The United Nations Convention of the Law of the Sea – A Paper Aegis?

Edmund McKiernan

 

Operation Cold Response is a military exercise held in Northern Norway and involves numerous NATO members Photo Source: Media Bundeswehr via Flickr Creative Commons

Operation Cold Response is a military exercise held in Northern Norway and involves numerous NATO members
Photo Source: Media Bundeswehr via Flickr Creative Commons

Last month Ghana applied for its maritime border dispute with the Ivory Coast to be arbitrated by UNCLOS – an issue complicated by the presence of the adjacent Tweneboa, Enyenra and Ntomme oil fields. Fortunately it was for the peaceful resolution of maritime border disputes that policy makers first convened UNCLOS in 1958. In the years since, the United Nations Convention of the Law of the Sea has arguably become one of the most significant achievements of the UN since its defining charter. As of October this year some 157 states and organisations (such as the EU) have signed UNCLOS, and agreed to abide by its regulations on determining territorial waters, contiguous zones, exclusive economic zones (EEZ) and continental shelves.

However the validity of UNCLOS has become increasingly pertinent in recent years as a number of factors have raised doubts as to the position of this international agreement within international law. UNCLOS in effect provides extended but limited jurisdictions for coastal states; however in order to determine these or contest infringing claims, coastal states must prepare submissions supported by scientific and legal evidence – smaller states can often lack the financial or scientific clout to contend with larger states within this arena.

Furthermore the methods used to delineate borders rely overwhelmingly on scientific criteria which while definitive, often leave room for interpretation. Canada, Denmark, Norway and the United States all have competing claims to territory and resources in the Arctic Circle, many of which are also contested by Russia; the Lomonosov Ridge– a ridge of continental crust dissecting the Arctic Circle for 1800km – is a prime example.

The ridge is claimed by Denmark and Canada, but has become a primary feature of Russian policy in the Arctic and has been host to numerous attempts to prove ownership. If Russia can prove that the Lomonosov Ridge is an extension of the Eurasian continent it would be entitled under UNCLOS to legally expand its exclusive economic zone – allowing sole exploitation rights of resources – while significantly expanding its strategic depth and sphere of influence within the Arctic.

As a result, UNCLOS arbitration over the Lomonosov ridge will be a key issue in the struggle for sovereignty in the Arctic in the years to come, unfortunately there can be no doubt that whatever the result the region will become increasingly militarised. In December of last year the international community watched with apprehension as President Vladimir Putin announced that the Arctic would become a top military priority in 2014– a promise that has been built upon. In addition the Ukraine debacle has damaged relations with NATO and forced a re-evaluation of Russia by its neighbours and the West. In a region gripped by competing territorial claims over deep water features and islands, and further exacerbated by the emerging NSRand a veritable bounty of untapped oil and natural gas – stricter controls may soon be necessary to promote ‘the peaceful uses of the seas and oceans’.

Yet unlike the UN, the UNCLOS does not have any hard power to enforce its mandate. Instead it must rely on individual states to respect and abide by its conventions, and organisations such as the International Seabed Authority (ISA) to police them. While the convention has been signed by numerous states, a select number have not endorsed this treaty – most noticeable of which is the United States.

Perhaps the most potent argument for revision of UNCLOS however is the need to re-evaluate modern practices such as bottom trawl fishing – excused under high seas fishing freedoms it directly influences and damages mankind’s ‘common heritage’ – or unprecedented actions such as island building – the latest chapter in the struggle for sovereignty in the South China Sea.

Map of the South China Sea Photo Source: Asia Maps –Perry Castaneda Map Collection via Wikimedia Creative Commons

Map of the South China Sea
Photo Source: Asia Maps –Perry Castaneda Map Collection via Wikimedia Creative Commons

Lee Hsiang-chou the Director General of Taiwan’s National Security Bureau recently reported that late last month Wu Shengli – an Admiral in the Navy of the PLA – visited five of the disputed Spratly islands in the South China Sea. These islands are amongst hundreds of other islets and archipelagos in the region, but are unique in that they are at the heart of an ambitious land reclamation project reported on by the BBC in September.

To the consternation of the regions other protagonists – Taiwan, Brunei, Vietnam, Malaysia and the Philippines – China has literally been cementing its tenuous hold on these islands. ‘Millions of tonnes of rocks and sand [are] dredged up from the sea floor and pumped into [reefs] to form new land’ on features previously too remote or small to be habitable. It is hypothesised that by expanding these islets China seeks to project itself through the construction of docks and airfields; the admiral’s visit seems to lend credence to this theory.

Strained relations and intensifying tensions in the South China Sea are not a recent phenomenon, the geopolitical importance of the region as the second most used sea lane in the worldcombined with extensive commercial opportunities and a lack of delineation has resulted in numerous clashes. In 1975 Vietnam captured Southwest Cay from the Philippines while the previous year Vietnam lost a number of the Paracel Islands to Chinese forces, and in 1988 fought and lost a bloody skirmish on Johnson South Reef – losing a number of the Spratly Islands to China. In 1949 official Chinese maps claimed vast swathes of the South China Sea within its ‘nine dotted line’ – a controversial and unilateral line of demarcation’ – but to this day it failed to secure features which provide boons under UNCLOS. The revival of the ‘nine dotted line’ on maps submitted to the UN in 2009 and an increasingly assertive China which reclassified the South China Sea as a core national interest in 2012 have put the regions claimants on edge.

But how would these artificial islands be treated under UNCLOS? The Philippines is currently pursuing legal action against China for its claims in 2009, and its activities in the South China Sea but fears that China is obscuring facts on the ground by drastically augmenting the reefs it controls. Prior to the reclamation work these reefs and islets featured scattered bunkers and outposts – and under UNCLOS would not qualify for contiguous or exclusive economic zones. However if an island can support life it is eligible for these zones, the fear in Manila is that before a ruling can be reached China will have installed civilian or military settlements and greatly complicated the issue.

UNCLOS is unlikely to rule in China’s favour; however it is entirely possible that China will not accept such a ruling. After all China has refused to accept arbitration on the issue so far and has for the most part chosen to ignore probing into its actions in the South China Sea. While simultaneously enforcing its presence militarily and dividing the opposition with economic and diplomatic overtures. Chinese belligerence in the South China Sea is apparent, whether UNCLOS and international law is up to the task is not.

 

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