Abroad Thoughts from Home
The Continuing Search for Law and
Order at Sea: 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 From Our Previous Issue, 7.2 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. |