ISPI - Istituto per gli Studi di Politica Internazionale

06/11/2024 | Press release | Distributed by Public on 06/11/2024 05:02

China and Russia Test the Global Maritime Governance

The past couple of years has seen two major and positive milestones for the UN Convention on the Law of the Sea (UNCLOS), the framework that provides a comprehensive regime for law and order in the oceans. Firstly in 2022 it celebrated its 40th birthday as one of the most widely ratified treaties in existence. Secondly in 2023, there was the signing of the Bio-diversity Beyond National Jurisdiction Agreement (BBNJ), described by Greenpeace as the "biggest conservation victory ever".

Yet, these important signposting events stand in contrast with actions taking place in disparate areas of the globe indicating that all is not well in the governance of the global maritime commons. Enshrined within UNCLOS are two key principles: the freedom of navigation, and sovereign rights and privileges in the ocean. In this essay, I would argue that evidence is mounting to suggest that actions by Russia and China are significantly challenging both. Perhaps more worryingly, both States have also demonstrated a lack of willingness to engage with the enforcement mechanisms provided to uphold UNCLOS.

Defining the dissatisfaction with the global governance system

Both Russia and China have long sought to maximise the favourable application of certain principles enshrined in UNCLOS - a desire not dissimilar to any state with strong maritime interests. More recently however, there has been a trend towards expressing a dissatisfaction with the treaty where its provisions do not appear to support their respective national narratives.

On the one hand, Russia has become increasingly vocal with her dissatisfaction with UNCLOS in relation to the Arctic in particular. This should not come as a surprise, but the manner in which this dissatisfaction is presented gives cause for concern. In an online article, a member of the Russian parliament stated that soon the State Duma will discuss the issue of withdrawal from UNCLOS. In a direct challenge to the principle of the freedom of navigation, the article expressed dismay that UNCLOS allows other navies, in particular the United States, to operate in the Arctic region. The article also claims that Russian ratification of the treaty was "foolish".

Of no less relevance, it is worth recalling that through a combination of domestic legislation, and straight baselines drawn in 1985, Russia is trying to argue that areas of the Northern Sea Route which other States say should be accessible, are in fact Russian internal waters, and subject to Russian total control. When combined together, these statements underline a challenge not so much to the application of UNCLOS but also possible scepticism regarding the validity of UNCLOS as a whole.

On the other hand, in the East and South China Seas, the tempo of confrontations between the Chinese Coast Guard and the Philippine Coast Guard vessels, and the long-lasting confrontational posture vis-à-vis the Japan Coast Guard, continues to steadily increase. With worryingly regularity, methods such as water cannon and lasers are used by the Chinese to deter Philippine vessels from accessing areas such as the Second Thomas Shoal and Scarborough Shoal. These actions challenge freedom of navigation rights, as well as the sovereign rights of the coastal state to fish in the exclusive economic zone.

Crucially, in this respect, the more recent activities in the South China Sea draw attention to another and possibly more troubling trend. The principle of sovereign immunity for warships and government ships on non-commercial service - this would include both coastguard vessels and ships chartered by a government - is also being put to the test. A sovereign immune vessel should not be subject to the jurisdiction of another state. They also should certainly not be subject to what appears to be uses of force such as with water cannon, in the name of "law enforcement". Again, domestic legislation is being used as a tool for international policy, through the China Coast Guard Law 2021, which allows for "forcible" measures to be taken against foreign military ships and foreign government ships that "violate" domestic law in the "waters under China's jurisdiction".

Injecting resilience in the global governance process

What can states do if they feel another state is not acting in accordance with UNCLOS? The most obvious option would be to take the offending state to court. UNCLOS contains within it binding and compulsory dispute settlement mechanisms. However, in both the cases of Russia and China, such processes have been tried, but arguably failed.

The Philippines took a case to the Arbitral Tribunal convened under UNCLOS with regards to China's activities in the South China Sea. Despite numerous findings being made against China , there has been little to no practical effect - the Tribunal did not (and still does not), have any enforcement powers. Indeed, China did not even participate in the case. Of note, in international publications Chinese academics argue that the UNCLOS is but a "basic" legal framework.

Also in 2016, Ukraine started proceedings against the Russian Federation relating to the Black Sea and the Sea of Azov. Within days of the announcement cited above about possible withdrawal from UNCLOS, it was also announced by Russia that the Sea of Azov was being formally declared as "internal waters" - even though the matter is still pending for adjudication. Another tribunal designed to uphold UNCLOS has been pointedly ignored.

States concerned about maritime governance still have several options available to them. Firstly, and perhaps counter intuitively given the issues raised above, the dispute mechanism for UNCLOS still stands. UNCLOS was ratified by 168 States with differing aims: and yet a dispute mechanism was indeed established and should still be supported. Outside of the court room, a regular drumbeat of freedom of navigation assertions would both challenge excessive maritime claims as well as upholding the principle of the freedom of navigation. Perhaps most importantly of all is the need for States to call out the actions of those who appear to disregard UNCLOS, preferably publicly, or using diplomatic channels.

Global governance in a fragmented world

What of the future? In what ways will events at sea today matter tomorrow? To answer these questions, it is important to stress that, since the enactment of UNCLOS, technological advancement has consistently brought with it a review of the current governance structure. The development of such new technology, therefore, should not be allowed to become further leverage for states wishing to bypass maritime law.

In this respect, increased ease of access to the seabed for mining, for example, or the use of unmanned shipping are two areas to keep a particular focus on. Indeed, precisely because of the importance of the governance system that emerged because of the treaty, it would be both desirable, and constructive, to view the latest technological developments as new opportunities for UNCLOS, rather than challenges. There is already case law in place to show that the original provisions of UNCLOS are valid despite advances in technology. The International Maritime Organisation (IMO) is taking the lead on a "Code" for unmanned shipping, and equally states are now beginning to implement domestic law - all with the aim of ensuring the use of this new technology remains within the parameters of UNCLOS and its supporting maritime treaties such as International Convention for the Safety of Life at Sea (SOLAS)..

There is no doubt that UNCLOS is facing challenges to its authority and countries like Russia and China are leading the charge in this space. Yet, the wider potential impact of their practices should not be overstated. No state has yet withdrawn from UNCLOS and with substantial case law on its application, it is viewed as reflective of customary international law, and therefore binding on non-signatories. In 2022, the UK conducted an inquiry into the applicability of UNCLOS in the 21st Century: the overriding conclusion was that the treaty has been "largely successful", what is required is more effort at state level to enforce it. Such a result suggests that indeed challenges ahead are opportunities in disguise and that, if consistently opposed and denounced, these inconsistent practices might lead to the very opposite result: reinforcing UNCLOS and the governance it stands for, rather than its demise.