confrontational behavior in already tense waters.

Seabed mining is not cheap – the kinds of investments necessary to make it commercially profitable by 2027 will necessitate massive subsidies and state support. China is ahead of the curve on seabed mining solely because its state-owned enterprises (SOEs) involved in seabed prospecting are so heavily subsidized they can afford to get involved in such a risky and speculative industry. Michael Lodge, general secretary of the ISA, stated that “I do believe that China could easily be among the first (to start exploitation).”

By nature of being so expensive, there is an incentive to protect seabed mining projects through extensive means. As a country securitizes the ocean around state-backed seabed mining platforms, those same state-backed companies are emboldened to operate further and further afield. They then become wrapped up in the push to assert maritime claims over the objections of neighboring countries. China’s approach to seabed mining may thus begin to look very much like its approach to oil and gas in the South China Sea, which has not been conducive to regional stability.

Couple all this with how the exact boundaries of many countries’ continental shelves are in dispute, and how those Pacific countries with a high probability of holding seabed minerals in their borders also have virtually no regulatory frameworks to handle a nascent industry like seabed mining. The end result is that many latent maritime disputes may suddenly burst back into prominence, and at a time when the region needs far less, not more, imbroglios over maritime resources and borders.

Solutions Are Needed

Seabed resources have a dangerous potential to become conflict resources, fueling disagreements over maritime boundaries across the ocean at a time when many overlapping continental shelf claims are unresolved.

There is a straightforward solution to get ahead of the problem – ban seabed mining. The international community and regional forums should promulgate a series of regional and international moratoriums on seabed mining within countries’ maritime borders immediately, and the ISA should stop issuing licenses for seabed prospecting in waters outside of any national jurisdictions. However, that outcome, while undoubtedly the best for the undersea environment and their marine ecosystems, is probably unrealistic.

One alternative is for the ISA to craft a strict environmental standard that denies any seabed mining company the use of plowing machinery on the ocean floor. If the upcoming Mining Code were to require all seabed mining to only happen through the individual collection of one polymetallic nodule at a time, then seabed prospecting and extraction will lose much of its commercial viability and revert back to being employed mostly for research purposes and perhaps the extraction of biological material necessary for pioneering new medicines.

The ISA could also demand the most stringent environmental impact assessments necessary before any seabed mining or prospecting takes place, reducing the speed of the commercialization of seabed mining to a snail’s pace and postponing exploitation by perhaps another 10-20 years.

Ultimately the ISA cannot be expected to do everything. The international community, and most especially those civil society groups most attuned to the dire environmental stakes facing the ocean in the coming years, should proactively shine a light on seabed mining wherever it takes place.

Every project and license should be documented, followed, and vigorously examined, so that when deep sea environments are irreversibly damaged and coastal communities are inadvertently affected, pressure can be exerted on those companies or countries responsible. That requires, most dauntingly, forging ties with environmentalist groups in those countries most rapacious for deep sea resources, wherever they may be.

Seabed mining cannot be allowed to take place without stringent environmental safeguards and enforcement mechanisms. At best, seafloor ecosystems will be irreparably ruined and only some species and ecosystems will go extinct. This is not an acceptable trade-off for an industry that, as of yet, has not proved itself to actually be commercially viable, and is mostly sustained by the largesse and subsidies of certain countries.

Conclusion: A Common Heritage for Mankind

Seabed governance is going to be one of the thornier issues for a humankind more dependent on the oceans and coasts in the future, and the foundation needs to be laid now for an approach that does not imperil the seabed’s ecosystem for a very dubious profit. National governments may be too indecisive to come to consensus, and international organizations like the ISA are ill-equipped to enforce anything even if they do have a change of heart or code. The process of better seabed governance begins with increased scrutiny, and will largely depend upon an alliance of marine environmentalist non-governmental organizations and the scientific research community.

The deep sea has always been and remains one of the most fascinating new frontiers on the planet, only accessible in the modern day because of incredible advances in technology. Let’s keep it how humanity found it – unspoiled.

Drake Long (@DRM_Long) is a 2020 Asia-Pacific Fellow for Young Professionals in Foreign Policy. He is a contractor for RadioFreeAsia, covering the South China Sea and other maritime issues in Southeast Asia.

Featured Image: Remotely Operated Vehicle Deep Discoverer passing over a rock outcropping. (NOAA Office of Ocean Exploration and Research, Exploration of the Gulf of Mexico 2014)

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)