Evidence: Recently Added
Instead of reinforcing the existing international legal order, China is seeking to change the rules and norms that define international maritime rights. In the South China Sea, this results in friction, as China’s neighbors and the United States insist on preserving their maritime rights. Managing this friction will be challenging, but the United States and its regional friends and allies should continue to work together to encourage China to accept the existing norms and support the pillars of globalization rather than undermin- ing them. This perspective was reflected in the Department of Defense’s 2011 Annual Report to Congress on Military and Security Developments Involving the People’s Republic of China, which states, “The United States welcomes a strong, prosperous, and successful China that reinforces international rules and norms and enhances 29 security and peace both regionally and globally.” Unfortunately, that statement must still be taken as aspirational with regard to the laws, rules and norms that govern maritime security and provide order in the maritime global commons.
In truth, these norms have also been weakened by American neglect. Even as the Chinese have put pressure on the existing system, the United States has failed to exercise full, effective and active leadership. By its failure to ratify UNCLOS, the United States remains – along with such dubi- ous international companions as Iran and North Korea – fundamentally a spectator in a system that it largely created, that governs international relations and activities in the maritime domain and that has now been accepted by 161 states and the European Union.
China is asserting its interests in ways that threaten the foundational norms that govern the global maritime commons. This trend is most evident in the South China Sea, where China’s policies and activities are challenging stability and security.
China is challenging these norms in two ways. First, it is challenging established provisions of the United Nations Convention on the Law of the Sea (UNCLOS), which allows states to claim Exclusive Economic Zones (EEZs) and continental shelves. Instead, China bases its maritime jurisdictional rights on a historical a “nine-dashed line,” instead of an EEZ or a continental shelf.1 This view regard- ing how states may legitimately claim maritime resource rights increasingly is causing friction with its South China Sea neighbors.
Second, China is challenging the rights of navies to conduct operations, undertake exercises and gather intelligence in the EEZs of other states. Though China benefits substantially from the existing order, Beijing’s views about some key norms governing military activities throughout the global system diverge from those of the United States and other like-minded countries. Such Chinese activi- ties are both creating instability in the South China Sea and undermining international legal norms designed to suppress international instability and armed conflict.
The authority is not only a regime designed to manage the exploitation of the mineral resources of the deep ocean floor. It is also a prototype for new multilateral regimes in other spaces and resources. Innovations such as chambered voting by interest groups, emphasis on decision-making by consensus, formal roles for panels of experts and extensive contributions by expert bodies and individuals will be test- ed in the authority, and the successes and failures in this regime will provide lessons for the negotiation of otber regimes in the future. Members have already indicated the importance of U.S. participation in the organization through the 1994 Agreement, which addressed all the U.S. concerns witb tbe seabeds issues in UNCLOS. The opportunity to help lead this organization tbrough its substantive contributions, and even more through its inspirational standards, is now here. The Bush administration bas given its support to U.S. ratification of UNCLOS and the 1994 Agreement. The Senate Foreign Relations Committee bas endorsed it unani- mously. The potential for U.S. leadership in a new multilateral organization rests now with tbe leadership of tbe U.S. Senate, whicb should move forward by giving its advice and consent to the convention and tbe 1994 Agreement on Implementation.
The International Seabed Authority is the end result of years of negotiation, confrontation, compromise and regime building. As of June 2005, there were 148 member states, and seven consortia with contracts for exploration or exploitation of deep seabed minerals (the contract of exploration for an eighth consortium is being prepared based on the approval of its proposed plan of work at the August 2005 session of the authority).39 Few countries remain outside the convention, and the most notable non-member, the United States, is the only the regime. Given the widespread acceptance of the regime and the historically multinational composition of ocean mining consortia, it appears certain that any exploitation of deep seabed mineral resources will be conducted under the regime since operating outside it raises significant and costly questions of recognition title to recovered minerals, potential for international legal actions to impede operations, and overt or covert retribution against other activities of developers by members of the authority.
Eventually, the seabed regime may also be called on to make adjustments thrust upon it by states acting outside the authority. If the authority gains the trust of its members as an effective manager and steward of deep ocean minerals, it is possible that states may negotiate to add other deep ocean issues to the responsibilities assigned to the authority by UNCLOS and the 1994 Agreement. The subject of the management, protection and exploitation of the biodiversity of life on the deep ocean floor has gained some attention.36 While there is only limited knowledge of the scope or the fraglity of the marine life of the seabed, there have been discussions of the potential commercial value of this resource.37 The authority, charged with protecting the marine environment, must consider effects on marine life of mineral exploration and exploitation. It is conceivable that a new agreement could extend the role of the authority to the management, exploitation and protection of deep seabed biodiversity.
From the perspective of the United States, the regime for deep seabed minerals is a success. Reduced greatly in size, scope and autonomy from the proposals of the NEIO, the authority provides the exclusive right to explore, develop and exploit mineral deposits of the deep seabed and to obtain clear title to the recovered minerals; the Authority is a defined and constrained regulatory regime that provides predictability and comparability with the land-based regimes of national governments. This was the objective of the United States from the beginning of the UNCLOS process and it was achieved through persistence during periods of market ups and downs, the development of the non-aligned movement and the NIEO, and the introduction of democracy and market economies into the eastern socialist bloc. Perhaps more importantly, beyond the confines of the deep seabed, the decision-making structure of the Authority provides a demonstration of an alternative decision-making process in international organizations based on consensus and chambered voting, changing the balance from the "one nation, one vote" and "majority rules" methods of groups such as the UN General Assembly.
Both Canada and the Russian Federation have enacted regulations that the United States believes amount to unwarranted restrictions on the right of transit passage. Canada, for example, imposed a mandatory ship reporting and vessel traffic service system (NORDREG) that governs transit through the Northwest Passage.29 NORDREG covers Canada’s EEZ and the several Northwest Passage routes in the Canadian Arctic Archipelago.30 Canada specifically cites UNCLOS Article 234 to justify NORDREG, asserting that the reporting requirements are to prevent and reduce marine pollution from vessels in the delicate Arctic waters.31 Similarly, the Russian Federation has historically limited transit passage in the Northern Sea Route,32 using UNCLOS Article 234 to justify the limitations,33 and has recently implemented more extensive unilateral regulations to ensure shipping safety and environmental protection.34 With receding amounts of ice for significant portions of the year, whether the Northwest Passage or the Northern Sea Route meets Article 234’s climatic requirements for ice- covered areas is debatable.35
Under UNCLOS, coastal states seeking to prescribe sea-lanes and traffic separation schemes in straits used for international navigation must receive approval by a “competent international organization” prior to adoption.36 The International Maritime Organization (IMO) fills this role. The United States is working with other Arctic nations through the IMO to create a mandatory “Polar Code” that will cover all matters relevant to ships operating in both Arctic waters and the waters surrounding Antarctica.37 The IMO recently announced that the Polar Code will be operational as early as 2015 and will be implemented by 2016.38 The extent to which the Polar Code reconciles Russian and Canadian interests in regulating the Northern Sea Route and Northwest Passage with freedom of navigation interests will be critical.
As a nation with global maritime interests, the United States has consistently viewed the UNCLOS provisions on freedom of navigation on the high seas and in exclusive economic zones (EEZs), “transit passage” through straits used for international navigation, and “innocent passage” through territorial seas as the convention’s essential core.12 Although UNCLOS’ navigation provisions were not designed with the Arctic in mind per se, the provisions are consistent with the United States’ interest in freedom of navigation in and through the Arctic.13
Although experts differ on the imminence and extent of regular Arctic transits, some scientific studies suggest that increasing temperatures will result in a seasonally ice-free Arctic as early as the 2030s.14 As the ice recedes, many expect the opening of more expeditious travel routes,15 with consequences for international security and commercial activities.16 In particular, two trans-Arctic routes are expected to become increasingly critical: the Northwest Passage and the Northern Sea Route.17
Most obviously, and possibly what President Reagan's advisors had in mind, coastal states' rights under UNCLOS include the so-called "Pueblo clause." It says that it is not "innocent passage" for any foreign ship in the twelve-mile territorial sea to perform "any act aimed at collecting information to the prejudice of the defense or security of the coastal state" (article 19.c). But American naval vessels underway routinely take soundings and keep their radio receivers turned on, and any coastal state can claim that receiving information about the approaches to a harbor or the configuration of a coast is prejudicial to its security. Although it is possible with some ingenuity to argue that the provision does not mean what it says, foreign states are not bound by the ingenuity of American lawyers. And other provisions of the same article, like the clause forbidding "research or survey activities" (article 19.j) also contain undefined terms that can be interpreted to end American naval rights of passage. Indeed, it is also forbidden to undertake "any other activity not having a direct bearing on passage" (article 19.1). I have never understood how the United States negotiators could accept this language.
There are even more complex problems. UNCLOS sets up a special law of the sea tribunal with jurisdiction to interpret provisions of the Convention that apply equally to military and non-military uses of the sea. Although military uses can be excluded from the purview of the tribunal by particular states on ratifying the UNCLOS (article 298.1.b), a decision interpreting the UNCLOS's language relating to "innocent passage" or "transit passage" through straits, even if rendered in a case involving only non-military activities, would necessarily apply also to military uses. The distinction between military and non-military application of the tribunal provisions is thus untenable. Moreover, even if the United States and other naval powers take advantage of this available exclusion, nothing they do can stop other states from having their own military activity adjudicated by the tribunal. Despite the fact that the tribunal's decision binds only the parties before it, the tribunal's interpretation of a provision of the UNCLOS that applies equally to all parties affects international correspondence in ways potentially disastrous to American naval power.