Thursday 26 Nov 2020 | 01:35 | SYDNEY
Thursday 26 Nov 2020 | 01:35 | SYDNEY

Anarchy at sea

8 October 2010 11:31

Regarding the recent discussion on the law of the sea, here are a few comments which cover some specific questions from Julian's email, which started the thread. (By the way, the title of this post is taken from an interesting essay by William Langewiesche).

There are a number of nations that have made excessive or arbitrary claims pertaining to the Law of the Sea Convention (LOSC). North Korea claims a 50nm 'military zone', where no such right exists within the LOSC. Ecuador claims a 200nm territorial sea between its continental territorial sea and the territorial sea surrounding the Galapagos Islands (Article 3 of LOSC permits a 12nm territorial sea). India is one of a few nations which claims that military activity cannot be conducted within its exclusive economic zone (EEZ); the LOSC does not make provision for such a claim.

I am not aware of any situation in the Gulf of Mexico, a topic raised by Julian. Despite the images evoked by the name, the Deepwater Horizon drill rig (from recent BP spill fame) is located only 41nm off Louisiana, well within the US EEZ and therefore subject to US sovereign rights over the sea bed and sub soil. The maritime claim in the Gulf of Maine between Canada and the US, however, was settled by the International Court of Justice in 1984, one of the tribunals empowered in LOSC.

Australia does indeed claim sovereign rights in excess of 200nm around certain areas of Australia, including the North West Shelf (under LOSC Part VI). Specifically, coastal states can claim up to 350nm from baselines, based on the actual continental shelf. Extended continental shelf claims do not rest on an arbitrary distance from baselines. Rather, the proposal rests on some serious scientific assessment based on hydrography and morphology. Submissions are made to the UN Division for Ocean Affairs and Law of the Sea.

A couple of points regarding Judah's contribution. The LOSC makes a definitive distinction between zones within the LOSC. There are (1) zones under sovereignty (eg. territorial waters), (2) zones under sovereign rights (eg. EEZ) and (3) zones not subject to sovereignty or sovereign rights (eg. high seas). The EEZ is subject to sovereign rights, meaning jurisdiction over specific purposes, rather than exclusive rights.

Judah also makes a point about the right of free passage through territorial waters for civil maritime traffic. To elaborate, all ships, including warships, have a right of 'innocent passage' through territorial waters. But innocent passage has a specific meaning, being that it is not prejudicial to the peace, good order or security of the coastal state; warships therefore must restrict many of their normal activities under this regime.

If the right of innocent passage is to be suspended by a coastal state, there can be no discrimination. For example, a coastal state such as Japan cannot suspend innocent passage to China only. Innocent passage can only be suspended, with good reason, to all ships.

Finally, in my recent research I have been unable to confirm an official declaration by China of the South China Sea as a 'core interest' — it may only have been a comment made to a US official behind closed doors. If I'm missing something, please let me know. Given that the number one core interest for China is the integrity and longevity of the Communist Party, and number two is reunification with Taiwan under the One China policy, it really is a momentous declaration if it is correct.

For LOSC matters, the Division for Ocean Affairs and Law of the Sea web site is very useful.

Photo by Flickr user Walt Jabsco, used under a Creative Commons license.