Why is the difference between ‘islands’ and ‘rocks’ at sea a matter of international economic concern? Why are Chinese fishermen being transported to off-shore fisheries accompanied by naval guards?1Associated Press, “Recent Developments Surrounding the South China Sea,” accessed May 31, 2023, https://thediplomat.com/2020/01/recent-developments-surrounding-the-south-china-sea/.[/mfn] The answers to these questions all lie in growing debates over maritime policy and equitable use of national/international waters.
The main treaty governing peaceful use of the sea is the United Nations Convention on the Law of the Sea, 1982 (UNCLOS). However, as seen most prominently with the South China Sea dispute, UNCLOS has faced continuous struggle in achieving adherence to its rules. After briefly describing the rule-miqaking, implementation and dispute settlement mechanisms embedded in the UNCLOS, this article will highlight some major modern impediments present in implementing international maritime policy.
Regulation under UNCLOS UNCLOS creates three central subsidiary boards/committees which help achieve its central aims of maritime peace, equitable use of the seafloor resources and environmental protection (amongst others).1Taisaku Ikeshima, “The Implementation Mechanism of the United Nations Convention on the Law of the Sea（UNCLOS）: A General Overview,” The Law of the Sea, no. 9 (2012). Firstly, there is the Commission on the Limits of the Continental Shelfs which deals with regulations over where a coastal states shoreline ends, particularly if some states contend that their territorial waters or Exclusive Economic Zone (EEZ) extend beyond 12 or 200 nautical miles of their immediate shoreline respectively. Secondly, there is the International Seabed Authority which aims to prevent inequitable seabed mining and maintains the seabed’s status as “Common Heritage of Mankind” (Chapter XI of UNCLOS).2Ibid. Finally, there is the International Tribunal for Laws of the Sea which deals with disputes amongst member states.
With such a defined distinction between its subsidiary organs to achieve the central aims of the treaty, one would hope that UNCLOS would be largely adhered to—at least by its members states. While the institutionalised structure of UNCLOS gives the treaty more credible means of enforcement, it cannot be ignored that UNCLOS (like most UN treaties) heavily relies on domestic cooperation and recognition in the international community. Hence, while its fundamental structure creates a potentially effective framework, there still lies significant obstacles to successful implementation. This article will now discuss three of these impediments.
Lack of Credible Judicial Enforcement Mechanisms
The aforementioned forums of rule-making, enforcement and dispute settlement can only be effective in achieving their aims if they are credible ways to enforce their decisions/ensure adherence to their rules.
The lack of resolution of the South China Sea dispute highlights that such credible enforcement mechanisms have yet to be achieved. China’s historical claim over the region enclosed by its “nine-dash line” has been a cause of concern for several countries with stakes in the Sea including Philippines, Malaysia and Vietnam.3Sadia Afrin, “The Construction of China’s Artificial Island in the South China Sea :The Failure of the UNCLOS,” Journal of Conflict and Integration 1, no. 2 (December 2017): 66–97, https://doi.org/10.26691/jci.2017.12.1.2.66.[/mfn] The Permanent Court of Arbitration at Hague found no legal basis for China’s claim over the Spratly Islands (which according to UNCLOS was part of Philippine’s EEZ).3“Territorial Disputes in the South China Sea,” Global Conflict Tracker, accessed May 31, 2023, https://cfr.org/global-conflict-tracker/conflict/territorial-disputes-south-china-sea.[/mfn] However, China claims that as it did not attend the hearings, the arbitration was not conducted properly and so its rulings are not valid.4Gleice Miranda and Valentina Maljak, “The Role of United Nations Convention on the Laws of the Sea in the South China Sea Disputes,” E-International Relations (blog), June 23, 2022, https://www.e-ir.info/2022/06/23/the-role-of-united-nations-convention-on-the-laws-of-the-sea-in-the-south-china-sea-disputes/.[/mfn]
UNCLOS currently not only lacks methods to enforce its arbitration decisions, but also does not clearly outline punitive consequences for violation of its provisions. For example, Article 11 of the Convention states that “artificial islands do not qualify for permanent harbor works.”5Sanskriti Sanghi and Ryan Mitra, “‘Natural’ Islands in UNCLOS: Reframing Artificial Islands in the Context of Climate Change, Inhabitance, and Human Mobility,” Australian Journal of Maritime & Ocean Affairs 0, no. 0 (March 7, 2023): 1–14, https://doi.org/10.1080/18366503.2023.2187140.[/mfn] However, the creation of artificial islands by placing sands on rocks continues and the impact of these extensions of the shoreline on a state’s territorial waters remains disputed. As UNCLOS struggles to find a method to enforce its provisions or restrict state operation, the militarisation of the Sea continues with military equipment being placed on the contested Paracel and Spratly Islands.6Afrin, “The Construction of China’s Artificial Island in the South China Sea.”
Of course, this is not to say that the UNCLOS lacks any judicial prowess entirely. The arbitration procedure caters towards typical weaknesses such as third-party intervention and delays by specifying that legal proceedings will be both private and time sensitive.7Vinai Kumar Singh, “Analysis of Advantages and Disadvantages of Forums Prescribed under the UNCLOS and State Practice: The Way Ahead for India” 13, no. 3 (2016). However, the ability of powerful states such as China weakens the potential credibility of these judicial mechanisms in the face of countries with larger geopolitical importance. As has been discussed in studies of regional organisations and their ability to uphold democracy, the measures of reprimand/expulsion available to an organisation lose their credibility if they cannot be used against those states that are deemed “too big to fail.”8Daniela Donno, “Who Is Punished? Regional Intergovernmental Organisations and the Enforcement of Democratic Norms,” International Organisation 64, no. 4 (October 2010): 593–625, https://doi.org/10.1017/S0020818310000202.
Lack of Updates/Modernisation of UNCLOS
The second impediment to the authentic implementation of UNCLOS is its lack of reform to reflect modern humanitarian and environmental concerns associated with maritime policy. The treaty does maintain a robust amendment mechanism and can be “amended by any State party requesting the Secretary-General to either convene a conference to discuss specific amendments or through a simplified procedure.”9Anastasia Telesetsky, “Keeping UNCLOS Relevant: Revising UNCLOS to Address 21st Century Fishing, Labor Practices, Pollution, and Climate Change,” The Korean Journal of International and Comparative Law 9, no. 1 (May 28, 2021): 18–34, https://doi.org/10.1163/22134484-12340143.[/mfn] However, this procedure is yet to be used as efficiently as it could in terms of regularly updating the treaty to address modern scientific/meteorological concerns surrounding maritime welfare and the marine environment.
While the territorial regulations are subject to more intense debate (and hence harder to reform), the treaty can bolster both its relevance and utility by catering to broader concerns associated with operations at sea. The Convention already contains provisions to uphold environmental standards under Article XII. The increase of enforcement—or sanction in case of violation of—these provisions will help maintain the UNCLOS’ status as the primary instrument to deal with maritime disputes. The purpose behind expansion of these humanitarian provisions should be to transform the UNCLOS’ perception from only a legal mechanism of solving territorial disputes at sea to a general charter on the norms surrounding maritime operation.
The additional humanitarian issues the UNCLOS could tackle include labor rights at sea, pollution regulations and maintenance of marine ecosystems.9Telesetsky. There are issues of delayed payments for ship crew, poor living conditions and poor storage conditions for goods transported via sea. Greater economic repercussions for such acts can increase worker security and standards for maritime services.
In addition, UNCLOS should put greater emphasis on climate change/environmental regulations. Climate change has led to both shelf freezing and rock formation which creates land masses that may eventually become sources of contention between coastal states. Attempts to turn these rocks into artificial islands can then cause harm to marine ecosytems, as evidenced by criticism of Chinese actions which have caused “severe harm to coral reefs.”10Sanghi and Mitra, “‘Natural’ Islands in UNCLOS.” By focusing on climate change effects, UNCLOS could create a formalised system of addressing these rock formations and create systematic guidelines which prevent methods that could turn these rocks into artificial islands on a purely environmental basis. If UNCLOS increases the costs for violating environmental regulations, it will enhance its ability achieve the objective of Article 121 (3) which is to “deny tiny islands ‘the capacity to generate unfairly and inequitably huge maritime spaces,”11Ibid. without directly entering political/historical debates.
Divergent Preferences of the United States
Finally, another major obstacle which prevents UNCLOS from adopting a stronger/more credible enforcement mechanism is its lack of unanimous global approval. Most importantly, even though the United States played a central role in negotiating the treaty, the US is not a state party to UNCLOS.12“United Nations Treaty Collection,” accessed May 31, 2023, https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en.[/mfn] Lack of support from the US makes it harder to strengthen existing provisions in UNCLOS as a state with the capacity to strongly criticize potential Chinese violation has itself not acceded to the convention.
In addition, the US may not want to greatly strengthen enforcement which restricts its own operations within the South China Sea. Critically, the US would not want restrictions on their Freedom of Navigation Operations which have been considered by the PRC as a threat, as it allows them to maintain presence in Southeast Asia (especially within Vietnam/Taiwan).12“U.S. Warship Sails Past Disputed South China Sea Artificial Island in Freedom of Navigation Mission,” USNI News (blog), March 23, 2018, https://news.usni.org/2018/03/23/u-s-warship-sails-past-disputed-south-china-sea-artificial-island-freedom-navigation-mission.[/mfn]
Conclusion The case of the South China Sea dispute serves as a pressing reminder of the need to reform and strengthen laws for maritime peace. However, several obstacles stand in the way of this goal, most notably the lack of US support for UNCLOS and the lack of ways to strengthen enforcement of the Convention’s legal provisions.
However, the Convention still provides important support in maintaining consensus regarding global norms maritime policy through an institutionalised structure that is otherwise rarely seen in charters covering such broad issues. Its “compulsory adherence to dispute settlement mechanisms” 13Maljak, “The Role of United Nations Convention on the Laws of the Sea in the South China Sea Disputes.” and an institutionalised structure that gives states multiple forums to take their disputes is particularly useful for smaller/less-developed countries.
In order to make effective use of the aforementioned institutionalised forums, however, the major impediments identified in this article must be overcome. In particular, UNCLOS must work towards creating a more credible method of enforcing its regulations and awards of arbitration. Unfortunately, most UN Conventions have relied on imposing only reputational costs and rely quite heavily on domestic collaboration. The process of creating binding legal repercussions is further complicated by the fact that such reform may have to go to the Security Council and so would need approval of all 5 permanent members.
An easier improvement to UNCLOS is to modernize the treaty and expand its socioeconomic influence by directly addressing rights of seafarers and establishing environmental standards for maritime operation. This keeps UNCLOS a relevant part of policy debates and so lends to its credibility as the only global convention on the laws of the Sea. Therefore, even if it does not receive US approval, it can still impact norms of maritime operation (at least from an environmental lens) and become a constructive part of international debate in a fashion similar to the Paris Accords.
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