International law regarding enforcement powers at sea.
Scholarly research reveals strong correlations between the principle of freedom of the seas, maritime spaces in international law of the sea, the provisions for the delimitation of the territorial sea, and the median-line system as a principle suitable for the delimitation of territorial seas. The mainstay of the paper is formed by an analysis of international cooperation on the law of the sea, the rules of the law of the sea, states' near-exclusive control over their coastal seas, and the definition and regime of the territorial sea. In addition, this paper provides implications for practice and research to further explore the dynamic character of the Beaufort Sea and its ecosystem, the navigational and other freedoms and duties of all states under the international law of the sea, the analysis of the law applicable to the delimitation of the territorial sea, and contemporary trends of the law of the sea.
2. Maritime Spaces in International Law of the Sea
Tanaka explains that the law of maritime delimitation plays an important role in the international law of the sea: the extent of legal rights is determined by the law of the sea with a certain degree of precision, and the international law of the sea regulates human activities in the ocean according to the legal category of ocean spaces. The outer limit of the internal waters constitutes the inner limit of the territorial sea. Coastal State jurisdiction over internal waters and the territorial sea is of territorial character. The median-line system is a guiding principle to be followed for the delimitation of the territorial sea. Tanaka remarks that the baselines of the territorial sea and those used for maritime delimitation (1) in principle coincide. Seabed characteristics may influence the location of boundaries connecting navigational interests. Seabed concessions play little role for the delimitation of continental shelves or the tracing of single maritime boundaries. Maritime delimitation is at the heart of the international law of the sea. "The definition of the spatial extent of coastal State jurisdiction is at the heart of the international law of the sea." (2)
According to Posner and Sykes, resources at sea are outside the land territory (3) of any individual nation (nations and their citizens may assert competing claims to the common pool resources of the sea): international externalities are a commonplace with activities at sea, states have a weaker interest in regulating behavior in the contiguous zone than in the territorial seas, whereas states cannot agree on all rules for the exploitation of seabed minerals because of conflicting interests. Posner and Sykes note that the resources of the high seas are generally subject to open access (states must obey certain rules in the navigation of the high seas and the exploitation of its resources). The high seas are governed by the classic principle of freedom of the seas. The freedom of the seas establishes an unregulated open access regime, reflecting the assumption that no country has the power to control oceans except along the coasts. States may gain little from the resources in the high seas due to the high costs of exploiting them.
According to this discussion, the passages are part of the territorial seas of the state or states that control those bodies of land. Posner and Sykes think that the contiguous zone is a zone of water contiguous to the territorial sea (its width is twelve nautical miles). The coastal state's power over the contiguous zone is more limited than its power over its territorial seas. Areas of the sea near the coast have high value to the coastal state. Property rights in coastal seas are not absolute. Every state values the resources of its coastal sea more than any other state, and certain use rights in the coastal seas of other states. No state has the power to control the deep seabed effectively (the seabed is like the open water subject to the freedom of the seas). No nation is the cheapest regulator of the deep seabed. (4) Baker reports that cooperation in the Beaufort Sea triangle is possible without resolving the maritime boundary: any bilateral cooperation in the Beaufort Sea triangle will require Canada and the United States to integrate outputs of international institutions into their national oceans frameworks. The Beaufort Sea triangle is of less biological and ecological significance than other parts of the Beaufort Sea. (5)
3. The Sea Rulemaking Process
Oxman insists that the law of the sea accommodates two different types of security interests: (i) global mobility (high seas freedoms constitute its legal manifestation); and (ii) coastal security (coastal state sovereignty and jurisdiction constitute its legal manifestation). The territorial temptation influences proposals to change the law of the sea. "The interest in global mobility seeks to avoid impediments to the deployment of forces by sea anywhere in the world. This interest is ordinarily associated with naval powers. In fact, the security of almost every state depends in some measure upon the mobility of the forces of naval powers for the maintenance of stability and security in its region." (6) Wilson and Kraska focus on the significance of U.S. interpretations of the law of the sea affecting American security interests.
Numerous coastal states have improperly and unlawfully sought to restrict or impair the right of innocent passage in the territorial sea. [...] The Convention recognizes a 'right' of innocent passage in a coastal state's territorial sea. The right is conferred on the international community and is not a function of the goodwill of the coastal state. Coastal states exercise sovereignty in the territorial sea subject to the rights of the international community. (7)
Houck says that the customary international law of the sea (8) is consistent with U.S. national security interests. "The U.S.'s post-World War II record of success in shaping a favorable law of the sea agenda was achieved without a serious rival." (9)
Shicun and Keyuan stress that maritime security is of vital importance to the South China Sea (10) (the concept of maritime security can apply to any seas around the world). The South China Sea is a semi-enclosed sea with multiple coastal states, is a flashpoint in East Asia for the potential conflict of national interests and threat to peace and security, and provides key sea routes for maritime shipping and naval mobility. Shicun and Keyuan claim that there are several maritime security issues (11) concerning the South China Sea. The fight against terrorism at the global level after the 9/11 terrorist attack and the economic growth and emerging regional integration in East Asia affect the discourse of the security paradigm in the South China Sea. Internal waters and territorial sea are part of the coastal state's territory. China and ASEAN countries pledge to resolve the disputes over the South China Sea in a peaceful manner and in accordance with contemporary international law. "Maritime security mainly concerns the safety of navigation, the cracking down on transnational crimes including sea piracy and maritime terrorism, and conflict prevention and resolution. [...] The most salient of the security issues in the South China Sea in the nontraditional security context is the safety of navigation." (12) Buszynski writes that efforts to exploit the oil and gas reserves of the South China Sea (13) could trigger conflict, Chinese estimates of oil reserves in the South China Sea have been optimistic, and natural gas may be more important than oil in the South China Sea. (14)
4. Meaningful Changes in the International Law of the Sea
On Taylor's reading, the rich biodiversity of the world's seamounts is threatened by a widespread industrial fishing technique known as bottom trawling (trawling vessels have ventured farther and farther into the world's oceans in search of fish). Bottom trawling is the most commonly deployed method of high seas bottom fishing. A large number of deep-sea bottom trawling vessels operate in the North Atlantic. Taylor holds that many nations and NGOs are combining forces to bring about an end to deep-sea bottom trawling. Deep-sea ecosystems are varied and complex (coral and sponge colonies are vulnerable to the destructiveness of bottom trawling gear). Remote deep-water seamounts are no longer safe. "The heavy nets destroy unique geological features of the seafloor that marine organisms use for protection and spawning. The process also decimates fragile deep-water coral and sponge ecosystems that marine biologists are only just now discovering." (15) Fitzgerald emphasizes that the black market for weapons relies heavily on merchant vessels and the freedom of the seas. Nations jealously guard their vessels' sovereignty on the high seas. (16) Duff argues that all legal questions concerning the law of the sea are governed by the United Nations Convention on the Law of the Sea. "The U.S. claims that certain law of the sea principles found in the Convention inure to its benefit and apply to other nations, not as treaty provisions per se, but rather as "reflections" of customary international law." [...] The hesitancy to accede to the Convention has left the U.S. in a somewhat confused state in terms of which law of the sea principles ought to be employed in various lawmaking and policy-making efforts." (17)
Becker states that melting ice introduces massive quantities of freshwater into the oceans and threatens higher sea levels. "Maritime delimitation disputes and the balance between coastal state control and the freedom of navigation are quintessential law of the sea issues." (18) Isanga maintains that under international law, piracy is limited to the high seas (no country has jurisdiction over the high seas). "Ownerless" territories present the same problem as the "high seas." The rules need to be updated to better combat crime on the high seas. Piracy is intrinsically linked to the regime of the Law of the Sea. Reform requires the creation of a robust system of enforcement at the international level that measures up to the challenges of contemporary sea piracy. "The increase in political motives inextricably linked to illegal activities at sea demonstrates that a distinction between motives is no longer sustainable in a world where non-state actors are either as powerful or more powerful than some states." (19)
Sterio puts it that the development of Somali piracy could contribute to the spread of maritime violence (20) (Somali pirates represent a global threat). Modern pirates are maritime terrorists linked to powerful groups like al-Qaida and the Aceh (some modern-day pirates are more akin to sea-terrorists than sea-robbers). An act committed on the high seas may qualify as piracy for most countries (the concept of universal jurisdiction over pirates is limited to the high seas). Sterio explains that the high seas requirement disqualifies many acts of maritime violence from the definition of piracy. Any state has jurisdiction to capture pirates on the high seas (determining which state could and should prosecute pirates captured at sea is difficult). "If piracy- fighting countries can establish that international custom in the area of piracy law allows nations to pursue and apprehend pirates anywhere, not simply on the high seas, then nations potentially could target Somali pirates without worrying about territorial sea restrictions." (21)
This paper seeks to fill a gap in the current literature by examining different aspects of security cooperation in the South China Sea, meaningful changes in the international law of the sea, essential frameworks for governing the seas, and stability and ordered change in the law of the sea. The implications of the developments outlined in the preceding sections of this paper suggest a growing need for a research agenda on the safeguard of the safety of navigation in the South China Sea, the sovereignty of the coastal state over the territorial sea, and the coastal state's sovereign rights over seabed resources beyond the territorial sea.
(1.) Quinn, Adam (2010), "Language, Truth and Logic: The Battle to Preserve Meaning in International Relations," Geopolitics, History, and International Relations 2(1): 124-133.
(2.) Tanaka, Yoshifumi (2006), Predictability and Flexibility in the Law of Maritime Delimitation. Portland, OR: Hart Publishing, 2.
(3.) Tomescu, Madalina, and Liliana Trofin (2010), "The Geopolitics of the Black Sea Basin," Geopolitics, History, and International Relations 2(1): 146-151.
(4.) Posner, Eric A., and Alan O. Sykes (2010), "Economic Foundations of the Law of the Sea," The American Journal of International Law 104(4): 569-596.
(5.) Baker, Betsy (2009), "Filling an Arctic Gap: Legal and Regulatory Possibilities for Canadian-U.S. Cooperation in the Beaufort Sea," Vermont Law Review 34: 57- 120.
(6.) Oxman, Bernard H. (2006), "The Territorial Temptation: A Siren Song at Sea," The American Journal of International Law 100: 840.
(7.) Wilson, Brian, and James Kraska (2009), "American Security and Law of the Sea," Ocean Development & International Law 40: 279.
(8.) Glover, Robert W. (2011), "The Theorist and the Practitioner: Linking the Securitization of Migration to Activist Counter-Narratives," Geopolitics, History, and International Relations 3(1): 77-102.
(9.) Houck, James W. (2012), "Alone on a Wide Wide Sea: A National Security Rationale for Joining the Law of the Sea Convention," Penn State Journal of Law & International Affairs 1(1): 10.
(10.) Paraschiv, Elena (2012), "The Legislation's Background and Specific Provisions of China's New Labor Contract Law," Economics, Management, and Financial Markets 7(1): 102-107.
(11.) Cho, Yoon Je (2011), "What Do Asian Countries Want the Seat at the High Table For?" Geopolitics, History, and International Relations 3(2): 95-121.
(12.) Shicun, Wu, and Zou Keyuan (2009), "Maritime Security in the South China Sea: Cooperation and Implications," in Wu Shicun and Zou Keyuan (eds.), Maritime Security in the South China Sea: Regional Implications and International Cooperation. Farnham: Ashgate, 3, 6.
(13.) Paraschiv, Elena (2012), "China's Foundational Law Regulating the Labor Market," Economics, Management, and Financial Markets 7(1): 126-131.
(14.) Buszynski, Leszek (2010), "Rising Tensions in the South China Sea: Prospects for a Resolution of the Issue," Security Challenges 6(2): 85-104.
(15.) Charles R. Taylor (2010), "Fishing with a Bulldozer: Options for Unilateral Action by the United States under Domestic and International Law to Halt Destructive Bottom Trawling Practices on the High Seas," Environs: Environmental Law and Policy Journal 34(1): 126.
(16.) Fitzgerald, Matthew Allen (2009), Seizing Weapons of Mass Destruction from Foreign-Flagged Ships on the High Seas under Article 51 of the UN Charter," Virginia Journal of International Law 49(2): 473-505.
(17.) Duff, John A. (2006), "The United States and the Law of the Sea Convention: Sliding Back from Accession and Ratification," Ocean and Coastal Law Journal 11(1/2): 10.
(18.) Becker, Michael A. (2010), "Russia and the Arctic: Opportunities for Engagement within the Existing Legal Framework," American University International Law Review 25(2): 247.
(19.) Isanga, Joseph M. (2010), "Countering Persistent Contemporary Sea Piracy: Expanding Jurisdictional Regimes," American University Law Review 59: 1283.
(20.) Paun, Stefan (2011), "The Effect of International Agreements in the European Legal Order," Geopolitics, History, and International Relations 3(1): 182-187.
(21.) Sterio, Milena (2010), "The Somali Piracy Problem: A Global Puzzle Necessitating a Global Solution," American University Law Review 59(5): 1484.
[C] Ilie Marian
Spiru Haret University
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|Publication:||Contemporary Readings in Law and Social Justice|
|Date:||Jan 1, 2012|
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