Non-compliance
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Other states have also recognized the Convention’s positive legal force—most recently Japan, India, and Mexico at the UN General Assembly’s Sixth Committee (Legal).135 Those nations credited the Convention with operating as a fundamental document for advancing the “rule of law” throughout the world. Most coastal states, in fact, have adjusted their maritime claims to be in conformity with the Convention. For example, 144 States claim a terri- torial sea of 12 nm or less, in accordance with Article 3 of the Convention.136 Throughout the globe, many countries have areas within their law or state practice that are noncompliant, but “state practice complies largely” with the Law of the Sea as reflected in the Convention.137 Even in these instances, however, diplomacy operates within the context of the rules reflected in the Convention.
In 1982 it may have been reasonable, if perhaps somewhat optimistic, to hope that the LOSC would, in the words of its preamble, establish a “legal order for...the oceans which...will promote the peaceful uses of the seas and oceans, . . . the conservation of their living resources and the . . . preservation of the marine environment.” Thirty years later it is clear that the LOSC has failed to achieve those goals. This is in part due to continuing non-compliance with many of its provisions. Such non-compliance is a matter of serious concern for all the reasons suggested earlier. It could—and should—be addressed by States parties making more use of Part XV of the LOSC (perhaps non- governmental organizations could persuade or help States to bring test cases); by considering more use of retorsion and counter-measures; and by developing compliance mechanisms for other treaties that indirectly help to promote compliance with the LOSC. In some cases assistance in capacity building may also be appropriate.
Some may seek to downplay the significance of non-compliance with the LOSC by arguing that a certain level of non-compliance is to be expected in any legal system: as long as it is kept within reasonable bounds, there need be no undue concern. I believe that this is too sanguine a view. There are just over 160 parties to the LOSC, at least one-third of which (and quite possibly more) are in breach of at least one significant provision of the LOSC. Such a degree of non-compliance undermines the integrity and legitimacy of the LOSC. Furthermore, non-compliance provokes disputes, denies States parties some of their LOSC rights, threatens good order at sea, and harms the marine environment.
Due to the significance placed on obtaining jurisdiction over the North Pole, and given recent violations of the norms of the Law of the Sea Convention, some experts see risks of noncompliance with any recommendations from the commission that would negate a country's submission.
One significant recent violation is Russia's refusal to participate in the dispute-resolution proceeding called by the Netherlands over Russia's arrest of environmental activists who disrupted the activities of a Gazprom drilling platform in the Pechora Sea and seizure of the Dutch-flagged ship Arctic Sunrise last year.
“That's a very clear disrespect for international law. You are a party to the Law of the Sea Convention, and thereby you are bound to the dispute-settlement procedure,” Molenaar said.
Another similar example is China's refusal to participate in a dispute-resolution procedure requested by the Philippines over an area in the South China Sea outside China's exclusive economic zone that China claims for itself.
Such disregard for an international treaty can have broad impacts on various multilateral bodies and negotiation processes and bring about wider distrust and noncompliance.
“The risk is disrespect for agreed multilateral procedures. There is a risk in the background that Russia or even Canada will not act in accordance with the recommendations of the [commission], and this fear I think is more justified because of this nonappearance in the Arctic Sunrise case, and maybe even the recent developments in Ukraine” where Russia is viewed as violating the borders of Ukraine's sovereign territory.