Complexities of Maritime Laws

In the last two decades there has been a tremendous development in maritime logistics, shipping and trade accompanied by advancement in technology, concern about exploitation of oceanic resources and a massive increase in the tonnage of sea going vessels. Approximately one third of global maritime trade, passes through the South China Sea. On account of this rapidly changing maritime scenario the term maritime boundaries have at times become interchangeable with maritime jurisdiction or maritime space at times blurring maritime states’ rights, obligations and responsibilities. Demarcating maritime territories is becoming complex for various reasons not restricted to pure sovereignty and revenue generation and there is an emerging need for crisis resolution.United Nations

Convention on the Law of the Sea

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) establishes a comprehensive regime of law in the world’s oceans and high seas prescribing regulations overseeing use of the oceans and maritime resources.UNCLOS is a codification of most of the existing  customary international maritime law and provides a legal framework that is being filled in and complemented by existing and subsequently enacted international agreements and its progressive development . In the context of international shipping UNCLOS stipulates the rights and obligations of the States parties in different maritime zones that need to be adhered to through implementation mechanisms under the umbrella of the International Maritime Organization. China and Russia have signed the Convention however USA has not ratified.

The Convention in Part I provides:

Article 2
The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.

Section 2. Limits of the Territorial Sea

Article 3
Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.

Part VII of the Convention describes the freedom of the high seas , reproduced under ;

  1. The high seas are open to all States, whether coastal or land  locked. Freedom of the high seas is exercised under the conditions  laid down by this Convention and by other rules of international law.  It comprises, inter alia, both for coastal and land-locked States:

(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f ) freedom of scientific research, subject to Parts VI and XIII.

  1. These freedoms shall be exercised by all States with due regard for  the interests of other States in their exercise of the freedom of the  high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.

Article 298
Optional exceptions to applicability of section 2

  1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for

Article 311
Relation to other conventions and international agreements

  1. This Convention shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958.
  2. This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.

It has been witnessed that in the event of a dispute of title or where title cannot be convincingly proven to the satisfaction of one of the parties and parties are at divergence over title then either of the states has opted for the fundamental principle of ‘unity’ to establish its claim of sovereignty over an island.

Territorial Claims in South China Sea and UNCLOS

There is a view that UNCLOS has been drafted to ensure the interests of countries with large coastlines, sizeable archipelago and erstwhile colonial states which had in the imperialist past annexed large tracts of lands and scattered islands. Strangely uninhabited islands are entitled to claim a 200 nm EEZ. What remains intriguing is that under the framework of UNCLOS New Zealand , having a population of around five million , possesses 4 million sq km and on the other hand China with a population crossing 1.3 billion has approximately 900,000 sq km. China did not participate in the arbitration process insisting that disputes are to be resolved bilaterally through the framework of ASEAN and this viewpoint is strengthened by a cursory reading of Article 298 (1)(iii) of UNCLOS regarding optional exclusions to section 2. China emphasizes that the jurisdiction of UNCLOS is maritime and not about land and it has yet to be determined to whom these land features belong to.  China’s official position is that UNCLOS cannot be the sole basis for determining maritime rights because territorial sovereignty disputes involve general rules and norms.

Analysis of Jurisdiction of UNCLOS Tribunals and Award against China in the South China Sea Case

The United States and most other countries interpret UNCLOS as giving coastal states the right to regulate economic activities within their Exclusive Economic Zones only whereas China’s viewpoint is that UNCLOS permits it to regulate both economic activity and foreign militaries’ navigation and overflight through their EEZs. China has not accepted the ruling of the arbitration tribunal on jurisdictional basis and places reliance upon the optional exceptions to the applicability of section 2 of UNCLOS. Historical assertions involving bays or titles are covered under Article 298 of UNCLOS. Any unilateral initiation of compulsory arbitration has to satisfy UNCLOS preconditions and this is clearly not the case here. The award by the Arbitral Tribunal lost sight of the fact that the issue is primarily a core maritime delimitation and any processing of any such application by the Arbitral Tribunal involves prior and exhaustive input by legal and technical experts and adducing of evidence by all parties to the dispute. The Arbitral Tribunal interpreted the various articles of the Convention arbitrarily without appreciating the viewpoint of China on the issue of compatibility of the provisions of UNCLOS with existing bilateral and multilateral agreements or arrangements having acquired the force of law. As far back as in the year 2006 China professed its position that   it would exclude “disputes concerning maritime delimitation” from compulsory arbitration, invoking Articles 279, 280, 282, 298 and 311 of UNCLOS. In this backdrop the littoral states in the South China Sea, in their peculiar maritime environment, may consider evolving bilateral or multilateral mechanisms to resolve maritime issues in the South China Sea through negotiated settlement to the exclusion of the US. Any disagreement over the sovereignty of islands and reefs in the South China Sea involving maritime delimitation remains a territorial issue and out of the scope of the Convention on the Law of the Sea until and unless the relevant states to the dispute otherwise decide

 

Author Hafiz Munawar Iqbal

Advocate Supreme Court of Pakistan

Advisor Maritime Jurisdiction