Who Governs International Waters when Aquaman is Busy

© Photo by Simon Burchell via Wikimedia Commons

Exactly five years ago, there were fears that Russian ships were mandated to sever, and/or, wire-tap undersea data cables. This would have enabled Russian intelligence access to 97% of the world’s communication. That is because these cables carry information for the entire internet, from Facebook to SWIFT transfers and also US Military Communications – all data is carried through submarine cables.   This underscores the use of the internet by corporations, consumers and national interests. While mechanisms to ensure the protection of such cables has been mulled upon since the mid 19th century, only a few nations have adopted domestic legislation. International law dating back to the Convention on the Protection of Submarine Cable which was signed in Paris in 1884 is an example to suggest the pragmatic approach of international relations to establish legislation, jurisdiction, and jurisprudence to ensure and establish liability.

But, what about the international waters and their protection? While idealists like Arvid Pardo might like to appeal towards the ”common heritage of mankind” thus creating international responsibility, the situation is far more complex. That is because of the freedom to navigate in international waters as per the United Nations Convention on the Law of the Sea (UNCLOS). Article 55 of UNCLOS enables anyone to sail through a country’s Exclusive Economic Zone (EEZ). Moreover, all countries are allowed to fly over, lay cables, build islands, fish, and perform scientific research. One must remember, actions and the lack of it, in the high seas, fall under the jurisdiction of the country where the ship is registered or the flag which it is flying under, as per Article 288 of UNCLOS.

But, using  Pardo’s concept of international responsibility as a lens for positive enforcement, crimes of universal nature such as piracy have “universal jurisdiction”. This means that all countries can prosecute criminals involved in such acts. Such jurisdiction exists regardless of their nationality or in which part of the world the crime was committed. UNCLOS’ conception and powers permit the exercise of universal jurisdiction for crimes such as piracy. Protection of international waters is a concern shared by all member states of the United Nations and has been one of the few points of consensus for UN Security Council members since World War II.

There remains a potent question which has been left unanswered by the UNCLOS. What exactly are international waters. The nautical region surrounding the Arctic as well as Antarctica is disputed. The showdown was (and continues to be) most fierce in the South China Sea. China lays claim over several islands, and by proxy also polices the surrounding waters. Neighboring States like Taiwan, Vietnam, and the Philippines say that China’s claims overlap on their territory. During February 2020, tensions rose in the South China Sea amidst the global pandemic. China aggressively asserted its claims in the region. Soon after, Beijing established two administrative districts that cover the Paracel and Spratly Islands; the Philippines and Vietnam denounced the move. In May 2020, a standoff between Chinese, Malaysian, Vietnamese vessels ended after a  six-month standoff. This was followed by the Americans carrying out its largest naval drills consisting of three strike groups of USS Nimitz, USS Ronal Regan, and USS Theodore Roosevelt accompanied by cruiser, guided missile-destroyers. All of this, as a mark of retaliation.

The United States of America, who, although, do not have direct implications (in comparison to ASEAN countries), released a Press Statement on the thirteenth day of June. The Statement characterized the American position which claims that the United States “is a champion of a free and open Indo-Pacific” and ”Beijing’s claims to offshore resources across most of the South China Sea are completely unlawful, as is its campaign of bullying to control them”. The Statement went as far as to suggest that “the world will not allow Beijing to treat the South China Sea as its maritime empire.[…]America stands with our Southeast Asian allies and partners in protecting their sovereign rights to offshore resources, consistent with their rights and obligations under international law. We stand in defense of freedom of the seas and respect for sovereignty and reject any push to impose “might makes right” in the South China Sea or the wider region.”

For all their recent promises, China and ASEAN claimant States will struggle to bridge fundamentally divergent interests in the South China Sea. During August’s ASEAN Regional Forum, foreign ministers from the 10 members of the Association of Southeast Asian Nations (ASEAN) once again called for an expedited negotiation of the Code of Conduct for the South China Sea (COC). But many obstacles will have to be overcome before the long-expected agreement sees the light of day. In 2017, the two sides announced a draft Framework COC. But such achievements have been insufficient to settle the bilateral disputes. Another challenge to negotiating the COC is the 2016 PCA award, referred to in the recent flurry of note verbale. According to the ruling, China’s “nine-dash line” has no legal basis. It also ruled that no maritime features in the Spratly Islands are considered “islands,” meaning that they do not generate claims to an EEZ or continental shelf. If the PCA award were accepted by all parties to the dispute, the scope of disputed areas and overlapping claims in the South China Sea would be considerably narrowed. Compliance with the award would reinforce the commitment of the parties to UNCLOS, something that has been repeatedly emphasized in the COC negotiation process. Moreover, the award would inevitably make the COC more credible, both to stakeholders and to the international community as a whole. As Philippines President Rodrigo Duterte of the Philippines said in his speech to the 75th session of the UN General Assembly last week, “the Award is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish or abandon.”

Fundamentally, the situation is simple. ASEAN countries want to curb China’s behavior, but China does not want their actions to be constrained. ASEAN has little or nothing that it can do to force China to agree on an effective and substantial COC, so the negotiations have continued to deadlock on key issues. In conclusion, it can be argued that historically countries have claimed dominion over all the world’s oceans, but today, the high seas are free for all. Despite how much water there is in the world, it is a fiercely fought-over resource.

Ankit Malhotra is reading Law at Jindal Global Law School in India. He has a Bachelor of Arts Degree in International Relations from the Jindal School of International Affairs and is the Co-Founder and President of the Jindal Society of International Law.

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