Seas have always played an important role in trade, security and economic development. However, as the major powers clash, the seas are increasingly becoming political and strategic battlegrounds.
Adoption of the UN Convention on the Law of the Sea (UNCLOS) in 1982 was considered a great success as it established a legal framework for ocean affairs, determined maritime boundaries, established coastal states rights and rules for peaceful dispute resolution.
Yet, as conflict over the sea has increasingly arisen in the South China Sea and, to an extent, in the Arctic, doubts have been cast about the effectiveness of UNCLOS. It is not that there is no international maritime law, but whether states are willing to abide by it.
But when a legal ruling goes against the strategic needs of powerful states, enforcement is tricky. This opinion suggests a single thread emerges from the South China Sea dispute, the competition in the Arctic, and the United States relationship with UNCLOS: international maritime law is not a strict command, but rather a set of rules that might be adhered to when it is convenient for powerful states.
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UNCLOS is one of the world’s most comprehensive international treaties on ocean affairs. It was adopted in 1982 and has been in effect since 1994 and is known as the “Constitution of the Oceans” as it lays down the rules for almost all ocean use.
Its central purpose was to balance competing interests: coastal states wanted control over marine resources, while other states wanted to preserve the freedom of navigation. To solve this problem UNCLOS introduced the concept of maritime zones.
A state can exercise jurisdiction over a territorial sea, 12 nautical miles off of its coast, where it can control the use and protect the security interests of its vessels, while foreign ships have the lawful right of innocent passage. A state may have an Exclusive Economic Zone (EEZ) within 200 nautical miles, in which it has special rights to exploit and explore resources (including fisheries, oil & gas) but not the waters themselves.
Beyond this, there is the possibility of the state(s) making a claim for an extended continental shelf under Part VI of the treaty, where the seabed may be deemed to be a natural extension of the land area. Such conflicts over the zones indicate that even countries that have the same legal system can have conflicting interpretations.
UNCLOS’s central limitation is its enforcement. The convention offers ways and means for settling disputes, such as through arbitration, international tribunals, and so on, but it does not contain any autonomous means of enforcing compliance with its rulings.
International law relies mainly on the consent of the states and diplomatic pressure in enforcing court decisions, whereas the domestic legal system is enforced by police and law and enforcement agencies.
This is not to say that the effectiveness of UNCLOS has been lost, but rather the general lack of effectiveness of international law in a system where sovereign states are the principal actors.
The South China Sea
The South China Sea is one of the most vital sea regions in the world, linking the Pacific Ocean and the Indian Ocean, and estimated to be used by an annual trade valued at more than 2.4 trillion dollars and 21 percent of global trade.
The region is claimed by China, the Philippines, Vietnam, Malaysia, Brunei and Taiwan. China’s claim to most of the sea is its “Nine-Dash Line” and it has historical rights, but others believe that this runs in opposition to the maritime zones under UNCLOS.
The most notable legal challenge occurred in 2013 when the Philippines filed an arbitration case against China under the UNCLOS for the violation of its maritime rights. China, which didn’t join the case, said the tribunal had no authority over sovereignty issues, citing its 2006 declaration under UNCLOS Article 298.
The Permanent Court of Arbitration found that China lacked any historical justification for the Nine-Dash Line in 2016 and that some elements in the area did not create extended maritime zones.
The decision, however, was a huge legal interpretation of the treaty, and had limited effects. It was indignantly rejected by China, which went ahead with its operations in the disputed waters, and it is hardly likely to be influential unless there is a mechanism to implement it if a state is unwilling to accept it.
The Arctic Ocean
This is a different kind of problem in the Arctic. Arctic coastlines are shared by five countries: (Denmark through Greenland, Norway, Russia, Canada, and the United States) Ice is melting, and opening up previously frozen and non-important shipping routes and access to resources, which are now intensifying longstanding low-stakes shipping disputes into active and strategic competition.
In the Beaufort Sea, the US and Canada are in dispute with each other for their maritime boundaries. The Lomonosov Ridge is an undersea mountain range, and Canada, Denmark and Russia all say that it is part of their own continental shelves; they argue that it stretches from Ellesmere Island, Greenland or the Eurasian landmass.
In its 2021 submission to the UN Commission on the Limits of the Continental Shelf, Russia greatly extended its claim, which now significantly overlaps with the Canadian and Danish claims. Unlike China in the South China Sea, these states have not rejected UNCLOS, but are submitting their claims under its procedures.
Russia’s claim was already reviewed, and the CLCS approved recommendations on it in February 2023, while the review of Denmark’s submission is delayed until at least 2032 and likely longer in Canada’s case.
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The second point of tension is about navigation rights, specifically on the Northwest Passage, which Canada considers internal waters that must be cleared to be navigated, whereas the United States and other states consider this an international strait that’s open for free passage.
The United States plays another role in this scenario. It actively joined in the negotiations leading to the UNCLOS and embraces many of its principles, such as freedom of navigation, but has not ratified it because of opposition and concerns in its domestic arena relating to sovereignty and compulsory dispute settlement obligations.
Various governments have consistently claimed that the vast majority of the provisions of UNCLOS reflect customary international law and have thus acted accordingly, and notably in the conduct of Freedom of Navigation Operations.
This is in a sense a contradiction: the world’s foremost naval power calls for a rules-based world order but is not part of the main treaty that establishes this rules-based world order. This is not an assault on maritime law, but rather it indicates that even powerful and cooperative states interact with international law regimes based on their strategic interests.
The restrictions on the UNCLOS do not seem to be failures in one respect or another but manifestations of state behavior in various aspects. In the South China Sea, the problem took the form of the outright rejection of an unfavorable ruling. In the Arctic, it takes the form of strategic competition, outpacing the treaty’s slow procedures.
In the U.S. case, it comes in the form of a big power that embraces the treaty’s ideals but is not part of its obligations. These are forms of failure, but have the same underlying cause, namely the continued reliance of international maritime law on the good will of sovereign states, especially the powerful ones, to pursue their strategic interests when such actions clash with their legal duties to the international community.
The Taiwan Strait is a good example of this trend going beyond the South China Sea and the Arctic. China asserts control over the whole of the strait and denies that there are any “international waters” in it, which the United States, Japan and the vast majority of maritime countries do not accept, based on the provisions of UNCLOS regarding the limits of the territorial seas and the right to pass through an EEZ.
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It is not a hypothetical scenario but an actual and growing problem, evidenced by the crossing of the median line by Chinese aircraft with growing frequency since 2020, and naval transits through the strait.
It is a mix of two separate trends: the first is that the South China Sea is a region where a major power challenges an unfavorable legal situation and the second is that major powers generally use UNCLOS as a mechanism to invoke but not as a mechanism to restrain themselves.
UNCLOS should not be seen as a weak or failed treaty or its successes as being insignificant. It continues to be the most complete maritime law enforcement framework, and has brought a major level of clarity to issues of boundaries, navigation and resource use.
The flaws are apparent when states put their strategic or domestic interests ahead of their legal responsibilities. Especially powerful states can reinterpret the rules, can function completely without the rules, and can influence the outcome by political and military means instead of legal ones.
Thus, it is not a question of giving up on UNCLOS, but of enhancing the implementation mechanisms of UNCLOS and increasing the responsibility of the states that ignore it. The future stability of the oceans will be determined not solely by the fact of maritime law but also by states’ willingness to respect it.
*The views presented in this article are the authors’ own and do not necessarily reflect the views of The Diplomatic Insight.*
Uzair Ahmed
Uzair Ahmed is a student of International Relations at National Defence University (NDU), with research interests in deterrence, foreign policy analysis, and international security.
