Challenges to UNCLOS and Order at Sea

On 13 May, Mark E. Rosen held a lecture on the status of UNCLOS and order at sea.

Mark Rosen addressed developments which may threaten the framework of the United Nations Convention on Law of the Sea (UNCLOS) and good order at sea. Rosen examined systemic issues in states' ocean policies that due to their global implications may challenge the theoretical fabric of UNCLOS. Such policies have the potential to undo the careful balances between the rights of coastal states and maritime states that have been established under the UNCLOS. In spite of UNCLOS, there are still threats to the public order at sea, according to Rosen.

Firstly, the issue of continued proliferation of excessive maritime claims, mostly resource-based, with the China Sea as a well-known case. Several unilateral claims show lack of respect for UNCLOS, and generate excessive claims to be made by other states. Excessive straight baselines are used to gobble up significant areas of ocean, as they are the starting points for other claims on Exclusive Economic Zone (EEZ) and continental shelf claims. Another problem is claims over unsustainable rocks or reefs in South China Sea or East China Sea that generate their own EEZs and continental shelves. Rosen suggests a new mechanism for states to adjudicate baseline and territorial sea disputes on a mandatory basis and codify uniform baseline rules.

Secondly, there are terrorist and piracy activities at sea that can find protection under a false flag state. There is a decline in the concept of flag state control and a permissive legal regime when it comes to marine law enforcement. This could be responded by expanding the enforcement authority of warships, at the expense of flag state consent, on issues like trafficking of illegal immigrants and smuggling. False flags create safe havens for criminal activity, and there are also incidents of North Korean state-sponsored criminal activity. Illegal fishing causes instability in poor coastal nations who depend on fishery, for instance in West Africa and Somalia.

Globally, there is a lack of governance in some areas, which, if not dealt with properly, could cause overfishing or substandard shipping. It is hard to compel states to arbitrate their territorial disputes, and the transnational system does not have the power to hold states accountable for mistakes. Rosen put great interest in the pending arbitration between the Philippines and China over claims in the South China Sea. It could have implications on China's claims known as the "nine-dashed line" and hopefully push China towards a compromising position and lead to a precedence in solving territorial claims in the area according to UNCLOS rules.

The lecture was followed by an engaging Q&A-session.

Summary by Tom Røseth 

Publisert 13. mai 2014 00:00.. Sist oppdatert 28. juni 2016 11:07.