Abroad Thoughts from Home

with Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, University of British Columbia
Vancouver, Canada

The Continuing Search for Law and Order at Sea:
(and Why All States Should Join In)

Those interested in and concerned with the proper governance of the world's oceans, including the preservation and protection of the marine environment, the optimum utilisation of natural resources, and the maintenance of law and order at sea in general are dismayed when we encounter fresh evidence that our work is still cut out for us. I am writing in the immediate aftermath of two meetings, an academic conference in Australia, and a day-long workshop devoted to the results of the three-year project ostensibly focusing on Marine energy resources in Asia, but which in both events went rather further than that. Each meeting included a number of younger scholars and researchers, the experts of tomorrow. For the most part, they had implicit belief in the power of international law, and the law of the sea in particular, to guide the international community in meeting the goals I outlined at the outset. Who could possibly object to the notion of the proper governance of the world's oceans? While all of them were idealists, those of us who have been working on these issues for decades were relieved to see that they were also realists. This is just as well.

The Jakarta Post of Tuesday, December 13, 2011 contained two items which tended to bring one down to earth, if this phrase can be used in the maritime context. One in fact was earthly enough: in his inaugural speech, the newly installed Chief of the Armed Forces of the Philippines called for greater military expenditure on the part of his government in order, inter alia, to protect his country's claims to the Spratly Islands of the South China Sea. The second article was a much briefer account of an incident offshore South Korea. A South Korean Coast Guard vessel detained a Chinese vessel suspected of fishing illegally. At least two officers boarded the suspect vessel, and were stabbed by members of the crew (by the Captain, it now appears: one of the officers has since died). It is not too difficult to conjecture what had happened here - the fishers were in waters claimed by China, while the Coast Guard was attempting to enforce an overlapping claim by South Korea.

Taken on their own, neither the speech by the Philippine military leader, nor the violent incident in the waters off South Korea would seem especially noteworthy. But they come at the end of a year which has seen more than its share of a hardening of political attitudes to claims on sovereignty over disputed islands in East and Southeast Asia, and clashes between fishers and enforcement vessels in disputed waters, sometimes accompanied by the intervention of the naval forces of the state to which the fishers belong. And so we have a confrontation between the enforcement agencies (navy, Coast Guard, fisheries enforcement, or whatever it may be) of two states, each anxious to enforce the respective claims along with other countries. Wars have started over less.

Some readers may still be asking why any of this is of interest or concern to those outside the region's potentially affected, the waters of East Asia and Southeast Asia. It is an excellent question, and perhaps should be addressed before going further. Let us take the Canadian reader as an example. IZ readers can reasonably be presumed to have a keen interest in all matters international. But examples which seem to be resolutely regional can have unexpected international implications. In fact, I could place the stabbing incident in the context of the worldwide problem of so-called IUU (illegal, unregulated, unreported) fishing without any difficulty at all. And in turn, I would place IUU fishing in the context of challenges to law and order at sea in general. This much broader category includes piracy, people smuggling, the illegal trade in narcotics, armaments, wilful pollution of the Marine environment, and the like. The dollar values attached to each activity will vary, but of them all, IUU fishing is the most prevalent because it is the easiest and cheapest form of illegal activity at sea. Is Canada not concerned about illegal fishing? People smuggling? Other forms of smuggling? Marine environmental quality?

Canadian concerns with island disputes are of a much lesser order. The outstanding example of such a problem for Canada is the wrangle with Denmark over Hans Island between Ellesmere Island and Greenland, but assessing this issue as a threat to peace and security on a scale of 1 to 10, it ranks as zero. The issues for countries such as the Philippines in the South China Sea (and there are other such disputes in that body of water, and also in the East China Sea, not to mention the continuing demand by Japan for the return of the Kuril Islands from Russia) are unfortunately multifaceted. The first aspect is relatively straightforward - the Philippines claims the Spratly Islands, it is in fact in occupation only a few of them, so it wishes to maintain sovereignty over what it has, while pursuing its rights over what it has not. The problem is that "what it has not", islands it claims but does not occupy is that they are occupied by the forces of other littorals of the South China Sea - Malaysian, Vietnam, China, and Taiwan (Brunei is often included in this list, but so far as some of us can see, the only named feature in the Marine area claimed by Brunei is a reef, not an island). And these four have claims of their own. Those of Malaysia are relatively modest, and extend only to features within its 200 nautical mile claim. Vietnam, China and Taiwan, on the other hand, claim the entire Spratly group, and indeed all the other islands in the South China Sea.

These facts alone suggest a potentially dangerous situation, but the independent observer is puzzled when informed that the total land area of the Spratly Island group is no more than that of two football fields. Sovereignty over the Spratlys is not sought for land territory, therefore: it is for the maritime spaces around the islands, and the rights over living and nonliving resources that are, or maybe, associated therewith. Having said this, it must never be forgotten that when states make claim to territory, no matter how useless and insignificant it may be, national pride is inevitably involved. And herein lies a problem of some magnitude. All Spratly claimants have backed up their positions with the most extreme nationalist rhetoric available to them. They have taken every opportunity to proclaim to the people and to the world that their rights are undeniable, not subject to negotiation or compromise, inalienable, and so forth. Few states can withdraw from positions so trenchantly stated, and the governments concerned here, democratically elected and otherwise alike, simply cannot do so.

In This Issue

The Continuing Search for Law and Order at Sea
(and Why All States Should Join In)

Ian Townsend-Gault

The Tsunami and Article 9
Brent Sutherland

Over the Top?
Retreating Sea Ice and the Prospects for Rising Navigation in the Arctic

Clive Schofield

From Our Previous Issue, 7.2

Nicaea and Sovereignty: The Introduction of an Idea About the Beginnings of State Sovereignty
C.G. Bateman

The popular perception of "the prize" in the South China Sea is extensive areas of maritime jurisdiction, and the reputedly vast hydrocarbon resources of the continental shelf. Whoever holds the islands, goes the story, gets the oil and gas. This is how South China Sea issues were first explained to me when I began to work intensively in Asia in the mid 1980s. Even then, I had questions. How, I wondered, could such insignificant features possibly generate zones of jurisdiction to equal, never mind exceed, those measured from mainland coasts? Legally speaking, this was impossible. The Court of Arbitration established by Britain and France to determine unresolved continental shelf boundary matters awarded the Channel Islands, British possessions off the coast of France, mere enclaves of maritime jurisdiction. Anything greater than this would have been "disproportionate." The Arbitration between Canada and France used this principle with respect to St. Pierre et Miquelon, small French islands just south of Newfoundland. The International Court of Justice has applied "proportionality" principles numerous times, and - more importantly - so have states in settling boundaries by agreement. Conclusion: not all land is equal when it comes to maritime boundary-making. Only a handful of objective observers believe that few, if any, of the islands in the South China Sea generate anything other than a territorial sea of 12 nautical miles.

So much for the islands holding the key to the South China Sea. The second shock for the holders of the conventional wisdom is that the fabled hydrocarbon resources are probably just that - fabled, a myth. True, there are significant reserves in the South China Sea, but they are to be found in areas within 200nm of the littorals, most notably Vietnam. It should be pointed out that these conclusions are based purely on what geologists have been able to conclude on the basis of the evidence, little of which has been obtained by drilling. However, there seems to be certainty that the conditions required for the presence of continental shelf hydrocarbons simply do not exist in significantly large areas of the South China Sea. The "second Saudi Arabia" will certainly not be found there. Not for the first time comes the warning to beware the hype surrounding supposedly enormous resource deposits. People believe in El Dorado because they want to, and always have, despite continuous failures to find it.

All this might seem to bid fair to taking much of the sting out of South China Sea debates, but we are not quite there yet. National pride is still at stake regarding the sovereignty disputes, and these tend to take on a life of their own, never quite going away, retaining enough strength to continue to trouble the world. And while oil might dominate the resource debate, it is not the only ocean resource of note - the South China Sea has a significant fishery, providing by far the greater part of the protein requirements of more than 700 million people. Marine biological resource potential has yet to be fully assessed, but is likely to be of great significance based on what we know. And now we are talking about renewable resources which, if properly managed, will continue produce for generations to come (though proper emphasis should be placed on the word "if").

Now we come to a complicating factor, to put it no more strongly. In 1947, the government of the Republic of China (ousted by Communist forces in 1949) issued a map of the South China Sea and the area beyond the Luzon Strait showing eleven segments of line, some of which are drawn just off the coasts of the other littorals. All South China Sea islands lie "within" a zone formed by connecting the segments. But there was no clear statement of what exactly this map signified. By the international legal standards of the time, had it been to seabed and water column jurisdiction, it would have been rejected by the international community, except insofar as it related to the natural prolongation of the Chinese landmass. The map has been reissued by the government of the People's Republic with nine segments (and has been modified since, with the most recent version appearing this year, with a tenth segment off the west coast of Taiwan). Beijing has still not indicated what legal significance attaches to it, though most commentators assume that Chinese sovereignty over South China Sea islands would be included at a minimum). Some Chinese scholars have indicated that it shows the limits of China's claim to "historic waters" in the South China Sea. Historic waters is not a phrase generally accepted by international lawyers: bays yes, waters no. Even then, it is a concept of very limited application.

Why historic to China? Because Chinese fishers have fished there since time immemorial. No doubt. But surely so have fishers from the entire coastal region, and there is hard evidence that fleets from what is now India fished there also. In the course of 2011, there were innumerable clashes between fishing and enforcement vessels - that has been happening for decades. But 2011 marked something new - on two occasions, Chinese vessels severed the cables of seismic arrays being towed behind ships conducting petroleum exploration for Vietnamese interest holders. The only justification for such acts would be a reinforcement of a claim by China to exercise sole control over such activities in those waters. The point is, the first of these incidents took place in waters which would be on the Vietnamese side of a hypothetical median line drawn between Vietnam and the nearest island feature (this gives that feature the maximum effect it could possibly have at international law). But the area was "within" the segments. Thus, the only justification for the Chinese action would be a claim to exercise plenary jurisdiction seaward of a line "linking up" the segments. I consider this position to have little or no justification, and interestingly, it has prompted at least one leading and highly respected regional law of the sea expert to publish articles sharply critical of Chinese jurisdictional equivocation, and demanding clarification of its claims. These appear to have caught the attention many, including governments.

It is tempting to see the cable cutting incident as another form of "enforcement", not unlike the arrest of a vessel caught illegally fishing. I would also argue that it goes well beyond this. Shooting seismic is a way of acquiring information, but unlike fishing, the resource itself is totally unaffected. Severing the cables was, arguably, a disproportionate response, increasing tensions quite needlessly. It might also be an illegal act: under international law (and I should emphasise that point), and Vietnam has a better claim to those waters and continental shelf than China.

One of my first contributions to IZ, prompted by some wild talk in the media as regards claims in Arctic waters, was ultimately an essay on an aspect of law and order at sea, in that case, the application of established and accepted rules pertaining to maritime jurisdiction there, as opposed to any inclination on the part of the littoral states to "help themselves", and carve up the whole ocean between them merely because they are the littorals (the "wild talk" shows no signs of abating: I have read more than one article in respected journals which is so full of basic errors as to be either worthless, or actually harmful). A subsequent contribution I co-authored with Clive Schofield addressed a more obvious "law and order at sea" challenge: piracy. We also discussed yet another, arising from the harassment of the USS Impeccable as it carried out surveying duties within the Chinese EEZ, activities no expressly brought within the jurisdictional ambit of the coastal state. The argument is that the stories which prompted this effort should be seen as being yet further aspects of something larger, linking them in ways not always obvious at first blush.

In conclusion: is the knife attack on the Korean officers part and parcel of a more trenchant attitude on the part of China and the Chinese towards their disputed claims? Is this the link between those two apparently distinct stories in the Jakarta Post? Perhaps so. In any event, it is hard to see how military build-up, knife attacks on enforcement officers, cutting seismic cables and activities of this nature contribute in any helpful way to the advancement of the law and order at sea agenda, which is admittedly as broad one as defined here. But that result is hardly in the best interests of coastal states, including the littorals of the South China Sea.

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