INTERNATIONAL ORDER IN THE OCEANS: TERRITORIALITY, SECURITY AND THE POLITICAL CONSTRUCTION OF JURISDICTION OVER RESOURCES AT SEA

by

James Stephen Baker

M.A. (hons), The University of St Andrews, 2004 M.A., The University of British Columbia, 2006

A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF

DOCTOR OF PHILOSOPHY

in

The Faculty of Graduate and Postdoctoral Studies

(Political Science)

THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)

October 2013

© James Stephen Baker Abstract

The desire for territory has been a frequent cause of conflict. Latterly, a territorial integrity norm has emerged, rendering conquest illegitimate and contributing to peace. Studies of this development have not examined the politics of maritime space, despite the construction of a territorial-like order at sea last century.

The oceans are materially, legally and politically distinct to land, making the extrapolation of a norm of territorial integrity to the oceans problematic. Nevertheless, this thesis concludes that the history of, and standards relating to land have conditioned the practices of states at sea. In particular, it has been assumed that the forceful acquisition of offshore zones and resources belonging to other states would breach an important international standard.

I demonstrate this through a study of the changing practices of states towards marine space and by analysing the perspectives of decision-makers as they constructed the contemporary maritime property rights order. In contrast to the past, today states almost exclusively do not seek to expand beyond those offshore areas to which they are entitled. Concerns about the possibility for territorial conflict to take place at sea drove the creation of the present-day marine property rights order. In doing so, states took for granted the illegitimacy of conquest within ocean space. As they created the present-day maritime regime, states agreed that each coastal state would be allocated exclusive rights to maritime resources proximate to their coasts in a spatially fair manner. Both the illegitimacy of conquest and the legitimacy of this maritime order are necessary – and mutually reinforcing – conditions for its stability.

Case studies of maritime disputes in the Arctic Ocean and South China Sea suggest states mostly make boundary claims based on the vocabulary of international law. Despite popular concerns, neither China nor Russia can be understood to have breached the prohibition on conquest. However, concern about their intentions has led to serious politicization of their perceived claims, suggesting the international community would react robustly to cases of forceful maritime expansionism. Though a norm proscribing conquest cannot assure the absence of conflict over offshore resources, it should dampen it.

ii Preface

This dissertation is original, unpublished, independent work by the author, James Stephen Baker.

iii Table of Contents

Abstract...... ii Preface...... iii Table of Contents...... iv List of tables...... vii List of figures...... viii Acknowledgements...... ix

Introduction...... 1

The Oceans: A Political Realm...... 3 International Relations Theory and the Oceans...... 7 Existing Maritime Political and Legal Studies...... 13 Summary and Outline of the Thesis...... 20

Part I: Territoriality and Security in the Oceans

Chapter 1: Maritime Territorial Integrity: Theory and Methodology...... 26

Land and Sea: Legally Different...... 27 Flag State Jurisdiction...... 28 Port State Jurisdiction...... 30 Coastal State Jurisdiction...... 31 Summary...... 38 The Land and the Sea in the Changing Laws of Force...... 39 Land and Sea: Socially and Politically Distinct...... 49 Summary...... 52 Explaining States' Territorial Practices at Sea: Power and Security...... 53 Explaining States' Territorial Practices at Sea: Interests and Material Capacity...... 58 Explaining States' Territorial Practices at Sea: Ideas and Appropriateness...... 61 Methodology and Case Studies...... 66 Data...... 70

Chapter 2: Territoriality and Security in the Oceans: Past and Present...... 72

The Oceans in the Ancient World...... 73 The Medieval and Early Modern Period...... 74 The Sovereignty of the British Seas...... 76 Dominium Maris Baltici...... 84 The Oceans Beyond Europe...... 89 Summary and Assessment: Sovereignty, Power and Marine Space...... 96 The Freedom of the Seas...... 101 The Construction of the Contemporary Marine Property Rights Order...... 106 Contemporary Ocean Politics...... 110 A Note on Baselines...... 113 Conclusion...... 115

Chapter 3: Territoriality and Security at the UN Law of the Sea Conferences...... 117

iv The Territorial Sea, Security and the State...... 118 Security and the Zones Beyond the Territorial Sea...... 123 Conclusion...... 133

Part II: The Political Construction of Jurisdiction over Resources at Sea

Chapter 4: Early Moves: Defining the Consensus...... 139

The Social Construction of Marine Resource Jurisdictions...... 140 Common Property, The Freedom of the Seas and Ocean Enclosure...... 143 Defining the Continental Shelf...... 154 The Breadth of the Territorial Sea...... 159 Defining Maritime Boundaries...... 163 The Land Dominates the Sea...... 167 The Continental Shelf...... 168 Living Resources...... 171 Conclusion...... 175

Chapter 5: Consensus Cemented: The Third UN Conference on the Law of the Sea and Beyond..... 178

Decolonisation, the Law of the Sea...... 179 Continuity and the Third Conference...... 185 The Land-Locked and Geographically Disadvantaged...... 186 Power Politics and the Deep Seabed...... 193 Conclusion...... 202

Part III: Case Studies

Chapter 6: Maritime Boundaries, Islands, Disputes and the Law...... 205

Territorial Integrity, Expansionism, Disputes and Conflict...... 206 Territorial Disputes and the Norm of Territorial Integrity...... 208 Boundaries and Disputes on Land and At Sea...... 210 The Evolution of Maritime Boundary Law...... 213 Seafloor Highs and the Limits of the Continental Shelf...... 222 The Regime of Islands...... 225 Historic Waters and Historic Rights...... 230 Further Observable Implications...... 233 Conclusion...... 234

Chapter 7: The Arctic Ocean...... 236

Land, Sea and Conflict in the Arctic...... 238 Order Reaffirmed...... 245 The Physical and Political Geography of the Arctic Ocean...... 251 Arctic Claims and Disputes...... 254 The Beaufort Sea...... 254 The Lincoln Sea...... 258 The Barents Sea...... 260 The Bering and Chukchi Seas...... 263

v The Central Arctic Ocean...... 264 Conclusion...... 266

Chapter 8: The South China Sea...... 267

The Physical and Political Geography of the South China Sea...... 270 The Spratly Islands Dispute...... 271 Assessment...... 274 Vietnam and Malaysia's Maritime Claims...... 277 The Philippines' Maritime Claims...... 279 Assessment...... 280 People's Republic of China and Republic of China (Taiwan)...... 280 A Historic Waters/Rights Claim?...... 281 A Maritime Boundary Claim?...... 283 A Claim to the Islands?...... 285 Assessment...... 286 China's and Taiwan's Statements and Actions...... 287 Summary and Assessment...... 296 International Reaction...... 300 Summary and Assessment...... 307 Resolving the South China Sea Dispute...... 308 Putting Things in Context: the Gulf of Tonkin...... 309 Conclusion...... 311

Conclusion...... 313

The Historical and Contemporary Development of Jurisdiction Over the Oceans...... 314 Territoriality and Security in the Oceans...... 316 The Normative Constitution of Maritime Space...... 318 Maritime Disputes...... 321 Implications of the Theory...... 324 Weaknesses of the Research...... 327 Intellectual Contribution and Future Research...... 330

References...... 335

vi List of Tables

Table 1: The Changing Character of Conflict on Land and at Sea...... 23

vii List of Figures

Figure 1: UNCLOS Maritime Zones...... 32 Figure 2: Arctic Ocean Maritime Boundaries and Disputes...... 253 Figure 3: The Beaufort Sea Dispute...... 255 Figure 4: The Lincoln Sea Dispute...... 259 Figure 5: Map of the South China Sea Maritime Claims...... 277

viii Acknowledgements

I began my career at the University of British Columbia in 2005 for a master's degree and was invited back to begin my PhD three years later. During both my degree programmes at UBC, I have had the benefit of excellent teaching on a range of subjects. My thanks go to the faculty of the Department of Political Science who have provided so much of the context on which I have drawn in the research for this thesis. The work is undoubtedly all the stronger because of them.

If it were not for the generous offer of my supervisor, Michael Byers, to work with him on a project analysing Arctic maritime boundary disputes, I would certainly never have taken the path that has led to the researching and writing of this thesis. Michael has been a generous and supportive supervisor throughout my time at UBC. Being his student has afforded me opportunities to learn from him, but he has also made me feel included as an equal in the research project on which we have worked together. His advice throughout the writing of this thesis has proved invaluable.

I am also indebted to the members of my committee – Richard Price, Kal Holsti and Ian Townsend-

Gault – who have provided useful feedback on drafts and in conversations about the project. I have also been lucky enough to present my work and benefit from feedback at the British International Studies Association

Annual Conference, the International Congress of Arctic Social Sciences, ArcticNet's Annual Scientific

Meetings, the International Polar Year Conference and the International Studies Association Annual

Convention.

At several points during my PhD, I also attended workshops relating to Arctic maritime boundaries.

The workshops were attended by a range of accomplished diplomats, academics and other professionals.

From them, I learnt a great deal about the interaction of law and science involved with establishing jurisdiction over maritime resources. Several of the participants have also provided useful feedback and advice on this thesis. In particular, my thanks go to Ted McDorman for helping me to understand some important legal distinctions.

I was also privileged to be able to attend the Rhodes Academy of Oceans Law and Policy in the

ix summer of 2011. It was not until I attended this training that I realised how superficial some of my thinking about the law of the sea was. For the intensive and detailed lectures from which I learnt so much, I am grateful. My thanks also go to ArcticNet for providing the funding to attend the Academy through their training program. In addition, ArcticNet provided a substantial amount of the funding for my PhD, along with the University of British Columbia and the Social Sciences and Humanities Research Council.

Finally, without the love and support of my friends and, particularly, my family, I would never have been able to achieve the work contained within this thesis. To them, I owe the biggest thanks of all.

x INTRODUCTION

In July 2011, a Daily Mail headline read “Russia Calls on UN to Redraw Map of the Arctic to Grab Lion's

Share of Untapped 90 Billion Barrels of Oil.”1 Almost two years later, Forbes published an article entitled

“China and the Biggest Territory Grab Since World War II.”2 News stories such as these seem to belong more to the eighteenth or nineteenth centuries than the twenty-first. Throughout much of modern history, boundaries have been unstable, shifting things. States' territorial security depended more on their ability to employ tools of military coercion than international rules. However, conquest today is illegal and the decolonisation movement of the mid-twentieth century brought an end to the age of territorial empires. Most states are not at serious risk of territorial dismemberment through the forceful actions of others. But, neither of the above headlines referred primarily to territorial expansionism on land. Both were concerned with the behaviour of states towards maritime space. China has raised suspicions about its potential expansionist intentions in the South China Sea and Russia has caused concern in the Arctic Ocean. This politicisation of maritime space is unprecedented in recent years. It provides a backdrop to this analysis, which seeks to assess whether the contemporary maritime order resembles that on land today or in history, and to understand why.

Maritime space is often considered as a battlefield in which contests play out relating to the dominant politics of the land, or as a surface to be used for the transportation of goods between their land- based destinations. However, as the South China Sea and the Arctic Ocean disputes illustrate, the oceans are a highly political realm subject to contestation themselves. Nevertheless, much international relations scholarship, and particularly the main theoretical debates within the discipline, have an under-developed view of the oceans. The application of major IR theories to maritime space is unclear. Issue-specific studies,

1 Daily Mail Reporter, 'Russia Calls on UN to Redraw Map of the Arctic to Grab Lion's Share of Untapped 90 Billion Barrels of Oil', Mail Online, 7 July 2011, available at {http://www.dailymail.co.uk/news/article-2012316/Russia- wants-map-Arctic-Sea-boundaries-redrawn-grab-mineral-energy-resources.html} accessed on 31 July 2013. 2 Gordon G. Chang, 'China and the Biggest Territory Grab Since World War II', Forbes, 2 June 2013, available at: { http ://www.forbes.com/sites/gordonchang/2013/06/02/china-and-the-biggest-territory-grab-since-world-war-ii/ } accessed on 31 July 2013.

1 such as those on territorial conflicts have also neglected maritime disputes, sometimes deliberately. These studies have concluded that the desire for territory has been a leading cause of some of the most violent, intractable and deadly conflicts in history. Latterly, however, a norm of territorial integrity has crystallized, which has rendered the forceful alteration of borders illegitimate. Despite the construction of a territorial-like order at sea in the second half of the twentieth century, work on this optimistic development has also neglected maritime space.

This myopia leaves few tools with which to understand whether the ocean order is more likely to resemble the past disorder or the contemporary stability of the politics of jurisdiction over land. Given that the ocean covers some seventy per cent of the surface of the earth, this limits our ability to assess when conflicts are likely to emerge in the international system and what shape they will take when they do.

Furthermore, most work on the maritime regime itself has focused on the negotiations leading up to the establishment of the modern law of the sea. These studies do not explicitly address issues relating to military contestation over maritime space. However, their almost exclusively materialist explanations for the origins of the contemporary ocean regime might suggest a comparatively weak order. The maritime regime, on this analysis, is vulnerable to change when the interests of states underpinning it shift, or the distribution of power alters in international society.

An order underpinned by strong norms might be expected to be much more sticky. That said, the reasons for the development of the norm of territorial integrity do not easily translate offshore and the oceans have long been conceived as a wholly distinct realm to the land – perhaps even its antithesis. This raises several questions: is it possible to speak of a norm similar to that of territorial integrity in relationship to offshore jurisdictions? How could such a norm develop considering the differences between land and sea?

What implications does the existence of such a norm have for patterns of state contestation over marine space? Might we be optimistic about the future stability of the maritime order, or will the oceans become the site of future wars of conquest as global oil supplies and other marine resources come under strain? This study considers these issues, but first I turn to the ways in which ocean space itself is politicized and what existing studies do and do not tell us about these dynamics.

2 The Oceans: A Political Realm

In 1981, a US Naval force led by two aircraft carriers arrived in the Mediterranean off the coast of North

Africa. It was there to assert its right to navigate freely in the waters close to Libya after Tripoli had, in the opinion of Washington, illegally expanded Libya's territorial sea to a width of twelve nautical miles. Libya deployed fighter planes in response to what it deemed to be an American provocation and these were ultimately shot down after challenging the defences of the American carrier groups. Neither Libya's leader –

Muammar Gaddafi – nor US President Ronald Reagan were willing to let the issue rest there, however. In

1986, Gaddafi declared almost the entire Gulf of Sidra as an historic bay over which Libya would exercise exclusive sovereignty. This declaration led to a second deployment of a US Navy battle group off Libya's coast. Gaddafi had declared the boundary that enclosed the Gulf as the “Line of Death,” and threatened any foreign military forces that crossed it with destruction.

Again, the United States disagreed with the legality of this declaration and engaged in “freedom of navigation operations” in the region. Though the US fleet was overflown on many occasions, there were no hostile actions until 23 March 1986 when US aircraft crossed the “Line of Death”. They were followed the next day by the Guided Missile Cruiser, USS Ticonderoga, which was accompanied by two destroyers.

Land-based missile forces fired at American planes and Libyan fighter jets were scrambled with orders to shoot down American aircraft operating over the Gulf of Sidra. A dog fight ensued and more Libyan surface- to-air missiles were fired at US planes without success. Meanwhile, Libya deployed a number of patrol vessels leading to further clashes, in which two patrol boats and two corvettes were sunk or damaged. Libyan surface-to-air missile sites were also fired on by American planes and a total of thirty-five Libyan military personnel were killed in the incident. On 5 April, a Berlin Discotheque was bombed by Libyan-sponsored terrorists: three people were killed and 229 injured – among them a number of US servicemen. American planes bombed Benghazi ten days later in reprisal.

Though United States-Libya relations were strained by more than Tripoli's maritime policies, the conflict demonstrates how seriously the world's most powerful states take freedom of navigation in the world's oceans. Both coastal waters and the high seas have for centuries been essential as a transportation

3 surface and have facilitated the current unprecedented era of globalization.3 Repeated threats by Iran to the

Strait of Hormuz and the international reaction to the growth of piracy in the Indian Ocean remind us how much international commercial interaction relies on the oceans.4 Thus, a relatively liberal navigational regime is understood by powerful states to be essential for the facilitation of international trade, but also so they can use marine space to project force to distant shores without encumbrance. 5 The United States has, consequently, been a consistent supporter of high seas navigational freedoms, engaging in several missions to militarily challenge excessive jurisdictional claims at sea.6 Indeed, the oceans have long been a space in which states vie for naval supremacy in both times of peace and at times of war. These issues have been the concern of maritime strategists, leading to classic works such as those of Mahan 7 and, more recently, scholars such as James Kraska.8 For them, however, the ocean is little more than a surface for the extension of politics by other means. It is a space to dominate, not one to own.

But, the oceans are much more than simply a battlefield or transport surface. The Gulf of Sidra incident also highlights that they are spaces over which states may feel sensitive and a sense of ownership.

Importantly, the sea also contains vast stocks of natural resources, from fisheries to precious metals and oil and gas. Indeed, much of the ocean is the last unexplored frontier on earth. New scientific discoveries are uncovering hitherto unknown species of marine life that may have potential industrial and medical applications. Consequently, the oceans are not an empty, formless void as the popular imagination often conceives them and nor are they just a space over which to project power; they also contain valuable

3 See Olaf E. Janzen, 'World-Embracing Sea: the Oceans as Highways', in Daniel Finamore (ed.) Maritime History as World History, (Gainesville: University Press of Florida, 2004). 4 See United States Department of Transportation, 'Economic Impact of Piracy in the Gulf of Aden on Global Trade', 2008, available at: {http://www.marad.dot.gov/documents/HOA_Economic%20Impact%20of%20Piracy.pdf} accessed 26 June 2013. 5 For example, an American naval strategy document produced in 2007 said “the maritime domain ... carries the lifeblood of a global system that links every country on earth”. It stated the U.S. “will not permit conditions under which our maritime forces will be impeded from freedom of manoeuvre and freedom of access ... nor permit an adversary to disrupt the global supply chain by attempting to block vital sea-lines of communication and commerce”. United States Navy, 'A cooperative strategy for 21st century seapower', October 2007, available at: {http://www.navy.mil/maritime/Maritimestrategy.pdf} accessed 26 June 2013. 6 J. Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims, (The Hague: Martinus Nijhoff Publishers, 1996). 7 Alfred T Mahan, The Influence of Seapower Upon History: 1660-1783, (Boston: Little, Brown and Company, 1894). 8 James Kraska, Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics, (Oxford: Oxford University Press, 2011).

4 commodities and are teeming with life. These resources were once thought to be inexhaustible, supporting a liberal regime of resource extraction. But the discovery of hydrocarbons and problems of environmental degradation and over-exploitation of fisheries catalysed a period of maritime enclosure in the twentieth century. Coastal states sought to gain control of larger marine spaces, undermining the traditional freedoms of the seas.9 This politicisation of the ocean has scarcely abated since; in some cases it can lead to serious disputes and even conflict over marine spaces, sometimes independently of any conflicts on land.

Disputes over maritime space result from two broad situations, with differing relationships to terrestrial space. First, are disputes predominantly concerned with the latter. The conflict between Libya and the United States was one such example. The United States took exception to Libya's claim to maritime space because it interfered with its ability to project force in order to monitor and influence political developments on land. Other maritime disputes are serious, but essentially secondary or intimately associated with disputes relating to territory. For example, sometimes a predominantly territorial dispute is complicated by contestation over maritime rights associated with the land that is in dispute. This situation is illustrated by the Falkland Islands dispute, which has been worsened by the perception that the maritime zones associated with the islands could be rich in oil and gas.10 Disputed territory can also generate maritime disputes as offshore jurisdictions begin at the terminus of land boundaries at the coast. If that point is unclear, the territorial dispute will inevitably extend offshore. Guyana and Suriname found themselves in this kind of a situation in the 1990s. When Guyana gave permission to a company to explore for resources in disputed waters, it drew threats of force from Suriname. Cases such as these, though, remain predominantly territorial in character, with the maritime dispute emerging as a function of the dispute on land.

Other disputes that involve land cannot be considered primarily to be territorial disputes, however.

While such disputes are nominally over territory, in these cases otherwise unimportant land is given

9 See Barry Buzan, 'The Coastal State Movement' in Finn Laursen (ed.) Toward a New International Marine Order: Proceedings of the NIO Youth Seminar held in Amsterdam, (The Hague/Boston/London: Martinus Nijhoff Publishers, 1982). 10 Argentinian President Christina Fernandez de Kirschner, when speaking about disputed Falklands waters, described British actions as “preying on our natural resources, our oil, our fish.” CNN Wire Staff, 'Tensions Flare Over Falkland Islands', CNN, 31 January 2012, available at: {http://edition.cnn.com/2012/01/25/world/americas/argentina-uk-falklands/index.html?hpt=hp_t3} accessed 26 June 2013.

5 significance by the maritime space associated with it. For example, the ownership of a series of very small, uninhabited islands in the South China Sea has been disputed largely because of the maritime zones that might belong to them. China and Vietnam have fought minor conflicts over some of the islands in that region and there have been tense stand-offs with other claimants as well. Some disputes are more purely maritime character and do not spring from disputes over land, such as the Cod Wars which occurred between Iceland and the UK from the 1950s to the 1970s. This dispute emerged from a series of expansions of the maritime limits claimed by Reykjavik, which the United Kingdom considered encroached on the high seas. A different situation emerged between Greece and Turkey when it was thought the Aegean Sea might be rich in oil in the

1970s and 1980s. Turkey conducted exploration activities in waters also claimed by Greece. This catalyzed a series of military threats from both sides, with Turkey's Parliament ultimately describing any future extension of Greece's maritime control as a casus belli. Unlike the Cod Wars, the Aegean Sea dispute is primarily one about where the boundaries of one state's maritime jurisdiction meet those of another, but it is equally a dispute that is largely maritime in character.

However they emerge, not every overlapping maritime claim is certain, or even likely, to cause conflict. Nevertheless, maritime space has been an important site, and subject, of political activity that has sometimes outweighed any contestation over land. In short, the sea is more than a battlefield or transport surface that is subordinate to the politics of the land. It plays a role in international politics that is at times interdependent with, but also sometimes independent of the land. It is the dynamics of this latter set of cases that are the focus of the present study, as they have comparatively been neglected by scholars of international relations. The following section outlines how studies of territorial conflict have tended to focus on the land: it has usually not been considered whether and how their findings relate to the oceans. Some of the major theoretical works in the discipline have considered the oceans. However, by and large, their analyses do not provide clear tools for understanding the patterns of and politics relating to states' claims to jurisdiction over maritime resources. Given that the ocean is a highly politicised space in its own right because of the riches it contains, our neglect of these questions would appear to be a shortcoming.

6 International Relations Theory and the Oceans

Some of the major debates in the discipline of international relations are at best ambiguous about the oceans, and, frequently, ignore them altogether. Territorial conflict has been the subject of a relatively voluminous literature. A number of scholars have reported a high level of presence of territorial issues in international conflict: Vasquez and Henehan have concluded that 80-90 per cent of wars were at least partly over territory, while Holsti puts the figure at 45-85 per cent depending on the era in which the conflict occurred.11 Kocs finds that war is forty times more likely between contiguous states if there is a stated territorial issue at stake between them.12 It has also been found that territorial disputes are three times more likely to escalate to high levels of conflict than other issue-types; that states are less likely to back down when force is used against them under such circumstances; and, finally, the likelihood of severe fatalities is raised in a territorial war. 13

In short, it has been concluded that territorial conflicts are amongst the most destructive, intractable and violent in history. This should be unsurprising, given that states and nations are perhaps defined predominantly by their territory. Territory is, therefore, important for tangible reasons such as the resources it contains, but also intangible reasons such as its association with a nation's conception of its history. For these reasons, territory has been constructed as something over which to fight – sometimes to the death.

Most studies of territorial disputes either implicitly or explicitly ignore marine disputes.14 One notable exception by Paul Hensel and his colleagues did analyse the dynamics of these disputes in comparison to those on land, but considered behaviour at sea to be driven by material variables only. 15 The study, in common with others, assumed that marine space is different to the land – and that maritime issues

11 See John Vasquez and Marie T. Henehan, 'Territorial Disputes and the Probability of War, 1816-1992', Journal of Peace Research, 38:2 (2001), pp 123-138; Kalevi Holsti, Peace and War: Armed Conflicts and International Order, 1648-1989 (Cambridge: Cambridge University Press, 1991). 12 Stephen Kocs 'Territorial Disputes and Interstate War, 1945-1987', Journal of Politics, 57:1 (1995), pp 159-175. See also Paul R Hensel, 'Charting a Course to Conflict: Territorial Issues and Interstate Conflict 1816-1992', in Paul F. Diehl (ed.) A Road Map to War: Territorial Dimensions of International Conflict, (Nashville: Vanderbilt University Press, 1999), pp 115-146; Paul D. Senese, 'Geographical Proximity and Issue Salience: Their Effects on the Escalation of Militarized Interstate Conflict', Conflict Management and Peace Science, 15 (1996) pp 133-161. 13 Senese finds that territorial conflicts are more likely to lead to higher levels of deaths than other types of conflicts. See Senese 'Geographical Proximity'. 14 Paul Huth, Standing Your Ground: Territorial Disputes and International Conflict, (Ann Arbor: University of Michigan Press, 1996). 15 Paul Hensel, Sara McLaughlin Mitchell, Thomas Sowers and Clayton Thyne, 'Bones of Contention: Comparing Territorial, Maritime, and River issues,' Journal of Conflict Resolution, 52:1 (2008), pp. 117-143.

7 are less salient than territorial ones. In contrast, other studies – for example, Michael Klare's book concerned with the dynamics of resource wars – do not differentiate between land and sea at all, implicitly rendering the two realms similar.16 Issue-specific studies, therefore, have not dealt with the oceans at length and those that do have occasionally contradicted one another. Put simply, they do not provide a definitive account of what kind of space the ocean is and how this affects the way states behave towards it. Most important, these studies do not clarify how maritime space is understood to relate to the state, its people and its territory.

Similarly, realist theories of international relations reflect the importance of territory in international relations. The highest priority of statecraft is the survival of the state. Given that states are understood primarily as territorial entities, the protection of a state's territory is, therefore, key. However, realists too are unclear about the role maritime space plays in states' definitions of themselves and their security. One of the central figures of classical realism, Hans Morgenthau, includes geography and natural resources as two of the key ingredients of a state's power, but the oceans are either ignored or under-developed in Morgenthau's conception of these ingredients. For example, he considers it a factor that determines the American position in the world that “the continental territory of the United States is separated from other continents by bodies of water three thousand miles wide to the east and more than six thousand miles wide to the west.” 17 On this understanding, the oceans are depoliticised and marine space is rendered little more than a buffer that protects the land. The oceans are not conceived by Morgenthau as an object of contestation independent of the land-based political system. Indeed, he later concentrates solely on terrestrial territory as a potential object of conquest and source of power, ignoring the oceans altogether.18

His land-bias is also evident in Morgenthau's discussion of the importance of a nation being able to grow its food. Again, in this discussion, the sea is depoliticised as it serves a barrier to the importation of food only, as it was for Britain in World War II. Morgenthau conspicuously ignores the possibility of catching at least a portion of a nation's food in the seas.19 Finally, although Morgenthau devotes considerable

16 Michael T. Klare, Resource Wars: The New Landscape of Global Conflict, (New York: Henry Holt and Company, 2002). 17 Hans Morgenthau, Politics Among Nations: the Struggle for Power and Peace, (New York: A.A. Knopf, 1948), p 124. 18 Morgentha, Politics Among Nations, pp 127-133. 19 Ironically, fish was the only food not rationed in wartime Britain.

8 attention to the importance of possessing oil, he does not once mention offshore oil, concentrating solely on land-based deposits. Though he was writing before the period of comprehensive, multilateral enclosure of marine resources, the United States had only recently extended its jurisdiction over the continental shelf.

Consequently, Morgenthau's neglect of marine space is perhaps surprising.

Morgenthau's work is not alone in its under-developed idea of the oceans. According to a number of studies, states are prone to expand their territories as they grow more powerful. However, their implicit focus is on the land making it unclear how the ocean fits into these predictions. 20 Neorealism, too, largely assumes a definition of the state that leaves unspecified the role of maritime space in international relations. 21 Though the central actor in all realist theories is the state, the question of whether it is simply understood as a land- based entity is left unanswered. Given the emphasis on national protection and survival in neorealism, the failure to define explicitly what is to be protected is a shortcoming. Put simply, it is unclear how maritime space should fit into states' conceptions of their security interests. It has been suggested that realist theories of international relations merely reflect and reinforce a geopolitical discourse that depoliticizes the oceans and renders them a surface for battle, rather than an object of security.22 In short, the realist discourse of international relations as presently stated has little to say about marine space – and contestation over it – on its own terms. Adopting the same assumptions as realism, neoliberal theories23 suffer the same shortcomings in relationship to our understanding of the oceans. They do not answer the fundamental question of precisely what the significance of marine space is for global political dynamics and how it fits into a well-developed conception of the role of land in this system.

Constructivist approaches to the study of international relations, on their face, would appear to provide fruitful tools for analysing some of the questions neglected by other approaches. Constructivists understand international politics as being conducted within shared social structures – inter-subjective norms

20 See for example Martin Wight, Power Politics, (London: Royal Institute of International Affairs, 1946); Randall Schweller, 'Managing the Rise of Great Powers: History and Theory', in Alastair I. Johnston and Ross Roberts (eds.) Engaging China: the Management of an Emerging Power, (London: Routledge, 1999) pp 1-31. 21 See Kenneth N. Waltz, Theory of International Politics, (New York: Random House, 1979). 22 Philip E. Steinberg, The Social Construction of the Ocean, (Cambridge: Cambridge University Press, 2001). 23 For example, Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy, (Princeton: Princeton University Press 1984).

9 that are both constitutive and regulative in nature.24 Material structures are accorded meaning and significance by ideas and social understandings. Individual norms might be widely agreed amongst actors in international society. They can prescribe appropriate standards of behaviour that make some choices unthinkable, or at least costly, either in psychological or reputational terms. Analysing these regulative and constitutive norms can help us to understand why international relations are conducted as they are. More specifically, then, constructivist approaches could help us to understand how the ocean fits within the normative structures that constitute and regulate international society.

However, constructivist approaches, too, have often tended to focus on land at the expense of the oceans, especially in the realm of security.25 For example, the work on the relationship between identity, territory and territorial conflict has not been replicated in detail in relationship to the sea. 26 As noted above, when examined, the oceans tend to have been viewed as a rational realm in which only material interests determine outcomes. There are notable exceptions to this trend, however. Ken Booth's study of twentieth century developments in ocean governance assessed the likely future of maritime security strategy in the light of changing state understandings relating to marine space in the post-UNCLOS era. 27 In particular, he noted that states were likely to become more sensitive about their maritime zones, with potential knock-on effects relating to free navigation for warships. He concluded that powerful, maritime states, which have traditionally had the option to project unencumbered force across the seas, will have to contend with increasing national efforts to control the oceans. The ocean is, therefore, conceived in Booth's study as a potential barrier to the achievement of the dominant aim of influencing land-based politics. Consequently, while he considers the construction of marine space, the politics of the land are his ultimate concern. Booth's study is, therefore, a reflection of the dominant, realist geopolitical discourse that considers the ocean

24 See Peter J. Katzenstein (ed.), The Culture of National Security: Norms and Identity in World Politics, (New York: Columbia University Press, 1996). 25 For an example of work relating to the non-security aspects of maritime spaces, see Peter M. Haas, 'Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control', International Organization, 43:3 (1989), pp 377-403. 26 For an example of this work relating to land, see David Newman, 'Real Spaces, Symbolic Spaces: Interrelated Notions of Territory in the Arab-Israeli Conflict', in Paul F. Diehl (ed), A Road Map to War: Territorial Dimensions of International Conflict, (Nashville: Vanderbilt University Press, 1999). 27 Ken Booth, Law, Force and Diplomacy at Sea, (London: Allen and Unwin, 1985).

10 strategically unimportant except in relationship to political struggles on land. As a consequence, he has little to say about contestation solely over maritime space and its resources.

Philip Steinberg's study of the social construction of the ocean is perhaps the most significant constructivist effort that considers how the oceans have themselves been conceived and why.28 Steinberg's book is concerned with general conceptions of marine space as a whole throughout several centuries of world history. In particular, he is concerned to challenge the binary distinction that has often been advanced between ocean enclosure and free seas. His account concludes that the dominant constructions of marine space are a response to the imperatives of economic systems. Steinberg details the dominant geopolitical construction of the ocean in realist theories of international relations and describes the interest in maintaining marine space as a friction free surface for the transportation of goods. He does not deal with the contemporary marine property rights order or maritime boundaries in substantial detail, however. He places little emphasis on the dynamics of maritime disputes and the contemporary politicisation of maritime spaces.

However, his study does provide an essential starting point for thinking about the oceans, particularly because of the silence of other important constructivist studies concerned with territorial conflict on the politics of maritime space.

Ideational variables have been shown to be key determinants of the changing character of territorial conflict. It has been noted that, while territorial conflict might not be dead, its character has altered significantly in the last few decades. Though changes in the territorial order were commonplace during the centuries prior to the last one, they have declined markedly in the post-World War II period. Mark Zacher concludes that the incidence of territorial redistributions in the last half of the twentieth century was half that of the nineteenth.29 The last major case of successful territorial revisionism was in 1975, when Morocco annexed Western Sahara. Consequently, while territorial conflict might not be completely dead, conquest seems to be. Zacher attributes this change to the crystallisation of a strong territorial integrity norm which has made forceful territorial aggrandisement illegitimate.30 Even in this era of the war on terror, suggests

28 Steinberg, Social Construction. 29 Mark Zacher, 'The Territorial Integrity Norm: International Boundaries and the Use of Force', International Organization, 55:2 (2001), pp. 215-250, pp. 237-238. 30 See also Wayne Sandholtz and Kendall Stiles, International Norms and Cycles of Change, (Oxford: Oxford

11 Stuart Elden, “territorial integrity is increasingly taking on a special status and significance.” 31 It appears that territorial integrity – understood, at least, as a norm proscribing conquest – continues to occupy a central place in the discursive practices of decision-makers. This has taken place even as they engage in regime- change and humanitarian interventions.

Holsti agrees that the international community's normative understanding of territory has changed fundamentally over the course of the last several centuries. This has had a concomitant effect on patterns of conflict. He says,

roughly from the late seventeenth to the late eighteenth century – patterned practices featured constant territorial revision and conquest, ideas of territory as a commodity and personal-patrimonial possession, and weak norms. Contemporary practices, in contrast, are largely consistent with the permanency of territorial demarcations, conceptions and ideas of territoriality having almost sacral status, and strong norms that discourage or prevent territorial changes effected through coercion or armed conflict.32

Neither Zacher, nor Holsti, considers the constitution of the ocean or that marine space has been enclosed by a set of boundaries demarcating zones of national and international jurisdiction. How these zones may or may not have been affected by the evolution of international normative standards is, therefore, unclear.

Though these studies did not consider marine space, it nevertheless remains the case that a constructivist study of the oceans might provide some of the answers that have been lacking in international relations scholarship to date.

In sum, the security of land spaces has been a central concern of international relations scholars, but the applicability of existing thinking to offshore resource zones is far from clear. Though authors such as

Booth, Kraska and Bull33 have considered how the oceans are involved in the global security system, they do so, in essence, by ignoring them as a salient space of security in their own right. In these studies, the oceans

University Press, 2008), Chapter 3. In his study of the reasons for compliance with the institution of sovereignty, Ian Hurd also concentrates exclusively on the state as a land-based entity. See Ian Hurd, 'Legitimacy and Authority in International Politics', International Organization, 53:2 (1999) pp 379-408. 31 Stuart Elden, 'Territorial Integrity and the War on Terror', Environment and Planning, 37:12 (2005), pp 2083-2104, 2090. 32 Kalevi Holsti, Taming the Sovereigns: Institutional Change in International Politics, (Cambridge: Cambridge University Press, 2004), p. 87. 33 Hedley Bull, 'Sea Power and Political Influence', The Adelphi Papers, 16:122 (1976), pp. 1-9; Booth, Law, Force and Diplomacy; and Kraska Maritime Power.

12 are conceived only as a space on which contests relating primarily to the politics of the land are played out.

Given that the oceans are increasingly seen as objects of contestation themselves, this perspective is restrictive. The small number of examinations of maritime space in the literature on territorial conflicts is similarly limiting. The major international relations theories either provide under-developed explanations for the behaviour of states towards maritime space, as is the case with realism, or they provide tools that have as yet not been implemented in an existing study. Indeed, constructivist theoretical approaches would seem to provide a fruitful angle for examining the politics surrounding the security of states' maritime spaces, but they have mostly not been put towards this end. To be sure, though there have been many studies solely of the maritime legal order, these have predominantly employed materialist approaches in their analyses of the ocean regime.

Existing Maritime Political and Legal Studies

Not since the 1970s and 1980s when the contemporary ocean regime was in the process of being constructed has there been a sustained period of wide interest in the governance of the seas. Unsurprisingly, much of the work from this period was relatively descriptive in character and focused on accounting for the dynamics and outcomes of the negotiations leading to the law of the sea convention. For example, Clyde Sanger's first hand account of the third law of the sea conference emphasized the role of individuals, the use of negotiating texts and issues of timing in the law-making process.34 James Sebenius' study similarly concluded that the way issues were packaged and organised influenced the outcome of the conference in concrete ways.35 Therefore, these studies provide an account of some of the factors that shaped the contemporary maritime regime.

However, they and others also make assessments of its future strength and stability which takes us some of the way towards answering the questions engaged in this study. However, in all, this group of works are predominantly rationalist in character: state interests are not, by and large, problematised and the deeper normative context in which the negotiations played out is not examined. As a consequence, these scholars might have come to premature conclusions about the strength and stickiness of the order they examined. A 34 Clyde Sanger, Ordering the Oceans: The Making of the Law of the Sea, (London: Zed, 1986). 35 James K. Sebenius, Negotiating the Law of the Sea, (Cambridge, Mass.: Harvard University Press, 1984).

13 constructivist approach, on the other hand, might suggest a different set of expectations about the peace and stability of the contemporary maritime property rights regime to the materialist studies of it.

Two leading works on the modern ocean regime have in common a focus on the rational dynamics of bargaining and the material factors that drove the outcomes of contentious issues.36 Barry Buzan produced a case study detailing the development of the legal regime of the seabed during the third quarter of the twentieth century.37 He accounted for the various outcomes during the process by examining the formation of political alliances and groups, their cohesion and the sources of the leverage they could exercise over the negotiations. Freidheim, too, was interested in the development of positions in the negotiations, their convergence or the lack thereof, and what accounted for these results.

The main conclusion that can be drawn from these studies is that the powerful states drove the process in their own favour. Freidheim sums up the outcome: “The biggest substantive winners in the [Third

United Nations Conference on the Law of the Sea] were the major developed ocean-using states. West and

East. Measured in terms of the amount of near-shore ocean real estate they put under their national jurisdictions and the Grotian movement rights they were able to retain, they did very well indeed.” 38 Buzan concludes similarly that the developed states did well out of the conference and that their power ensured a favourable outcome, particularly with regard to continental shelf rights.39 However, most authors agree that, although powerful states achieved a great deal, the modern law of the sea has been so successful because other states' interests were at least partly satisfied within the overall compromise.

Eric Posner and Alan Sykes made a relatively optimistic assessment of the Convention order based on an economic examination of UNCLOS.40 They judge it a practical solution to the costs of potential overlapping maritime claims and over-exploitation of common pool resources. They also explain the shape

36 Other studies share this focus, including Lovald's study, which uses the variable of national capabilities to account for outcomes in the early stages of the negotiations leading to UNCLOS. Johan Ludvik Lovald, 'In Search of an Ocean Regime: The Negotiations in the General Assembly's Seabed Committee 1968-1970', International Organization, 29:3 (1975) pp 681-709. 37 Barry Buzan, Seabed Politics, (New York: Praeger, 1976). 38 Robert Friedheim, Negotiating the New Ocean Regime, (Columbia S.C.: University of South Carolina Press, 1993), p 308. 39 Buzan, Seabed Politics, p 292. 40 Eric Posner and Alan Sykes, 'Economic Foundations of the Law of the Sea', The American Journal of International Law, 104:4 (2010), pp. 569-596.

14 that the regime at sea took in economic terms. For example, they suggest that coastal states had the best incentives for regulating the areas close to their shores while no state had a good enough incentive in the face of substantial costs and few benefits to regulate the deep ocean. Indeed, the authors argue that many of the provisions of the treaty have an economic rationale – from innocent navigation to the equidistance rule in maritime boundary delimitation. Put simply, then, the maritime order satisfies the interests of international society measured in economic terms.

Harrison credits the consensus procedure under which the conference operated with the success of the modern law of the sea. He explains, “the consensus decision-making procedure was concerned with achieving an outcome that would balance the interests of all the states involved.”41 He summarises the result of this procedure as follows:

the success of the Conference was not only in concluding a treaty, but also in its influence over the modern customary international law of the sea. These achievements can largely be ascribed to the innovative decision- making techniques that were developed by the Conference in order to promote consensus. It was the process of negotiating the Law of the Sea Convention that allowed new rules of customary international law to crystallize. Today, the Convention can be said to provide the bedrock for the modern law of the sea.42

Friedheim agrees: he concludes that accommodating the interests of all the world's states in a universal conference enabled individual issues to be traded off in order to craft an overall balance. This was key to the success of the negotiations and the likely enduring character of the compromise that was achieved.

Overall, he concluded that the developed countries profited most from the process, but that the convention that was ultimately adopted was the second best outcome for the overwhelming majority of groups present at the conference.43 Sebenius, too, considered that the Conference succeeded in generating a positive sum outcome44 and Zacher considers that the decision-making process enabled developing countries to gain approval of some of their main demands.45 These studies, consequently, understand the law-making 41 James Harrison, Making the Law of the Sea: A Study in the Development of International Law, (Cambridge: Cambridge University Press, 2011), p 43. 42 Harrison, Making the Law of the Sea, p 60. 43 cf. John J. Logue, John, 'Moment of Choice: Will the Third World Fight for the Common Heritage Fund Proposal?' in Finn Laursen (ed), Toward a New International Marine Order: Proceedings of the NIO Youth Seminar held in Amsterdam, (The Hague/Boston/London: Martinus Nijhoff Publishers, 1982), p 24. 44 Sebenius, Negotiating the Law of the Sea, p 116. 45 Mark Zacher, 'Multilateral Oragnizations and the Institution of Multilateralism: The Development of Regimes for Nonterrestrial Spaces', in Ruggie John Gerard (ed.), Multilateralism Matters: The Theory and Praxis of an

15 process as one driven by powerful states, but that it succeeded in crafting a compromise nevertheless. This balancing of interests has been responsible for the success of the resulting Convention.

Thus, the consensus seems to be that the last law of the sea conference was a major achievement of international diplomacy. This has been understood to have implications for the stability and longevity of the contemporary maritime regime. Buzan asserts that states had a surprising underlying commitment to international law in the negotiations leading to it.46 Friedheim's assessment ten years after the conclusion of the Third UN Conference on the Law of the Sea was positive:

The reality is, the new ocean regime has proven satisfactory in ten years of use. The Convention has not come into force, but most states are already abiding by most of its major provisions. Their expectations have converged in that they are usually granting to others the same types of rights they themselves have claimed. 47

Though he confines his assessment of the achievements of the conference to twenty years, Friedheim concludes that the convention would be likely to provide a stable and ordered maritime regime for that period.

In short, these studies of the modern ocean regime suggest that we have good reason to be optimistic about its stability. However, the materialist emphasis of these studies might imply that the order will be stable only so long as the particular constellation of interests and the distribution of power that led to it remain relatively static. To be sure, their understanding of the law of the sea as a series of trade-offs and compromised interests leads some authors to predict probable future revision of the treaty. In common with

Buzan and Friedheim, Zacher and McConnell48 consider that the primary drivers of innovation in the law of the sea were science, technology and the presence of marine resources. Thus, although they saw little potential for the rolling back of the regime of enclosure of ocean resources, they did foresee a potential for

Institutional Form, (New York: Columbia University Press 1993), pp 399-440, p 414; Sebenius, too, considers that the outcome of the Conference, were it not for several issues being packaged together, would have been different – with the ISA acting as much more of a claims registry than a vehicle for authoritative decision-making and mining itself. He also considers navigation issues would have been decided much less in the favour of developed countries. Sebenius Negotiating the Law of the Sea, p 105-106. 46 Buzan, Seabed Politics, p 299. 47 Friedheim, Negotiating the New Ocean Regime, p 308. 48 Mark W. Zacher and James G. McConnell, 'Down to the Sea With Stakes: The Evolving Law of the Sea and the Future of the Deep Seabed Regime', Ocean Development and International Law, 21:1 (1990) pp 71-103.

16 coastal state jurisdictional claims to march ever further seaward, eventually undermining the modus vivendi achieved in 1982. Posner and Sykes come to a similar conclusion for similar reasons, and so does Hollick.49

The “territorial temptation” – the impulse to expand national control over the oceans – has been a theme in a number of studies of ocean law and politics. Oxman has outlined the various types of jurisdictional aggrandisement that have occurred since the 1982 Convention was signed. 50 For example, some states purport to control navigation at sea more strictly than seems to be compatible with the

Convention. Other states have attempted to control military activities in the waters with their exclusive economic zones. Roach and Smith point to abuses relating to the provisions on straight baselines in the

Convention as well as a host of other infringements.51 Kraska, too, is critical of states' attempts to undermine the regime embodied in the Law of the Sea Convention.52 These portrayals paint a picture of a regime in a certain amount of crisis, a lack of shared norms and a potential for the legal order of the oceans to be undermined at any time. Though the question is not directly addressed, this might suggest that there is a possibility for states' activities in the oceans to resemble the past disorder associated with territorial conflict and conquest on land. Some commentators indeed liken the contemporary maritime regime to that which existed historically.

Like the more specific studies of the negotiating dynamics evident in the creation of the modern law of the sea, these works concentrate predominantly on material variables, rather than ideas. For example, the international lawyer D.P. O'Connell suggests that the character of the ocean governance regime is dependent primarily on the distribution of material power in international society. He writes:

When one or two great commercial powers have been dominant or have achieved parity of power, the emphasis in practice has lain upon the liberty of navigation and the immunity of shipping from local control; in such ages the seas have been viewed more as strategic than as economic areas of competition. When, on the other hand, great powers have been in decline or have been unable to impose their wills upon smaller States, or when an equilibrium of powers has been attained between a multiplicity of States, the emphasis has lain upon the protection and reservation of maritime resources, and consequently upon the assertion of local authority over the

49 Ann Hollick, US Foreign Policy and the Law of the Sea, (Princeton N.J.: Princeton University Press, 1981), p 383. 50 Bernard Oxman, 'The Territorial Temptation: A Siren Song at Sea', The American Journal of International Law, 100:4 (2006), pp. 830-851. 51 Roach and Smith, United States Responses. 52 Kraska, Maritime Power.

17 sea.53

In conclusion, he compares the twentieth century situation to that of the seventeenth when, he says, an intellectual revolution was combined with the reconfiguration of political power.

In his study, Brown comes to an almost identical conclusion to that of O'Connell about the role of powerful states in crafting the ocean regime, though with different results, and he similarly compares past history with the contemporary era:

For centuries past, many of the principal features of the international law of the sea have been formed by the interplay between two opposing fundamental principles of international law: the principle of sovereignty and the principle of the freedom of the high seas. The ascendancy of one over the other during any particular historical period has tended to reflect the interests of the predominant powers of the day. Thus, the monopolist ambitions of the Iberian powers in the fifteenth and sixteenth centuries were mirrored in their attempts to establish a mare clausum over large parts of the seas, just as the United Provinces of the seventeenth century and Elizabeth's England recognised that their best interests lay in promoting the opposite doctrine of mare liberum. That these dynamic forces are by no means exhausted is witnessed by the still continuing changes brought about in maritime boundaries in recent years.54

For these authors, history is cyclical, with patterns repeating themselves, depending primarily on the distribution of material power in international society. These perspectives would seem to fit most closely within a realist understanding of international relations, with their emphasis on the power dynamics. On this understanding, there might be little to restrain states from treating the oceans as sites of territorial conflict and conquest.

In sum, studies that have focused explicitly on the maritime order have made major theoretical claims, focusing on the role of power and interests in accounting for outcomes. Changing configurations of international power have been thought to drive alterations in the degree of national claims of control made at sea. More specific studies of the contemporary ocean regime have sought to account for the outcomes of the bargaining process that led to the crafting of the modern law of the sea. These analyses, too, understand the regime as the product of balanced power and interests that were traded off. Though this process was deemed a success, these authors point to the overall victory of powerful states and several studies catalogue the

53 Daniel O'Connell, The International Law of the Sea, (Oxford: Clarendon Press, 1982), p 2. 54 Edward Duncan Brown, Sea-Bed Energy and Minerals: the International Legal Regime, Volume 1, (Dordrecht: M. Nijhoff Publishers 1992), p 14.

18 stresses that the regime has suffered since – some predicting more to come. Indeed, a simple understanding of the modern law of the sea regime as a product of balanced interests and the exercise of power might well suggest that the regime would be subject to some non-compliance. States would not necessarily be ontologically disposed towards compliance and shifting interests and power might undermine the whole regime.

However, changing norms have been shown to be important determinants of the behaviour of states towards land. Therefore, it would seem to be precipitate to conclude on the basis of these studies that the oceans are destined to become the site of conflicts and conquest similar to that which took place over territory historically. Though the assessments of existing studies might suggest that the ocean regime is not based on anything more than a compromise, constructivist scholars might understand international order in the oceans as being based in a deeper, international inter-subjective assessment of appropriate behaviour as it is on land. This focus would potentially predict much greater stability so long as inter-subjective understandings of appropriate behaviour persist.

A constructivist approach has further benefits: existing studies have tended to treat the maritime order as a monolithic whole, but the study of individual norms might better be able to explain different patterns of compliance with the various aspects of the ocean regime, such as free navigation rules and baseline determination. Such an approach is also potentially more attuned to historical variation in explanatory variables and outcomes. For a simple focus on the changing balance between sovereignty and freedom of the seas and shifting power distributions obscures much of the subtlety in ocean politics as well as the very real changes in international practice that have taken place over time.

To suggest that sixteenth or seventeenth century maritime politics are similar to those of today may be right in a very basic sense, but international practices relating to the sea are more complex than simply the decision whether to assert national control over them or not. Most important for the purposes of this study, states also have to decide whether to respect the jurisdictions claimed by others. Finally, focusing on the dynamics of conflicting interests and their reconciliation often obscures the very real areas of consensus that exist in global politics. Although bargaining power may have driven immediate outcomes in the negotiating

19 process, bargaining dynamics are structured by deeper understandings of appropriate behaviour that are external to that process. Constructivist approaches take seriously the need to consider from where the interests of powerful states come. In other words, simply viewing the ocean regime as the product of interests and power, without examining the deeper understandings that structured and continue to underpin it, only tells a part of the story of why states behave as they do towards maritime space. This study is aimed at filling this gap in our understanding of contemporary maritime politics.

Summary and Outline of the Thesis

The existing literature on international security has neglected important questions relating to marine politics.

Moreover, the materialist emphasis of existing ocean-specific studies might lead us to think that maritime space has the potential to become an unrestrained arena for competition over resources if the interests and power structures underpinning the maritime order should shift. The growing politicisation of the oceans and pressures on marine resources have, indeed, led some commentators to conclude these resources and the spaces in which they are located will more seriously become objects of contestation. 55 However, contests over land have altered recently due to the crystallisation of a strong territorial integrity norm. This study asks whether this development has influenced the practices of states at sea.

As Stuart Elden notes, the term “territorial integrity” can be understood in an expansive sense as having

two interlinked and usually self-reinforcing meanings. On the one hand, it protects existing boundaries, with the aim of preventing nation-states from territorial acquisition or from promoting secessionism or border changes in other states. On the other hand, respecting equal sovereignty, it protects states from interference in their internal affairs: the idea of nonintervention, domestic sovereignty. We could call these two concepts territorial preservation and territorial sovereignty.56

In other words, territorial integrity shields states from any act designed to disrupt their territorial control – not simply conquest. Even an unauthorised breach of a state's airspace would be a violation of this wider

55 Klare, Resource Wars. 56 Stuart Elden, Terror and Territory: The Spatial Extent of Sovereignty, (Minneapolis: University of Minnesota Press, 2009). p 142.

20 definition of territorial integrity. Article 2(4) of the UN Charter contains perhaps the most prominent statement regarding the territorial integrity of states. It combines this standard with a protection for their

“political independence.” The latter term, when coupled in this way with territorial integrity most certainly preserves the entire bundle of states' rights, including their maritime rights, both within and outside of their territory.57

However, as Zacher says, with the development of the norm proscribing conquest, “the society of states has largely eliminated what scholars have identified as the major source of enduring rivalries and the frequency and intensity of warfare.”58 This standard is widely agreed and simple, unlike the much more contested principle that states' “political independence” or even their wider territorial inviolability should be respected. The seeming robustness of the norm proscribing conquest makes it of particular interest and it would, therefore, seem to be a particularly important starting point to assess whether this norm has influenced the practices of states at sea. Though the development of a norm proscribing conquest might be a source of optimism about the future of the oceans, maritime space is constructed differently to land in social, legal and political terms. These differences create terminological, practical and theoretical difficulties in simply extrapolating the norm proscribing conquest from the land to the sea. Consequently, it is hard to know whether the dire history of territorial conflict or the more optimistic present of stable international order is the likely future for marine space.

That said, as will be discussed more fully in the next chapter, though applying the narrow definition of territorial integrity as a norm proscribing conquest is problematic, it is not insurmountably so. On the other hand, the application of the wide definition of “territorial integrity” to maritime space is difficult due to the different legal regimes on land and at sea. For example, freedom of navigation means that the ships of other states can quite legitimately enter foreign maritime zones. Like Zacher's work, then, this study focuses on the narrower meaning of territorial integrity as a prohibition against conquest both because it is an important norm and one that could be understood to have influenced states' behaviour at sea. In so doing, this

57 See Belatchew Asrat, Prohibition of Force Under the UN Charter: A Study of Art. 2(4), (Uppsala: Iustus, 1991), p 146. 58 Zacher 'The Territorial Integrity Norm'. p 246.

21 study does not adopt the term “maritime territory”, which is popular among many commentators, opting instead mostly to use the term “maritime space”. First, to use the prior term would seem to presume what the following analysis sets out to prove – which is that concepts associated with territory and particularly land influence the practices of states at sea. Moreover, as expanded upon in the next chapter, it is strictly incorrect to refer to states' maritime zones as part of their territory. Much effort was expended to prevent the extension seaward of states' territorial control because it would imply exclusive jurisdiction and the capacity to interfere with navigation. The term “maritime space” is also preferred because it seems to emphasise the oceans as a place with distinct characteristics rather than the image of a formless void that is conjured simply by viewing it as a transport surface, or a marine highway. In other words, it is a salient space itself, not simply something to cross on a journey between two such spaces.

With that in mind, the next chapter considers some alternative explanations for the behaviour of states towards maritime space. Following that, it unpacks the logic relating to how a norm proscribing conquest might operate at sea, notwithstanding the substantial social, political, and legal differences between marine and terrestrial spaces. Chapter Two briefly traces states' practices at sea from the Ancient world, through the Medieval period, to the last high point of national efforts to enclose maritime spaces. Three cases of early modern ocean territorial claims are examined and contrasted with practices relating to the present day marine property rights order. Historic maritime politics closely resembled those of the land and contemporary maritime boundaries would appear to be as stable as those enclosing states' territories today

(as summarised in table 1).

22 Table 1: The Changing Character of Conflict on Land and at Sea

Early Modern Period Late Modern Period Post-1945 Norms regulating Weak or non-existent Weak or non-existent Territorial integrity norm. conflict over land norms. norms. Norms regulating Weak or non-existent Consensus on free seas. Prohibition on illegal conflict over sea norms. expansionism. Means of allocation of Use of force. Use of force. Resistance to territorial land change. Means of allocation at Use of force. Canon-shot rule limits Legal conferences based sea jurisdiction. on consensus. Nature of boundaries Borders unstable and ill- Borders unstable. Comparatively stable and on land defined. increasingly certain borders. Nature of boundaries at Boundaries unstable and No comprehensive ocean Stable boundaries, Sea ill-defined claims. enclosure. although some boundaries disputed. Character of Conflict on Ownership of territory a Ownership of territory a Acts of conquest rare and land major issue in conflict. major issue in conflict. normally opposed in international society. Character of Conflict at Ownership of maritime Battles conducted at sea, No acts of conquest, but sea space a major issue in but not in order to own occasional scuffles over conflict. the sea. disputed boundaries.

Chapter Three examines how the ocean and, more specifically, the security of marine space was conceived as the law of the sea property rights order was established in the second half of the twentieth century. I find that, although the ocean was indeed conceived as a very distinct space to land, standards of appropriate behaviour relating to territory have nevertheless influenced the way appropriate behaviour at sea is conceived. In particular, conquest was understood as a practice to be eschewed by international society and, moreover, there is evidence that this understanding was based on the historical experience with land.

However, stable oceans were only conceived to be possible if the property rights order there was widely regarded as fair.

Consequently, the subsequent two chapters examine the normative significance of the maritime jurisdictions that were created from after World War II and beyond. Chapter Four examines the fundamental consensus that was apparent in the first efforts to institutionalise offshore resource zones. Chapter Five assesses the persistence of these understandings in the Third UN Conference on the Law of the Sea and

23 beyond to the agreement on deep seabed mining that was signed in 1994. In short, the ocean was conceived as common property within which every state had a stake. Discourses of sovereign equality were drawn on to justify an order constructed to give effect to basic geographical notions of spatial fairness. However, the concept of proximity provided a second grounding of the maritime property rights order, demonstrating, once again, that the land and the sea are far from unrelated. Indeed, states consider the areas of ocean adjacent to their coasts as belonging naturally to them. This definition of areas of sea over which states felt a sense of ownership at once politicized maritime space, but also limited the ambitions of states in much the same way as on land.

In the final part of this thesis, I consider the observable implications that are predicted by the theory that maritime space is stabilised by a very similar norm to that of territorial integrity. In particular, in Chapter

Six, I develop the idea that, though conquest should be rendered illegitimate, legally-defined maritime boundary disputes should not be. Indeed, maritime boundary claims that are based in solid legal arguments reinforce, rather than undermine, the inviolability of legally established boundaries. This situation prevails because the maritime property rights order simply has not yet been fully implemented the world over.

In Chapters Seven and Eight, I examine two case studies of contemporary maritime regions to test the hypotheses developed in Chapter Six. Both the Arctic Ocean and South China Sea contain a plethora of maritime disputes, but I find evidence that the claims from which they arise are mostly justified using legal arguments. Perceived illegitimate expansionism, on the other hand, is considered an unusual and problematic practice. When states are thought to seek to claim more space at sea than that to which they are plausibly legally entitled, they come under substantial pressure resulting in attempts to shame them into compliance and to encourage them to resolve the dispute peacefully. As a consequence, it appears the history of contestation and conquest on land has created a normative context that has delegitimised these behaviours both on land and at sea. A short conclusion to this study sums up these trends and discusses their implications.

24 PART I

TERRITORIALITY AND SECURITY IN THE OCEANS

25 CHAPTER 1

MARITIME TERRITORIAL INTEGRITY: THEORY AND METHODOLOGY

Human activities on the oceans or involving the oceans cannot be separated, in their impacts, from human activities on land, in the air, or in outer space; but the ocean forces us to think differently, to think anew.

- Elisabeth Mann Borgese

The norm of territorial integrity has origins that are intimately bound up with the history of territory and territorial conflict. The ocean, on the other hand, has, principally, been considered the antithesis of the land.

Historically, it has not been conceived of as a space to fight over independently of contests relating to terrestrial space. Consequently, in legal sources, the ocean has not featured as a potential object of conquest, and so the robust proscription of forceful territorial acquisition has not been conceived in relationship to maritime space. Socially, the ocean has been viewed as lacking in any serious intrinsic significance and the dominant discourse relating to maritime security all but ignores the salience of marine space on its own terms. So, it is unclear how the particular taboo relating to conquest could operate at sea. Moreover, as

Gerhardt et. al. conclude, the law of the sea convention is “a document that fundamentally reinforces the idealized political-juridical separation of water from land.”59 To be sure, the legal regime at sea is entirely distinct from that under which most land is administered: almost all areas of ocean – even if under national jurisdiction – are not legally a part of the state. With such differences between land and sea, the following chapter examines some potential explanations for the behaviour of states towards maritime space. I find that accounts founded on the role of power and security as well as economic interests and capacity cannot alone explain the contemporary shape of maritime politics. Instead, an account based on the role of ideas and 59 Hannes Gerhardt, Philip E. Steinberg, Jeremy Tasch, Sandra J. Fabiano, and Rob Shields, 'Contested Sovereignty in a Changing Arctic', Annals of the Association of American Geographers, 100:4 (2010) pp 992-1002, p 994.

26 appropriate standards of behaviour is necessary, notwithstanding the difficulties of extrapolating the origins and effects of the norm of territorial integrity to maritime space. Indeed, two spaces need not be identical for the experience with and standards relating to one to influence practices towards the other.

Land and Sea: Legally Different

The ocean has, for the most part, been constructed legally, politically and socially as quite distinct from the land. This creates, at the very least, practical and terminological problems for a norm of territorial integrity to exist at sea. Lea Brilmayer and Natalie Klein have described how the legal order of the ocean evolved very differently to that of the land.60 Though it is no longer a sufficient condition, international law continues to recognise that land entitlement depends on the exercise of “effective occupation” which has been deemed unnecessary at sea.61 However, the legal order in the ocean differs from that on land in more ways than simply the means of allocation. The term “territory” has dry-land connotations in common parlance and also in legal terms.62 The territory of a state, to a lawyer, is inseparable from sovereignty, which is authority to

60 Lea Brilmayer and Natalie Klein, 'Land and Sea: Two Sovereignty Regimes in Search of a Common Denominator', NYU Journal of International Law and Politics, 33:3 (2001), pp. 703-768. 61 See the Clipperton and Island of Palmas Arbitrations. Clipperton Island Case (France v. Mexico) (1932) RIAA XI, 1105; Island of Palmas Case (Netherlands v United States of America) (1928) 2 RIAA 829, available at: {http://untreaty.un.org/cod/riaa/cases/vol_ii/829-871.pdf} accessed 26 June 2013. 62 Kohen and Heble say: “Strictly speaking, ‘territory’ as a term of art comprises not only emerged land, but also airspace, the territorial sea, and internal waters.” Marcelo G Kohen and Mamadou Heble, 'Territory, Acquisition', in Rudiger Wolfrum (ed) The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012). In the Island of Palmas Case, the Permanent Court of Arbitration said “sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular state.” Quoted in Malcolm Shaw, International Law, (Cambridge: Cambridge University Press, 2008), p 489. That said, the continental shelf has occasionally been considered to be “territory” that is simply submerged, or alternatively as submerged land. The judgment in the North Sea Continental Shelf Case, for example, said “What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion, in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea.” Though territory, this does not clarify explicitly whether the continental shelf is actually part of the territory of the state. Certainly it is territory over which states have rights, but that does not automatically equate to it becoming the territory of the state. Rather, the Court's formulation is better understood as a doctrine that explains how states have rights over the continental shelf, rather than the legal regime under which they exercise them. See North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands), 1969 I.C.J. 3., para 43. This would seem to be clarified by the court's statement in the same case that: “the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources.” The sovereignty a state has over its land is differentiated to the sovereign rights it has over the continental shelf and the latter is conceived as subject to a distinct regime. A state's sovereignty merely generates the rights to the continental shelf, it does not constitute those rights. See North

27 exercise exclusive jurisdiction over a defined geographical area. Almost all land on earth is subject to this regime.63 Consequently, territory, sovereignty, and the state, in legal terms, are inseparable. It is not possible to speak of a state's territory – or for that matter territorial integrity – outside of its coastal waters, because states and international organisations do not exercise full control there. Indeed, the ocean is subject to a multitude of sometimes overlapping political authorities and the jurisdiction of the coastal state becomes more circumscribed with distance from its coast.

Flag State Jurisdiction

The primary means of regulating offshore activity at sea since ancient times has been through the doctrine of flag state jurisdiction. This principle ensures that ships flying the flag of a given state are under its jurisdiction and administration wherever they may be in the world. In essence, the ships of a particular flag state have been considered floating pieces of its territory and have typically been thought of as nearly inviolable. Increasingly, flag states have accepted a number of obligations to provide a set of minimum

Sea Continental Shelf, para 19. The International Court of Justice has more explicitly addressed the question of the status of the continental shelf in the Aegean Continental Shelf Case: Aegean Sea Continental Shelf (Greece v. Turkey), 1976 I.C.J. 3 (Order of Sept. 11). The court seemed somewhat comfortable with the notion that maritime areas may be considered a part of the state broadly defined (see para 85, where it said that continental shelf delimitation was the delimitation of a boundary between 'neighbouring states'), though it is clear that the court did not consider the continental shelf thereby to be a part of the territory of the state. In construing the terms of a reservation made by Greece to the General Act for the Pacific Settlement of International Disputes, which excluded from compulsory adjudication issues “relating to the territorial status” of the country, Greece argued that the reservation could not have been considered to cover the continental shelf as legal rights to it did not exist in 1931 when the reservation was made, that “territorial status” had a specific meaning relating to the post-war settlement of the 1920s, and Greece did not even have sovereignty over some of the islands to which it claimed a continental shelf was appurtenant. Holding that the Greek government could nevertheless be considered to have intended a general and flexible understanding of its reservation, the court said that, given the evolution of the continental shelf doctrine, it would be inconceivable that “terms like 'domestic jurisdiction' and 'territorial status' were intended to have a fixed content regardless of the subsequent evolution of international law” (para 77) and that it would be “a little surprising if the meaning of Greece's reservation of disputes relating to its 'territorial status' was not also to evolve in the light of the change in the territorial extent of the Greek State brought about by 'the development of international relations'” (para 78). However, it stopped short of saying that the continental shelf was a part of the territory of a state. In construing the reservation, the court said that the “question is not, as Greece seems to assume, whether continental shelf rights are territorial rights or are comprised within the expression "territorial status". The real question for decision is, whether the dispute is one which relates to the territorial status of Greece” (para 81). The court had no difficulty in concluding that the continental shelf “relates to the territorial status” of a state (para 86). This situation arises because of the doctrine that the land dominates the sea, meaning that title to the continental shelf arises from title to land territory. Consequently, though the continental shelf is related to the territorial status of the state, it is not a part of its territory. 63 A notable exception is Antarctica, which is governed by a unique regime established by the Antarctic Treaty system. See M. J. Peterson, Managing the Frozen South: The Creation and Evolution of the Antarctic Treaty System, (Berkeley: University of California Press 1988).

28 standards for how they regulate their ships. The Law of the Sea Convention stipulates that every state “shall effectively exercise its jurisdiction and control... over ships flying its flag” and outlines a number of responsibilities for the flag state.64 There are also other more specialised treaties that place obligations on flag states. For example, the London Convention on the Dumping of Wastes at Sea 65 and the International

Convention on the Prevention of Pollution from Ships66 regulate international shipping to help prevent oil spills and other forms of marine pollution. Historically, only under certain very limited circumstances have the ships of one state been able to legally board and seize a vessel flying the flag of another on the high seas without its permission, including in cases of piracy or unauthorised broadcasting.

However, some agreements have softened the exclusive jurisdiction of the flag state, as they have created circumstances under which flag states have delegated their enforcement powers on a standing basis to other states. For example, the UN Fish Stocks Agreement put in place measures to allow any member of regional fisheries management organisations to board and inspect the fishing vessels of another member in order to monitor compliance with the organisation’s regulations.67 The set of treaties comprising the US

Proliferation Security Initiative68 provide for circumstances under which flag states should authorize foreign ships to board and inspect their vessels in instances where they are suspected of carrying materials of proliferation concern. However, these alterations to the default rule of flag state jurisdiction are sectoral in character and only apply to discreet activities. Moreover, they rely on consent and are, therefore, an exercise of a state's sovereignty over its ships. Whether or not they are party to these agreements, some states have simply been unwilling or unable effectively to exercise control over ships flying their flag. Flags of convenience are those provided by countries with lax regulation and enforcement of standards relating to the vessels registered in their jurisdiction. Flag state jurisdiction remains a central plank of the contemporary

64 UNCLOS, Art. 94(1). 65 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 26 UST 2403, 1046 UNTS 120, 11 ILM 1294 (1972). 66 International Convention for the Prevention of Pollution from Ships, 12 ILM 1319 (1973); TIAS No. 10,561; 34 UST 3407; 1340 UNTS 184. 67 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 34 ILM 1542 (1995); 2167 UNTS 88. 68 See Michael Byers, 'Policing the High Seas: The Proliferation Security Initative', The American Journal of International Law, 98:3 (2004), pp 526-545.

29 maritime legal regime: however, the weakness of relying solely on this principle has meant that it has been supplemented with other kinds of jurisdiction and flag state control is increasingly exercised concurrently with the jurisdiction of other states.

Port State Jurisdiction

Port state jurisdiction was explicitly recognised in UNCLOS.69 States have exclusive sovereignty over their ports and, therefore, so long as a ship is voluntarily within a port, a state may exercise its jurisdiction over it.

Port states can exercise three types of jurisdiction: territorial jurisdiction, quasi-territorial jurisdiction and extra-territorial jurisdiction.70 Territorial jurisdiction may be exercised with regard to violations of rules in a port state’s territorial sea, ports or internal waters.71 Quasi-territorial jurisdiction may be asserted regarding violations of properly enacted national or international regulations which took place in a port state’s exclusive economic zone or in relationship to its extended continental shelf. A port state may even take action for violations of standards that took place in the maritime zones of other states at their request. A state may also exercise extra-territorial jurisdiction over pollution incidents which took place on the high seas if they were in violation of international rules and standards.72

A state’s competence to take enforcement action varies depending on what kind of jurisdiction it is asserting, with greater enforcement potential for violations in the maritime zones in which the state has greater powers. Port states have even agreed to obligations actively to exercise their powers with regard to certain matters – particularly fishing – such as those in the Agreement on Port State Measures to Prevent,

Deter and Eliminate Illegal, Unreported and Unregulated Fishing.73 Such measures are designed to obviate the possibility that states will seek a competitive advantage over others by acting as ports of convenience by accepting fish in their ports that were taken under the circumstances listed in the agreement. However, the

69 UNCLOS, Article 218. 70 See Erik Jaap Molenaar, 'Port State Jurisdiction: Toward Comprehensive, Mandator and Global Coverage', Ocean Development and International Law, 38:1-2 (2007), pp 225-257. 71 Although, as a matter of comity, states will tend not to enforce their rules if breaches relate to the internal discipline of a ship. In these circumstances, the flag state will engage in enforcement action if it deems it necessary. 72 Though the port state must suspend proceedings in the event that the flag state requests it to do so. 73 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, November 2009, available at: {ftp://ftp.fao.org/docrep/fao/meeting/018/k6339e.pdf} accessed 26 June 2013.

30 exercise of port state jurisdiction depends on a ship physically coming into port and does not provide for enforcement actions to take place relating to ships navigating outside of a state's territorial sea. This kind of jurisdiction, however, has also been expanded in the modern ocean regime. Ocean spaces themselves have ceased to be entirely free from national control as flag state jurisdiction and port state jurisdiction have been supplemented by coastal state enforcement rights and obligations.

Coastal State Jurisdiction

Whether out of a desire to protect their security, environment or to gain control of resources, coastal states have always sought to regulate ocean space itself to varying degrees throughout history. With the growth of the doctrine of the freedom of the seas, coastal state sovereignty over the oceans was limited to a small band of waters and flag state jurisdiction reigned on the high seas beyond. In the middle of the twentieth century, many pressures – technological, environmental, political and economic – catalysed a move to bring ever larger areas of maritime space under the control of coastal states. Over the course of the next few decades, coastal state jurisdiction was expanded spatially at sea in a series of maritime zones, although the powers established were for the most part functional in nature and varied depending on the zone in which they were exercised. In general, the coastal state's powers are more expansive in the maritime zones closer to its shores

(as illustrated in figure 1).

31 Figure 1: UNCLOS Maritime Zones

Baseline 12 nautical miles 200 nautical miles

Exclusive Economic Zone High Seas Territorial Sea Certain High Seas rights available, such as High Seas Freedoms include laying cables and pipelines, free navigation and cable-laying. fishing, marine scientific research, navigation.

Exclusive Coastal State rights to explore for, exploit, conserve and manage living and non-living resources of the water column. Extended Continental Shelf The Area Exclusive sovereignty subject to right of Exclusive Coastal State rights to explore for, exploit, Exclusive Coastal State rights to explore Mineral resources the innocent conserve and manage living and non-living resources of for, exploit, conserve and manage living 'Common Heritage of passage. the seabed. and non-living resources of the seabed. Mankind'.

Transit Sovereign rights to the resources of the seabed even if Available if the physical features of the continental Regulated by passage if physical continental shelf does not extend to 200 nautical shelf, slope and rise extend beyond 200 nautical miles International Seabed int'l strait. miles. from baselines. Authority.

All spatial jurisdiction at sea begins at a state’s baselines. There are two distinct types of baselines: normal baselines that are defined at the low water mark of a state’s coast; and, in exceptional circumstances, straight baselines may be drawn.74 These may be drawn in two circumstances: where a coastline is deeply indented and cut into or when it is fringed with islands. The archetypal case, from which the doctrine was established, is the Norwegian coast which is lined with islands and is comprised of many fjords. 75 UNCLOS does not actually define the precise circumstances under which these baselines may be drawn and it has been left to state practice and judicial determination to establish clearer rules. Indeed, straight baselines and their legality remain controversial in many parts of the world. Maritime states such as the United States take a restrictive view of when they may be used, but there are many examples of states that take a much more liberal approach in the drawing of their baselines.76

Landward of straight baselines are internal waters. These waters have the same character as rivers, 74 UNCLOS, Articles 5 and 7. 75 See the Anglo-Norwegian Fisheries Case, (1951) ICJ Reports, p 116. 76 J. Ashley Roach and Robert Smith, 'Straight Baselines: the Need for a Universally Applied Norm', Ocean Development and International Law, 31:1 (2000), pp. 47-80.

32 internal seas and lakes – in other words, they are considered an inviolable part of the territory of the coastal state and there is no right of access to them. Internal waters also exist within historic or juridical bays. These are bays that have been continuously administered as internal waters and are widely recognised as such,77 or bays that conform to certain measurements and have been delineated with a closing line at their mouth or within the bay itself.78 Ports, too, are considered internal to the state and no entitlement exists for ships to enter them without permission. A state may make such entry subject to the conditions that it sees fit. The only exception to the inviolability of internal waters is where they have been enclosed by straight baselines, but were not previously considered as internal waters: in these areas there is a right of innocent passage, otherwise only available to ships transiting the territorial sea.79

The territorial sea is the maritime zone closest to the state. It begins at the state’s baselines and extends up to twelve nautical miles seaward. Within this zone, the coastal state exercises full sovereignty, including over the seabed and airspace. In other words, it has the right to enact laws that apply to foreign shipping and aircraft and it owns the resources of the zone. However, state sovereignty is effectively circumscribed in this zone by an institutionalised right of “innocent passage” for all shipping. 80 Innocent passage is continuous and expeditious transit through the territorial sea that is not prejudicial to the peace, good order and security of the coastal state. The Convention contains a non-exhaustive list of activities that are not deemed innocent, including the launching of aircraft, fishing, sailing submerged and wilful acts of pollution. In the event that passage is not innocent, a coastal state may require the ship to leave its territorial sea but otherwise it should not act so as to hamper innocent passage. In theory, innocent passage is available to all kinds of ships; but, while the Convention does not differentiate between military and commercial shipping, state practice is variable on this point. Some states require warships to seek and obtain permission before they enter their territorial waters.81

Requiring permission of ships passing through “straits used for international navigation” is much

77 United Nations Secretariat, 'Juridical Regime of Historic Waters, Including Bays', Yearbook of the International Law Commission, (New York: United Nations, 1962). 78 UNCLOS, Part I section 3. 79 UNCLOS, Article 10. 80 UNCLOS, Part I section 3. 81 See Roach and Smith, United States Responses.

33 more clearly prohibited. In these straits there is a right of transit passage, which is more liberal than that of innocent passage.82 Straits used for international navigation are those straits that connect two parts of the high seas or exclusive economic zones and are narrower than twenty-four nautical miles. Their breadth means they fall entirely within the territorial seas of one or more coastal states.83 These straits are often choke points for international trade and navigation, such as the Strait of Dover or the Malacca Strait. Thus, although the coastal state, or states, retain full sovereignty over these areas, including the resources within them, their control over foreign vessels and aircraft is more circumscribed than in other areas of territorial sea. Though a foreign ship may still not threaten the security of the straits state, or engage in fishing, submarines are not required to navigate on the surface. Moreover, aircraft are allowed to overfly these straits, unlike other areas of territorial sea. Finally, transit passage may not be suspended under any circumstances, unlike in other parts of the territorial sea.

An identical transit passage regime was created for certain routes within archipelagic waters, and is known as archipelagic sea-lanes passage.84 Archipelagic waters are the sovereign space of Archipelagic

States which have drawn archipelagic baselines. Archipelagic states are states composed of islands when those islands and the waters between them constitute a single political and economic entity. 85 Archipelagic baselines may be drawn around the outermost islands of the Archipelagic state so long as the land to water area ratio enclosed is between 1:1 and 1:9. Archipelagic waters exist within these baselines and the state exercises full sovereignty within them as if they were territorial waters, even if they are more than twelve nautical miles from the coast of any of its islands. A right of innocent passage exists in these waters, apart from within the Archipelagic sea-lane where transit passage rules apply. An archipelagic sea-lane must be declared by the Archipelagic state. In the event that no such declaration is made, it is the route customarily used for international navigation within the Archipelago. Internal waters may also be created within archipelagic waters in the usual manner if straight baselines or bay closing lines are drawn on the coast of

82 UNCLOS, Part III. 83 Excludes those straits regulated by long-standing conventions and those formed by an island of a given state and its mainland where there is a route of similar convenience seaward of the island. In the latter case, there is a non- suspendable right of innocent passage in the strait. 84 UNCLOS, Part IV. 85 UNCLOS, Article 46.

34 individual islands. Seaward of the archipelagic baselines, a state has a full suite of maritime zones.

Ordinarily within the exclusive economic zone, beyond the territorial sea and up to twenty-four nautical miles from a state’s baselines, a contiguous zone may also be declared.86 This is a particular functional zone that enables the state to enforce its sanitary, customs and fiscal laws or take measures to prevent their breach within its territory. The exclusive economic zone itself extends up to two hundred nautical miles from a state’s baselines.87 It must also actively be declared and some states have only declared zones in which they exercise somewhat lesser rights, such as the United Kingdom’s Exclusive Fishing Zone.

In the EEZ, the coastal state exercises sovereign rights for the purpose of exploring for and exploiting the economic resources of the zone. These rights relate both to living and non-living resources of the water column and the seabed, even if a state's geological continental shelf does not extend throughout the zone.

Coastal states also exercise rights to regulate and authorize the construction of installations and artificial islands used for economic activities. They are also empowered to regulate the marine environment and may establish such laws as they see fit to protect the environment of the zone.

That said, if those laws apply to design, manning and equipment specifications for foreign flagged ships, they may only give effect to generally accepted international standards. Otherwise, ships might have to deal with an inefficient patchwork of different regulations. Moreover, a state may not stop and inspect a vessel if it has breached its pollution laws within the EEZ unless the violation resulted in a substantial discharge that caused or threatened significant pollution. It may not arrest the ship unless major damage has been caused to the coastal state or threatens to do so.88 Finally, the coastal state also has the power to authorize marine scientific research, although there are provisions in the Convention to ensure that refusal of permission should be a rare occurrence. Therefore, the rights of the coastal state are circumscribed in the

EEZ; it also has a number of legal obligations.

Within its EEZ, the coastal state is under an obligation to protect and conserve natural resources. It must determine a total allowable catch with a view to achieving the maximum sustainable yield of fisheries

86 UNCLOS, Part II section 4. 87 See UNCLOS, Part V. 88 UNCLOS, Article 220.

35 resources in the zone. Further, it must cooperate with neighbouring states and high seas fishing states with regard to straddling stocks and highly migratory species.89 Though the EEZ is not a part of the high seas, certain high seas freedoms apply in the zone, including freedom of navigation, overflight and the laying of pipelines and cables, as well as “other internationally lawful uses of the sea related to these freedoms.” 90 The latter provision was inserted to ensure that naval powers could continue to engage in exercises and manoeuvres in the EEZ of other states, although this is controversial with some states purporting to require permission for warships to enter their EEZ.91 Other states, in apparent contravention of the convention, also have reporting requirements for foreign fishing vessels that are simply transiting their EEZ.

Beyond the EEZ is the high seas.92 Here, no coastal state controls over ships are possible and only the flag state may regulate its vessels, subject to any international agreements modifying this principle. All high seas freedoms, including fishing and marine scientific research, are enjoyed by every state on the high seas subject to their international obligations. However, coastal states may assert exclusive sovereign rights for the purposes of exploring for and exploiting natural resources on the seabed and within the subsoil of their continental shelf if it extends beyond two hundred nautical miles from their baselines.93 Those resources include all non-living matter as well as sedentary species that are either attached to the seabed or cannot move except by being in constant physical contact with the seabed at the stage in which they are harvestable.

As in its EEZ, the coastal state may authorize the construction of, and regulate, artificial islands and installations used for economic purposes. The coastal state may exercise its jurisdiction to the edge of the continental margin, which includes the geological features of the shelf itself, as well as the continental slope and the rise. As these rights are inherent, the continental shelf limits need not actively be declared for the coastal state to possess them to the exclusion of other states.

89 These relatively vague obligations in UNCLOS were refined and expanded in the United Nations Fish Stocks Agreement of 1995. On the agreement, see David A Balton, 'Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stock and Highly Migratory Fish Stocks', Ocean Development and International Law, 27:1-2 (1996), pp 125-151. 90 UNCLOS, Article 58(1). 91 On permissible military activities in the EEZ, see Raul Pedrezo, 'Close Encounters at Sea: The USNS Impeccable Incident', Naval War College Review, 62:3 (2009), pp 101-111. 92 UNCLOS, Article 86. 93 UNCLOS Part VI.

36 The outer edge of the continental margin must be measured by straight lines connecting fixed points not exceeding sixty nautical miles in length. These lines must connect points at which the depth of sediments are not less than one percent of the distance back to the foot of the slope, or by lines of the same length connecting points that are not more than sixty nautical miles from the foot of the slope. 94 Alternatively, a combination of both methods may be used. However, there are constraints to the ultimate limits of continental shelf jurisdiction: a coastal state may not extend the fixed points marking out its rights beyond

350 nautical miles from its baselines or one hundred nautical miles from the 2,500 metre isobath, whichever is further seaward.95 The Commission on the Limits of the Continental Shelf (CLCS) was created by the

Third Conference on the Law of the Sea in order to provide advice on the scientific data submitted to it by coastal states pursuant to their setting the limits of their extended continental shelf. The limits determined on the basis of that advice are “final and binding”.96

The continental shelf does not include the deep seabed with its oceanic ridges, which are beyond national jurisdiction. This area – indeed it is known as “the area” – is, instead, administered by the

International Seabed Authority.97 The mineral resources of the deep seabed are the “Common Heritage of

Humanity”98 and revenues from their exploitation are distributed based on certain principles throughout the community of states. The ISA also has jurisdiction over marine scientific research relating to the deep seabed and must regulate activities that impact on the marine environment there as well.

Given the overlapping uses and jurisdictions in the oceans, there is a general obligation for states and other entities to have due regard to the rights of others when they are exercising their functions at sea.

Moreover, the regime embodied in UNCLOS includes a well-developed system of dispute settlement. 99 A number of venues are available for states to seek judicial determination of the law, including the International

94 The foot of the slope is point of maximum change in the gradient at its base. 95 May not be used on submarine ridges. See Commission on the Limits of the Continental Shelf, 'Scientific and Technical Guidelines of The Commission on the Limits of the Continental Shelf', CLCS/11, May 13, 1999, p 11, available at {http://www.un.org/depts/los/clcs_new/commission_documents.htm#Guidelines} accessed 10 July 2013. 96 UNCLOS, Article 76(8). 97 See UNCLOS, Part XI and Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, 33 ILM 1309 (1994). 98 The original term was the gendered “Common Heritage of Mankind”. 99 UNCLOS, Part XV.

37 Court of Justice, the International Tribunal on the Law of the Sea, which was created by the treaty, and ad hoc tribunals. There are also special conciliation procedures mentioned in the Convention. Though dispute settlement with regard to many issues is compulsory, states may opt-out of these mechanisms on a number of issues, including the delimitation of maritime boundaries and the determination of total allowable catches.

Nevertheless, states have often engaged in litigation relating to maritime issues and oceans policies are one of the most highly legalised areas of international relations.

Summary

While a state possesses full sovereignty in its territorial sea, foreign ships nevertheless enjoy a right of innocent passage within this zone. So long as they do not engage in any activity which is prejudicial to the security and good order of the coastal state, any ship may use the territorial sea of any state for navigational purposes. A further contiguous zone of up to twelve miles may be declared in which the coastal state can enforce customs, fiscal and other laws. Beyond these bands of sea, the coastal state may exercise more limited control for the purposes of environmental regulation, as well as exploration and exploitation of living and non-living resources within a two hundred nautical mile exclusive economic zone. Moreover, if a state's continental shelf extends further than the limit of the EEZ, it may exercise sovereign rights for the purposes of exploration and exploitation of the resources on and under the sea-bed. Certain limits that relate to the shape and composition of the seafloor have been codified for this zone.

On the high seas, no state may exercise jurisdiction over foreign shipping without the consent of the flag state. Fishing species other than those on a state's continental shelf is free for the nationals of any state on the high seas. Similarly, there is an area of international sea-bed beyond the limits of national jurisdiction which is administered by the International Seabed Authority. The mineral resources of this area are the

Common Heritage of Humanity. Consequently, the coastal state's jurisdiction is circumscribed at sea and varies in its different maritime zones. Flag state jurisdiction is exercised in all areas of the oceans, and sometimes concurrently with that of the coastal state and port state. International organisations also exercise control of the seabed beyond national jurisdiction. Jurisdictions in the oceans are, therefore, diverse and

38 overlapping. While sovereignty is exclusive and the land itself is possessed by a given state, the oceans outside of the territorial sea are not owned as such by any authority. States are given only functional rights within their extended ocean jurisdictions and their rights to regulate activities there are limited.

Consequently, the oceans beyond twelve nautical miles from shore are mostly not the territory of states in a legal sense. The state is an entity with sovereignty over a particular space. Therefore, to use the term “territorial integrity” with relationship to the maritime zones beyond the territorial sea is technically incorrect. Moreover, the hallmark of statehood is the right to exclude and therefore to control ingress and egress across borders. Therefore, the right of freedom of navigation at sea makes the application of any territorial integrity norm there problematic as well. Even warships of another country enjoy a right to pass through the territorial sea of a particular state, so long as they do so in an “innocent” fashion. Within other national and international zones, the world's navies may continue to conduct military operations as they see fit, within the bounds of other rules of international law. It would appear to be absurd to suggest that territorial integrity could matter at sea under such conditions. While any unauthorised military penetration of the state is a clear violation of the legal standard of territorial integrity, this cannot be the case at sea. Indeed, it is partly this distinction between maritime and land space which has led to their differential treatment in the evolving laws of force in international affairs. This difference in treatment makes it unclear how maritime space relates to broader legal and political thinking about territory and appropriate behaviour towards it.

The Land and the Sea in the Changing Laws of Force

Aggressive warfare was finally delegitimised as an instrument of policy last century due to a number of political developments that will be discussed in the next section. These developments led to recurring legal efforts to define what precisely aggressive warfare is. They have, however, had an ambiguous relationship with maritime space. On the one hand, the norm of territorial integrity – understood as the illegitimacy of the acquisition of territory through the use of force – has been repeatedly reaffirmed even as states have equivocated regarding other uses of force. Brownlie comments that it is “a generally recognized principle of

39 customary or general international law that title to territory cannot be derived from the threat or use of force.

This principle is a corollary of the Kellogg-Briand Pact of 1928 and of Article 2, Paragraph 4, of the United

Nations Charter.”100 This injunction would appear to apply unproblematically to maritime space to the same degree as land space. However, it is clear that throughout the history of legal thinking about the legitimate ends to which violence may be put in international society, it has mainly been the land that has been constructed as an object of security and thus as the target of the injunction against conquest. This is also clear from analysing the major law of the sea treaties themselves. How states understand appropriate behaviour towards maritime space is, therefore, unclear from an assessment of legal sources.

The legitimacy of forceful territorial acquisition has been the subject of debate for centuries.101 Just war thinkers such as Suarez and Vattel considered aggressive war unethical and argued that unprovoked wars of conquest could not be waged. Classical liberals also considered territorial expansion to be problematic because it could violate the wishes of the subject population. However, these early invocations of the norm proscribing conquest had little influence on practice, with the legality of title arising from conquest unquestioned. Indeed, governments did not call into question the legitimacy of conquest until the French

Revolutionary Wars and the establishment of the Concert of Europe. The Congress of Vienna saw a consensus to disallow unilateral annexation in the area defined in the settlement. Guarantees of the territorial integrity of a number of individual states were also given. The International Union of American Republics later determined not to recognise any title acquired forcibly outside of a separately adopted treaty of arbitration. However, a similar Brazilian proposal at the 1907 Hague Conference did not succeed.

The devastating experience of World War I was the catalyst for the first widespread international legal effort to control the resort to war by states. The preservation of the territorial integrity of states was a principal aim in this contentious process. A system of collective security was proposed and promoted particularly by Woodrow Wilson, the last of whose fourteen points stated: “A general association of nations must be formed under specific covenants for the purpose of affording mutual guarantees of political

100 Ian Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations, (The Hague: Kluwer Law International, 1998), p 197. 101 Mikalus Fabry, 'The Evolution of the Norm of Territorial Integrity in International Relations', Paper presented at APSA Annual Convention, New Orleans, 30 August 2012.

40 independence and territorial integrity to great and small states alike.” A debate then ensued about when

Wilson's proposed collective security organization would be compelled to act and, therefore, what kinds of uses of force would be defined as “aggressive”.

Though some states, notably France, favoured an obligation to act to prevent all external uses of force, most of the great powers were keen to retain freedom of manoeuvre and avoid being drawn into every minor conflict.102 Ultimately, the Covenant of the League of Nations adopted an ambiguous standard:

The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.103

Thus, states were able to agree on this early invocation of the territorial integrity norm, though not to enumerate a more precise definition of aggression. States neither wanted to be compelled to prevent or reverse other uses of force, nor to have the option of engaging in them themselves entirely foreclosed. So, the Covenant concentrated solely on the construction of a prohibition relating to conquest on land because it was this that had been the cause of the most recent wars. Moreover, the illegitimacy of blatant wars of conquest was a standard to which all, or nearly all, states subscribed.

At this time, maritime space was naturally not conceptualised as an object to which aggression might be directed because extensive national marine zones had not yet been constructed. However, some were concerned about the possibilities for conflict that might emerge were states to begin to make extensive maritime claims. Indeed, Wilson had been keen to ensure that no territorial claims were made on the high seas: the second of his fourteen points insisted on the “absolute freedom of navigation upon the seas, outside territorial waters, alike in peace and in war.” Therefore, the ocean was not seen as a realm immune from friction and conflict. In a sense, the preservation of the freedom of the seas entailed a concomitant injunction against their annexation, but this is where the similarity with the land ended. That the solution was for them to remain open to the use of all, rather than enclosed within inviolable national boundaries as the land should

102 Page Wilson, Aggression, Crime and International Security: Moral, Political and Legal Dimensions of International Relations, (London: Routledge, 2009). 103 Article 10, Covenant of the League of Nations 225 Parry 195; 1 Hudson 1; 112 BFSP 13; 13 AJIL Supp. 128 (1919).

41 be, meant the ocean was conceived as a separate space demanding separate solutions. The norm proscribing conquest was naturally not regarded as applying at sea in the same was as it did on land.

As the inter-war period progressed, the dominant view continued to be that war was a highly problematic endeavour and further attempts were made to seek to end it. The General Treaty for the

Renunciation of War104 – better known as the Kellogg-Briand Pact – of 1928 was signed by a number of major powers, including France, the United Kingdom, the USA and Germany. Article 1 declared that the parties condemned “recourse to war for the solution of international controversies” and they renounced it as an instrument of national policy. They further agreed to settle all disputes and conflicts by pacific means.

These general efforts to outlaw warfare naturally were unlimited in the circumstances to which they could apply, including warfare over maritime spaces. This possibility was not explicitly articulated in the treaty, however, which, like the League, predated extensive maritime enclosure.

Like the League of Nations Covenant, then, the Kellogg-Briand Pact did not include a definition of war and the legal status of measures short of war was not clear.105 States thus expressed abhorrence for war in the abstract, but the commitments made were to exercise precious little control over the actions of Germany,

Italy and Japan as they engaged in a series of aggressive actions in the lead up to World War Two.

Consequently, in the closing days of the Second World War and its immediate aftermath, the allies turned their attention once more to questions of how to restrain the resort to war, but in so doing they abandoned the term “war” itself.106

At Dumbarton Oaks in 1944, the old divisions reappeared as the United Kingdom and the United

States once more opposed a more comprehensive definition of aggression and, in fact, sought to move away from the term altogether. The result was a vague compromise proposal for a new international organization

104 The General Treaty for the Renunciation of War, 1928. 94 LNTS 57 (1928). 105 See Belatchew Asrat, Prohibition of Force Under the UN Charter: A Study of Art. 2(4), (Uppsala: Iustus, 1991), p 33. It is also worth noting the provision on territorial integrity in a treaty designed to supplement the Kellogg-Briand Pact – Anti-war Treaty of Non-aggression and Conciliation (Saavedra Lamas Treaty); October 10, 1933, 49 Stat. 3363; Treaty Series 906, available at: {http://avalon.law.yale.edu/20th_century/intam01.asp} accessed on 17 September 2013. The signatories declared in Article II that “territorial questions must not be settled by resort to violence and that they shall recognize no territorial arrangement not obtained through pacific means, nor the validity of an occupation or acquisition of territory brought about by armed force.” 106 See Asrat, Prohibition of Force, p 37.

42 to include a security council which would be empowered to act in the face of threats to the peace, breaches of the peace and acts of aggression. This formulation was eventually incorporated into the UN Charter, the negotiation of which achieved little progress on a precise definition of aggression.

At San Francisco, though smaller powers wished to see the enumeration of a list of acts that would be outlawed as aggressive in character, the decision was taken not to engage in extensive definition of the term “aggression” in the UN Charter. States instead settled for Article 2(4), which outlaws the “threat or use of force against the territorial integrity of political independence of any state, or in any other manner inconsistent with the purposes of the UN Charter.”107 At the same time, they gave wide-ranging competence to the Security Council to determine when threats to the peace had occurred. Article 2(4) has provided a standard that has been returned to again and again in Security Council Resolutions, General Assembly

Declarations and treaties establishing regional organizations.

Asrat has argued that the inclusion of language relating to “territorial integrity” was not designed to limit the application of the Charter.108 Consequently, Article 2(4) contains a general expression of the undesirability of the use of force,109 as the Charter's main purpose was to “maintain international peace and security.” It also generally preserves a state's rights in non-territorial spaces through its protection of

“political independence.” However, it reflects a much more specific and solid consensus on the illegitimacy of conquest and the sanctity of state borders.110 This emphasis is unsurprising: as Reisman comments, Article

107 Asrat suggests that the reference to territorial integrity in Article 2(4) could be understood to apply to the continental shelf. This might be reinforced by the judgment in the North Sea Continental Shelf Cases, which suggested that the continental shelf was territory over which states had dominion. However, as discussed above, this does not automatically equate to it being the territory of the state. Additionally, continental shelf rights did not exist when the Charter was negotiated. This formulation also creates problems for those states with a narrow geographical continental shelf as they do not have rights over it by virtue of it being the natural prolongation of their land mass. Instead, their rights are included within the regime of the EEZ. Asrat makes no mention that Article 2(4) could apply to the EEZ and I have found no other authority to that effect. It is also hard to reconcile Asrat's position with that of the International Court of Justice in the Aegean Continental Shelf Case. Asrat, Prohibition of Force. The Max Planck Encyclopedia of Public International Law, moreover, states that territorial integrity “extends principally over land territory, the territorial sea appurtenant to the land, and the seabed and subsoil of the territorial sea.”, Samuel K.N. Blay, 'Territorial Integrity and Political Independence', in Rudiger Wolfrum (ed) The Max Planck Encyclopedia of Public International Law, (Oxford University Press, 2008), para 1. At any rate, it is clear that the state's maritime zones have never been explicitly conceptualised in the various episodes of law making as subject to possible conquest and so the applicability or otherwise of Article 2(4) to maritime zones beyond the territorial sea is unclear. 108 Asrat, Prohibition of Force, p 147. 109 Though it is perhaps intentionally vague as to what kind of force is prohibited. Asrat, Prohibition of Force, p 40. 110 Preamble, Charter of the United Nations, 59 Stat. 1031; T.S. No. 993.

43 2(4) was very much a product of its time,

The expression of Article 2(4), in the form of a rule, is premised on a political context and a technological environment that have been changing inexorably since the end of the 19th century. The rule assumes that the only threat of usurpation of the right of political independence of a people within a particular territorial community is from external, overt invasion.111

Consequently, though the article's formulation is intentionally sufficiently flexible to cover a multitude of different actions, the principal concern of the Charter's framers was with the prevention of the kinds of overt wars of conquest they had just experienced.112

Attempts to destabilize governments, the sponsorship of acts of terrorism, or for that matter the security of maritime spaces, were simply not on the minds of the Charter's framers, even though, in the case of the first two, they were to become the dominant security threats further into the Cold War period. Later legal documents contain just as much ambiguity, however, and not because other types of conflict were not uppermost in the minds of those framing them. Rather, United Nations efforts to define aggression became captive to the tensions of the Cold War and the positions of the two main blocs on the relevant issues were simply too far apart for a meaningful consensus to arise.

It was not until 1974 that the General Assembly of the United Nations adopted Resolution 3314, which defined aggression.113 The resolution revealed the same focus of states on the prohibition of conquest.

Its preamble linked together land-based concepts in its reaffirmation of “the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom and independence, or to disrupt territorial integrity” and it further reaffirmed that “the territory of a State shall not be violated by being the object, even temporarily, of military occupation... and that it shall not be the object of acquisition by another

State resulting from such measures or the threat thereof.” The idea of conquest at sea, despite the extensive movement of national maritime enclosure that was ongoing in international society, was simply still not

111 W. Michael Reisman, 'Coercion and Self-Determination: Construing Article 2(4)', The American Journal of International Law, 78:3 (1984), pp 642-645, p 644. 112 See also Blay, 'Territorial Integrity', para 5, which states “Conscious of the territorial issues that underpinned World War II, the founding members of the United Nations were keen to emphasize the issue of territorial inviolability and the concepts of territorial integrity and political independence.” 113 Resolution 3314 (XXIX), Definition of Aggression, United Nations General Assembly, 29th s., 14 December 1974.

44 addressed directly by the United Nations.

Aggression was defined in the resolution as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” This definition, therefore, included the same concrete norm of territorial integrity, which applies to land, and a much more vague prohibition on other uses of force.

Those vague provisions can certainly be understood to outlaw maritime conquest, but it is clear that this meaning was not at the top of the minds of the framers of the Resolution whose understanding of the integrity of territory related to land. Indeed, for the first time, the definition adopted by the General

Assembly included a list of actions that would qualify as aggression and it is worth quoting them at length.

a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof. b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; c) The blockade of the ports or coasts of a State by the armed forces of another State; d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

Much like the general definition of aggression, the focus of the list is clearly on the security of the state and its territory and the prohibition of conquest and breaches of territorial integrity on land. The ocean, on the other hand, is rendered a space upon which battles or the blockade of access to land territory may take place, but not a potential object of security itself.114 The desire to prevent war in general meant it was once more acknowledged that the Security Council retained the power to determine other acts as aggressive and the list was therefore not exhaustive. 114 Bilateral treaties of alliance have had a similar focus. For example, the Mutual Defence Treaty between the United States and the Philippines committed the parties to assist each other in the event of an armed attack “on the metropolitan territory of either of the Parties or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.” Mutual Defense Treaty Between the United States and the Republic of the Philippines; August 30, 1951, available at: {http://avalon.law.yale.edu/20th_century/phil001.asp} accessed on 17 September 2013.

45 The latest effort to define aggression took place at the 2010 Review Conference for the International

Criminal Court. The delegates succeeded in adopting a definition, but it borrowed heavily from the formula adopted in 1974 by the General Assembly. The only major evolution was that the Conference defined the crime of aggression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the

United Nations.”115 The act of aggression referenced in this declaration was defined in the same way as

Resolution 3314, and also included the land-focused list from that instrument with no further mention of marine space. Therefore, the injunction against conquest has not tended to be reflected in legal documents as one with application to maritime space.

It might be thought that such a statement would at least be present in the specific treaties dealing with the oceans. However, within the Law of the Sea Convention itself, there is no mention of the concept of the territorial integrity of states' offshore zones equivalent to that contained within Article 2(4) of the United

Nations Charter. This should be unsurprising given that states' maritime jurisdictions are not their territory in a legal sense, but there is not even language comparable to that of Article 2(4) of the Charter. Indeed, there is no language in the convention that evinces any sense that its creators were concerned about the possibility of widespread territorial revisionism at sea. There is language relating to the peaceful settlement of disputes and the high seas are reserved for peaceful purposes,116 but this is not identical with the concept of the inviolability of the jurisdictions of states and other bodies at sea. It accords more with Article 2(3) of the UN

Charter, which states “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” than with an explicit prohibition on the use of force to alter boundaries.

Indeed, the language of the convention relates largely to the positive rights of states in their maritime zones, rather than on negative prohibitions on their behaviour outside of them, except Article 58(3), which

115 UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: {http://www.refworld.org/docid/3ae6b3a84.html} accessed 10 July 2013. 116 UNCLOS, Article 88.

46 states: “In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this

Convention...” Similar due regard provisions are present for other maritime zones and due regard for the legitimate activities of others is, indeed, a standing requirement for all conduct at sea. Again, this language hardly evinces the same concern for security of ocean zones as the UN Charter does over land. It merely places an obligation on states to consult and cooperate because the uses of ocean space often overlap and are subject to different regimes of authority.

The lack of the language of jurisdictional inviolability might simply reflect the preoccupation with the Convention's drafters with the preservation of the freedom of the seas and the high seas themselves. To be sure, the only thing coming close to a statement of the inviolability of a maritime zone is a prohibition relating to declarations of sovereignty over the high seas.117 But this standard is designed to prevent further expansionism and the interference with freedom of navigation rather than conquest – much less the conquest of one state's legitimate maritime zones by another.

A further reason why a norm similar to that of territorial integrity might not have explicitly been stated in UNCLOS is that the convention was designed to regulate the oceans only in times of peace.

However, the Convention mentions the peaceful resolution of disputes and the peaceful uses of the high seas, which would appear to discount this explanation. Moreover, though the law of conflict at sea has not been similarly codified in a global treaty, it is embodied in a long-standing body of customary international law.

That corpus of law is reflected in the San Remo Manual on International Law Applicable to Armed Conflicts at Sea,118 which was adopted by the International Institute of Humanitarian Law in 1994 after a series of roundtable discussions by experts on law and naval strategy.

The handbook is widely recognised as a statement of the law, as evidenced by its referencing by

117 UNCLOS, Article 89. 118 International Institute of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, available at: {http://www.icrc.org/IHL.nsf/52d68d14de6160e0c12563da005fdb1b/7694fe2016f347e1c125641f002d49ce! OpenDocument} accessed 27 March 2013.

47 scholars and diplomats after the Israeli interception of the “Gaza Freedom Flotilla” in May 2010.119 However, the provisions contained within it relate only to the conduct of hostilities at sea: issues such as the immunities of certain kinds of ships and the requirement to act with proportionality in the pursuit of military objectives dominate the manual. Maritime zones, on the other hand, are mentioned only in the sections that deal with where hostilities may take place and they and their resources are not conceived as potential targets of military action themselves. Consequently, the manual is a reflection of the geopolitical and strategic discourse that sees only the land as an object of security with the ocean remaining a theatre of conflict alone.

In short, neither UNCLOS nor the San Remo Handbook contain a standard similar to the territorial integrity provision of the UN Charter. Therefore, certainly, the aggressive use of force at sea is illegal on the terms of the Law of the Sea Convention and, indeed the UN Charter, but this illegality cannot be understood as an explicit concomitant of the territorial integrity norm. Territorial integrity has primarily been understood as a prohibition of conquest and it has always been considered in association with the land and the state that occupies it. The relationship of it to maritime space, therefore, remains ambiguous.

In sum, war was once an expected, unproblematic and indeed glorious pursuit – the sport of kings.

Gradually, it has become thought of as abhorrent, deviant and something to be restrained and preferably abolished. It is this current that, in part, led to the articulation of a legal standard of territorial integrity and the decline of conquest as a legitimate practice in states' international relations. Despite this milieu of the declining social value of war, it has proved extraordinarily difficult to define the aggression that it is understood as desirable to prevent. Indeed, Page Wilson notes that “beyond an overt war of conquest, where a state's leadership publicly declares its intentions to conquer a particular territory, and then sets about doing so, there is very little consensus”120 on what constitutes aggression in international society. Indeed, though there has been a general delegitimisation of war in international society, the norm proscribing conquest would seem to take on a special status within this larger normative development that has so far not succeeded in generating many similar proscriptions. In short, the proscription relating to conquest is thought of as an

119 See Leigh Sales, 'Israeli Government Defends Raids', Austrailian Broadcasting Corporation, 31 May 2010, available at: {http://www.abc.net.au/lateline/content/2010/s2914517.htm} accessed 10 July 2013. 120 Wilson, Aggression, p 5.

48 absolute rule allowing no derogation. The defensibility and legality of the more general category of actions potentially constituting aggression is, by contrast, highly contested.121

However, the norm of territorial integrity and the sanctity of boundaries has been understood to be concerned with the land and the state in the negotiation of various legal documents pertaining to the use of force in international relations. It is not clear where marine space fits into this complex of more or less contested norms about the use of force in international relations. The law of the sea provides few further clues. The UN Convention on the Law of the Sea contains no language explicitly proscribing the alteration of maritime boundaries by force and other legal documents reflect the notion of marine space as a battlefield rather than a potential object of conquest. Consequently, while it is clear that the use of force to alter maritime boundaries would be illegal, it is not certain that an act of conquest at sea would be received as similar to such an act on land. In other words, it is uncertain whether it is possible to speak of a norm comparable to the territorial integrity norm for maritime space, especially given the different social and political constructions of land and sea.

Land and Sea: Socially and Politically Distinct

Zacher's account of the genesis and underpinning of the territorial integrity norm cannot apply unproblematically at sea. He contends that the basis of the norm of territorial integrity on land has been both instrumental and ideational.122 Instrumental reasons are, for Zacher, those rooted in the notion that a norm is congruent with the self-interests of states. Zacher concludes that the devastating historical experience of conflicts over land territory provides this instrumental rationale for the norm of territorial integrity.

Ideational reasons, on the other hand, refer to the changing beliefs about ethical behaviour towards other states and peoples. The doctrine of self-determination has constituted the ideational basis of the norm.

Holsti has expanded on the changing social construction of territory and the practices associated with

121 While aggressive war has declined in legitimacy, other reasons to employ force have emerged, such as to prevent major humanitarian emergencies. See, for example, Martha Finnemore, The Purpose of Intervention: Changing Beliefs About the Use of Force, (Ithaca: Cornell University Press, 2003). 122 Zacher 'The Territorial Integrity Norm', p 216.

49 those views.123 From the advent of territorial rule to around the late seventeenth or early eighteenth century, the land of any particular state was conceived as the personal possession of the monarch. The dominant practices with regard to territorial change were therefore quite different to those of today. Conquest, partition, compensation, sale, marriage, and exchange all led to regular alterations of the territorial order of the early modern period. Territory was, thus, thought of in instrumental and commercial, not social, terms.

Following that period, territory became associated with power, security and state-building, with territorial claims designed to further those goals.

The advent of nationalism and romanticism, however, fundamentally altered the way territory was viewed. It was no longer conceived as belonging to the monarch; instead, it came to be thought of as a vessel that contained a distinct people and culture. Further evolution of ideas about territory emphasised its status as a homeland to which peoples were entitled in exercise of their legitimate aspirations for self-determination.124

Consequently, the polity became “a moral good: to challenge ownership of territory was to challenge that good.”125 Changes to the territorial order by force lost their legitimacy and the land could no longer be legitimately exchanged without the consent of the state and often its people.

However, Zacher concludes that, though the territorial integrity norm cannot be understood without the background of the evolution of ethical thinking about territory, the desire to prevent conflict and disorder provides its primary underpinning. It became clear in the aftermath of World War I that self-determination could not be implemented as the basis for ordering territory as it would lead to separatism, irredentism and, therefore, war. Consequently, international opinion favoured the stability provided by respecting international borders, although self-determination occasionally provides the rationale for some changes in the territorial order and breaches of territorial integrity.126 Outside of the western world, Zacher credits western support for the norm as underpinning compliance with territorial integrity. He also cites state weakness, as well as the existence of ethnic groups that overlap international boundaries as further reasons.

123 Holsti, Taming the Sovereigns, chapter 3. 124 On the social construction of territory, see Tuomas Forsberg, 'The Ground without Foundation: Territory as a Social Construct', Geopolitics, 8:2 (2003) pp 7-24 and Hensel, 'Charting a Course', p 117-119. 125 Holsti, Taming the Sovereigns, p 86. 126 Sebastian C. St J. Anstis and Mark W. Zacher, 'The Normative Bases of the Global Territorial Order', Diplomacy and Statecraft, 21:2 (2010), pp 306-323.

50 These conditions create shared vulnerabilities and therefore shared regional interests for states to oppose acts of territorial revisionism. Most of these bases for the norm do not translate to offshore spaces.

People do not live permanently at sea and, at first glance, it seems the history and ideational construction of ocean space has been entirely different to that of land. Steinberg has examined the social construction of the ocean throughout several centuries of modern history.127 He concludes that there are three different modes of thinking about the ocean: as territory, as an arena in which social control can be exercised and as a great void. Thinking about the ocean as territory has tended to be confined to a band of coastal waters. The ocean as a domain in which social control is exercised has been a construction of the ocean as amenable to some level of regulation, but not of ownership. Steinberg suggests that the great void idealisation has been dominant in recent decades due to the imperatives of the capitalist system to use the sea for transportation. He says that “the sea largely has been constructed as 'non-territory', an untameable space that resists 'filling' or 'development.'”128 As a consequence, for Steinberg, the ocean has been viewed as the antithesis of land space – it is an obstacle in the way rather than a space with any intrinsic social value.

Some thinkers have contemplated the construction of some areas of land in a similar way. Larry May distinguished inhabited from uninhabited land in terms of the defensibility of aggression relating to it. He suggests that the violation of human rights is the key ingredient for the criminalisation of aggression, so the invasion and annexation of uninhabited land would not be so problematic as that relating to inhabited land. 129

Given that maritime spaces would seem to have more in common with uninhabited than inhabited land, this distinction might be made relating to the violation of a state's maritime zones as well. In short, the non- populated status of marine space might suggest forceful challenges to states' offshore zones could be considered less ethically problematic than invasion of its territory. This kind of thinking would not put the seizure of states' maritime spaces within the same category of behaviour as acts of conquest on land.

Finally, the geopolitical discourse has understood the state as the central actor with the ocean as merely a space in which these entities compete with each other and extend their power to distant shores. 130

127 Steinberg, Social Construction. 128 Steinberg, Social Construction, p 34. 129 Larry May, Aggression and Crimes Against Peace, (Cambridge: Cambridge University Press, 2008), p 213. 130 Steinberg Social Construction, pp 16-18.

51 There has, consequently, been no recent history of territorial-like conflict at sea, because the ocean has not been constructed as a space to be fought for in its own right. Prior to about the middle of the last century, even fish were thought to be inexhaustible and offshore oil, even if known about, was not thought to be recoverable. Consequently, even Zacher's hypothesised instrumental basis for the standard of inviolable boundaries would not seem to apply unproblematically at sea. The ocean has simply not been the cause of the kinds of devastating conflict that the land has been. The evolution of the territorial integrity norm was intimately associated with the history and social characteristics of the latter and not the former. When combined with the different conceptual status of maritime space, this makes the extrapolation of the norm of territorial integrity to maritime space problematic.

Summary

In sum, the legal order of the sea is different from that relating to land. The rules on the use of force strongly prohibit conquest and the breaching of borders on land. The ocean, however, has not been included in the construction of this widely-supported standard. Added to this, the non-territorial status of most of the ocean makes for terminological and practical problems in applying the notion of territorial integrity there. At the very least, the violation of a norm similar to territorial integrity at sea would look different to that on land.

Moreover, the social construction of and patterns of jurisdiction relating to the land and sea have differed historically, making any unproblematic application of land-based norms difficult in relationship to maritime space. Indeed, the Law of the Sea Convention and other legal documents are silent on the issue of maritime conquest. This silence makes the relationship between norms regarding the use of force and maritime space even more ambiguous. It might suggest that the ocean is a realm that lacks the same injunctions on behavior that exist on land. It might further suggest that they are a space in which material power dynamics could more easily play out unencumbered by normative concerns.

Indeed, there are a number of alternative explanations for states' behavior at sea that relate to power and material interests. Explanations related to power would predict a comparatively unstable maritime order based on the interests of dominant states and perhaps even compliance through coercion. Concerns about

52 security, on the other hand, suggest that expansive state control of the seas would be opposed by powerful states so as to retain a liberal navigation regime enabling global force projection. A similar regime might be preferred for economic reasons as maritime space is an important transport surface in the system of international trade. Finally, many states may lack the capacity to engage in maritime conquest, or calculate that the law of the sea order is of benefit to them. All of these explanations contain weaknesses; although there is no mono-causal account of the behavior of states towards maritime space, a focus on norms is necessary to provide a complete explanation for the contemporary shape of international order in the oceans.

Explaining States' Territorial Practices at Sea: Power and Security

The major works in the realist theoretical tradition have tended either to ignore maritime space altogether, or understand it as a de-politicized realm of little importance independent of the land. Nevertheless, the realist emphasis on issues of power and security might provide predictions about the way states should behave with regard to maritime space. Scholars like Robert Gilpin argued that international rules and institutions are underwritten by the interests of powerful states.131 Writing in the same tradition, other authors, such as

Martin Wight, predicted that states will expand their territories given the chance.132 With the contemporary importance of marine resources, there seems little reason why states would not seek to expand their maritime jurisdictions as well. Indeed, states did unilaterally expand their offshore jurisdictions prior to the codification of the UNCLOS regime. These actions would appear to contradict the behaviour predicted by a norm similar to that of territorial integrity.

To be sure, Zacher conceives of the territorial integrity norm in two senses: as a proscription against forceful territorial aggrandisement – in other words the simple spatial expansion of the state – and a standard that forbids the alteration of international boundaries by force. On land, the two are inseparable, but, at sea, until the jurisdictional order was created in UNCLOS, Zacher's second understanding of territorial integrity could have no meaning as the ocean was almost exclusively not under the control of any national or international authorities. It had been constructed in a legal sense as a global commons, available for the use 131 Robert Gilpin, War and Change in World Politics, (Cambridge: Cambridge University Press, 1983). 132 Wight, Power Politics; Schweller, 'Managing the Rise of Great Powers'.

53 of everyone, but not the property of anyone; and there was a lively debate prior to the first extensions of regulatory control over the continental shelf on whether the sea floor was terra nullius.133 States could, therefore, expand at sea without violating the boundaries of other states. However, the development of extended maritime zones themselves could be viewed as a kind of territorial aggrandisement in Zacher's first sense as they involved states seeking to extend their jurisdictions over the ocean and sometimes encountering opposition when they did so.

However, many episodes of this territorial aggrandisement at sea were unopposed and even emulated by other states. This was particularly the case with control over the continental shelf – an innovation of which many states took advantage. Although some maritime claims did attract protests from the international community, the opposition was not couched in terms of the inappropriateness of expansionism itself. A number of states opposed some aspects of expansionist activity in the ocean, but it was not the extension of national jurisdiction per se that concerned them; rather, it was the extension specifically of territorial sovereignty to the water column.134 Maritime states, in particular, were worried about interference with the freedom of navigation and fishing, on which international trade and a portion of their livelihoods depended.135 Consequently, a kind of territorial expansionism in the form of continental shelf claims took place unopposed, while other expansions of jurisdiction were opposed only because they interfered with high seas freedoms. This might be taken to suggest that the prohibition relating to territorial aggrandisement does not apply to the sea.

However, that the reaction against early expansionism was concerned with the kind of jurisdiction rather than the policy of expansionism itself does not automatically mean that states would sanction a 133 See Edwin Borchard, 'Resources of the Continental Shelf', The American Journal of International Law 40:1 (1946), pp 53-70 and Kunz, Josef L. Kunz, 'Continental Shelf and International Law: Confusion and Abuse', The American Journal of International Law, 50:4 (1956), pp 828-853, p 830. Kunz said that occupation was a means of acquiring sovereignty for the first occupant only. 134 Lauterpacht explains: “A conspicuous and significant feature of the various proclamations and other formal assertions of the right to adjacent submarine areas has been the degree of general acquiescence in what at first sight appeared to be a startling innovation. That acquiescence has expressed itself in an entire absence of protest except in isolated cases in which the proclamation of rights over the adjacent submarine areas has been combined with or has served as a cloak for the assertion of claims to sovereignty over the high seas.” Hersch Lauterpacht, 'Sovereignty over Submarine Areas', The British Yearbook of International Law, 27 (1950) pp 376-433, p 393. 135 Kunz argued that the continental shelf doctrine was not customary international law as late as 1956 and that it threatened the freedom of the seas. He cites a number of protests from states using the same arguments. Kunz, 'Continental Shelf', p 833-836.

54 violation of international boundaries at sea now they have been constructed. Moreover, that there was little reaction against some forms of jurisdictional aggrandisement at sea was not simply because any form of expansionism was licensed there. As we will see later, it is clear that there were expectations about legitimate expansionism that limited claims to jurisdiction at sea, and upon which the stability of maritime boundaries were understood to be contingent. In other words, the expansionism that did take place at sea prior to

UNCLOS was not disordered and unregulated.

Indeed, the very creation of the maritime zones established in UNCLOS reflected a different route to the historical experience with land on which authors like Wight based their observations. Unlike land, the ocean was not ultimately allocated through the use of force, but rather in a series of global legal conferences.

Finally, since the law relating to maritime jurisdictions was settled at the Third UN Conference on the Law of the Sea, there have been no episodes of further forceful expansionism at all. More than that, as we shall see in the next chapter, there have been no acts of maritime conquest for nearly the last seventy years since the advent of coastal state control over continental shelf resources. This reinforces the possibility that something similar to the territorial integrity norm might be conceived to apply to maritime space.

Thus, the oceans were not allocated through forceful means and states have not expanded their maritime jurisdictions unilaterally in violation of the law. However, this might be because the territorial order that was created, albeit through legal, rather than forceful processes, was in the interests of the powerful states. On the face of it, the property rights regime embodied in the contemporary law of the sea might be accounted for by such an explanation: the greatest beneficiary of the Exclusive Economic Zone concept in spatial terms is the United States. Moreover, other leading powers, such as Russia, France, Australia,

Canada, the United Kingdom and Japan are all in the top ten of countries with the largest entitlements.

However, within the top ten are also some unexpected entrants: New Zealand, Indonesia and Chile. Other great powers such as China, Italy, Germany and India are much further down the list, while states of negligible influence, such as Kiribati and the Federated States of Micronesia appear within the list of the top

15 states in terms of the size of their EEZs.136 Added to this, Norway gained one of the world's largest 136 See The Basement Geographer, 'Exclusive Economic Zones: How Some Countries Are a Lot Larger than They Appear', 10 March 2011, available at: {http://basementgeographer.com/exclusive-economic-zones-how-some-

55 continental margins137 and even those, such as Iceland and Brunei, with smaller entitlements gained some of the richest fisheries and oil deposits in the world. Indeed, though states used their bargaining resources in the negotiations that created the law of the sea property rights order, the broad basis on which marine space was apportioned was a set of general principles unrelated to material power.

That said, Fazal emphasises the role of power in the development of the territorial integrity norm on land in a different way.138 She highlights the major role of the United States in the development of the norm, embodied particularly in the emphasis of President Wilson on self-determination. She points further to the continuing support from powerful states for the norm as the primary explanation for compliance with it. But this power-basis for the norm on land, even if it is correct, is at least somewhat more problematic when applied to the ocean. The major powers of the international system resisted many of the calls for control over the resources of the ocean that the, primarily developing, coastal states made during the process of constructing the law of the sea property rights regime. Instead, until relatively late, they favoured the continuation of the doctrine of the freedom of the seas in relationship, at least, to the resources of the water- column and the breadth of the territorial sea. They also favoured an open access regime for the resources of the deep sea-bed beyond the continental shelf. Indeed, the United States has to this day not ratified

UNCLOS, because some politicians fear its options being fettered by legal obligations. 139 It is, therefore, not necessarily immediately clear what the material interests of western states would be in the maintenance of stable boundaries at sea. Moreover, the preferences of the United States in Fazal's analysis are not exogenous to the normative context in which it found itself and different great powers acted differently in alternative historical epochs. Finally, the interests of powerful states are varied and do not relate simply to gaining as much offshore space as they can or maintaining international stability.

The security needs of states are understood by realists to be a primary concern. They might point to

countries-are-a-lot-larger-than-they-appear/} accessed 10 July 2013. 137 Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World, 2nd Ed., (Boston: Martinus Nijhoff Publishers, 2005), p 53. 138 Tanisha Fazal, State Death: the Politics and Geography of Conquest, Occupation and Annexation, (Princeton: Princeton University Press, 2007). 139 Though the USA has accepted the major provisions of UNCLOS as reflective of customary international law and behaves in compliance with them.

56 the interest powerful states had when the contemporary maritime order was crafted in maintaining maximum freedom to employ the tools of power-projection: their militaries. Laursen has assessed the ability of competing theories to account for the development of US policy over the course of the negotiations relating to the law of the sea at the Third UN Conference.140 He concludes that a realist approach explains aspects of

US behaviour quite well and that the American goal of retaining maximum possible freedom for military operations at sea was largely achieved.

A special regime that safeguarded navigation through international straits and archipelagic waters was agreed;141 creeping jurisdiction and the ability of coastal states to assert control over shipping beyond their territorial seas was also forestalled, as were efforts to make it mandatory for foreign warships to seek permission to enter the territorial sea. Indeed, the security concerns of powerful states led to a prohibition of sovereignty declarations over the high seas and other prominent safeguards in UNCLOS for navigational freedoms. If the maintenance of free navigation was the reason why states wished to prevent maritime conquest, there should also be a norm similar to territorial integrity stated as strongly as those forbidding interference with high seas freedoms and navigation. That the norm is not explicitly formulated suggests other forces were at work when the convention was negotiated.

Moreover, the conclusion that powerful states agreed to the creation of extended maritime zones in exchange for the protection of navigation rights because they considered them more important is also insufficient to explain the lack of conquest at sea.142 Though questions of the governance of maritime spaces

140 Finn Laursen, 'Security Versus Access to Resources: Explaining a Decade of US Ocean Policy', World Politics, 34:2 (1982), pp. 197-229. See also Laursen, Finn, 'The Law of the Sea and International Security: Aspects of Superpower Policy', in Finn Laursen (ed) Toward a New International Marine Order: Proceedings of the NIO Youth Seminar held in Amsterdam, (The Hague/Boston/London: Martinus Nijhoff Publishers, 1982). 141 See John Norton Moore, 'The Regime of Straits and the Third UN Conference on the Law of the Sea', The American Journal of International Law, 74 (1980), pp 77-121; S.N. Nandan and D.H. Anderson, 'Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea 1982', The British Yearbook of International Law, 60:1 (1989), pp 160-204 and Friedheim, Negotiating the New Ocean Regime, p 87- 89. 142 US Ambassador to the Conference, John R. Stevenson, said: “[W]e are prepared to accept, and indeed we would welcome, general agreement on a 12-mile outer limit for the territorial sea and a 200- mile outer limit for the economic zone, provided it is part of an acceptable comprehensive package including a satisfactory regime within and beyond the economic zone and provision for unimpeded transit of straits used for international navigation.” Quoted in Hugo Cominos and Michael R. Molitor, 'Progressive Development of International Law and the Package Deal', The American Journal of International Law, 79:4 (1985), pp 871-890, p 875. See also Sanger Ordering the Oceans, p 37.

57 might have been subordinated to concerns over the security of land at the time, as Steinberg has ably concluded, this conception of security is socially-conditioned. It depicts maritime zones as comparatively unimportant and simply a concession. But, this says nothing on its own terms about how legitimate behaviour towards them was viewed. This takes on greater significance given that, as we will see in chapter two, a desecuritised ocean is not an unbroken historical norm. On the face of it, it is unclear why states should not have viewed the ocean as a strategic space over which the maximisation of control was deemed an important security issue, particularly after the oil crises of the 1970s when concerns about energy security became a major policy driver, as they are today. Realists cannot explain these patterns because they take for granted normative context and dismiss the importance of changes other than those relating to the distribution of power in the international system. In short, other explanatory variables are needed to account for the changing nature of states' behaviour towards maritime space.

Explaining States' Territorial Practices at Sea: Interests and Material Capacity

Steinberg has concluded that the shift from a mercantilist to a capitalist system was associated with the construction of the ocean as a great void, useful primarily for transport and home to inexhaustible natural resources.143 This interest in retaining the ocean as a friction free surface, he argued, underpinned the desire for peace within it and that condition continues to this day. Consequently, economic interests may provide an explanation for the changing shape of the politics of maritime space that states' security needs and the distribution of power cannot. Indeed, the imperatives of the international capitalist economic order might just as well predict the stability of the maritime property rights order that we witness in the contemporary era as well as the lack of wars over marine space in the freedom of the seas era.

However, the desire to retain the oceans as a friction free transport surface for the purposes of conducting international trade would also predict a strongly-stated norm forbidding conquest. It could be argued that the interest was so widely shared that such a standard was taken for granted, but the idea that the militarization of maritime space was unthinkable for reasons of economic interests is belied by provisions in

143 Steinberg Social Construction.

58 UNCLOS on maintaining the high seas for peaceful activities and language on the peaceful settlement of disputes.144 In short, conflict at sea is neither impossible, nor by any means historically unprecedented, and

UNCLOS recognizes this while remaining silent on the illegitimacy of conquest. This conclusion partly undermines a set of other purported explanations for the way states behave towards maritime space.

Klein and Brilmayer have argued that the shape and stability of the law of the sea jurisdictional order can be explained by the combination of the difficulty of engaging in conquest at sea and the need for marketable title to the resources there.145 These conditions, they suggest, explain why states opted for an order based on legal principles, rather than force and effective occupation. They also credit them with the institutionalisation of strong dispute resolution mechanisms in the law of the sea convention. On the face of it, the contention that marketability of title is a key factor in the rules and compliance with them surely relies on the expectation that other countries would disapprove of possession of resources from the sea obtained by force. This concomitantly assumes the illegitimacy of maritime conquest as a meaningful norm.

But Klein and Brilmayer dismiss an explanation rooted in historical time and the evolution of ideas about legitimate behaviour. Instead, they reach their conclusions with a comparison to the legal order on land, which they claim is primarily still based on coercion and physical control. Clearly, this conclusion is contrary to that of Zacher and indeed Jackson and Rosberg146 who emphasise that borders have become thought of as inviolable regardless of how effective a state’s control is within them. Therefore, the conclusion based on this comparison conceivably fails in so far as boundaries on both land and sea appear to be stable today.

Klein and Brilmayer place a great deal of further emphasis on the difficulty of conquest at sea, but many scholars have pointed to the difficulties of annexing land territory as well.147 Others have implicitly assumed that states engaging in expansionism would be opposed by the international community, reinforcing the notion that such behaviour would breach a major international prohibition.148 Furthermore, if states have

144 See UNCLOS, Part XV. 145 Brilmayer and Klein 'Land and Sea'. 146 Robert H. Jackson and Carl G. Rosberg, 'Why Africa's Weak States Persist: The Empirical and the Juridical in Statehood', World Politics, 35:1 (1982), pp 1-24. 147 Fazal State Death, p 63. 148 M. Taylor Fravel, 'International Relations Theory and China's Rise: Assessing China's Potential for Territorial

59 indeed not gained the tools to conquer maritime spaces, this may be the result of a lack of desire to engage in such a policy as a result of an ideational disposition rendering it illegitimate. 149 Besides, although the ocean may be harder to effectively occupy, this surely benefits neither a would-be conqueror nor defender any more than the other. If powerful states were so inclined, it seems hard to imagine that they could not gain control of large portions of ocean space, especially given developments in satellite, drone and other area-denial capabilities. Further, the lack of a population to pacify might be thought to make conquest rather easier at sea than on land.

To cite an example, the Cod Wars were a series of confrontations between Iceland and the UK in the

1950s and again in the 1970s over fishing rights in the waters off of Iceland. 150 The United Kingdom sought to preserve the traditional high seas fishing rights in the area while Iceland claimed an exclusive right to the resources off its coasts at a distance first of 12 nautical miles, then 50 and finally 200 nautical miles. The series of clashes involved Icelandic gunboats asserting jurisdiction and chasing British trawlers out of

Icelandic-claimed waters, confiscating their catches and cutting their fishing nets. Overwhelming numbers of

Royal Naval vessels were sent to protect the British trawlers against Iceland's tiny coast guard during each conflict. Though no shots were fired and no acts of conquest engaged in, the Cod Wars were a kind of territorial conflict at sea. On this basis, it might be concluded that dissatisfied states could seek to expand at sea regardless of the difficulties involved.

However, another set of authors suggest that states might have little reason to be dissatisfied with the law of the sea property rights order. Analysts have argued that the law of the sea convention was the product of a successful, positive-sum compromise. Moreover, as Posner and Sykes explain, the contrasting material costs of conquest would be prohibitive and the law of the sea order is economically rational. 151 However,

Posner and Sykes acknowledge that not every aspect of the ocean order has an efficiency justification: in particular, it is not economically rational for all states to be entitled to the same extent of maritime

Expansion', International Studies Review, 12:4 (2010), pp. 505-532. 149 Price makes a similar argument in relationship to the acquisition of chemical weapons. Richard Price, 'A Genealogy of the Chemical Weapons Taboo', International Organization, 49:1 (1995), pp 73-103. 150 See Gunther Hellmann and Benjamin Herborth, 'Fishing in the Mild West: Democratic Peace and Militarized Interstate Disputes in the Transatlantic Community', Review of International Studies 34:3 (2008) pp 481-506. 151 See discussion above, p 14.

60 jurisdiction given their differing capacities to police them. Explanations based on states' material interests take for granted the normative context that structures states' preferences. To be sure, the law of the sea property rights order was crafted within a normative context that made some choices – including equal extents of jurisdiction for all coastal states – appear natural and just. Materialist explanations also cannot accommodate changes in norms and the associated preferences of states. As chapter two illustrates, contemporary norms have not always existed. Therefore, the argument that the maritime order is stable because it is in states' interests at least presumes a normative argument. Consequently, additional variables are necessary to account for the shape of contemporary international order in the oceans.

Additionally, there are good reasons not simply to settle for an account of ocean stability based entirely on self-interest. If interests were merely based on material considerations, they would be apt to change and, when they do, a given norm is rendered vulnerable to non-compliance. States may comply with the law not only because it is in their interests, but also because they deem it rightful. As Hurd says, when they internalise such standards of behaviour, states are ontologically inclined towards compliance, rather than defection from those standards, and this surely provides the basis for a stronger, potentially more enduring and sticky order.152 The remaining questions, therefore, would seem to be: what norms regulate states' behaviour in the oceans and from where did they emerge?

Explaining States' Territorial Practices at Sea: Ideas and Appropriateness

The fundamental norm in the law of the sea is that title to offshore zones results from sovereignty over land.

It is clear, therefore, that a state cannot legally acquire maritime jurisdiction off the coasts of another without first legally acquiring its coastline. But this principle is positive in character – it describes how title to maritime space is generated not the means by which getting it is prohibited. This suggests there was a reason for the negotiators of UNCLOS not to emphasise the inviolability of maritime jurisdictions in the same way as they do those on land. Indeed, typically, norms are stated explicitly in legal instruments. The difference between the legal order of the sea and the legal order on land might explain why an identically formulated 152 Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council, (Princeton: Princeton University Press, 2008).

61 norm to that in Article 2(4) of the UN Charter is not present in UNCLOS, but it cannot account for the absence of a standard similar to Article 2(4). However, the distinct legal order of the oceans reflects its different material properties to the land and the alternative uses to which it is put. Perhaps most significantly, it also reflects and reinforces the different social construction of the ocean.

As Steinberg argued, the ocean is principally regarded as a space that resists development and is the antithesis of land. Other analyses have suggested that the ocean is a less salient space than land partly because of the absence of intangible features such as discourses of associated national history that make it a space to fight over. These perspectives provide two ideational reasons for the lack of a strongly stated norm similar to territorial integrity for offshore zones: states might have lacked any appetite to conquer these areas because they are not symbolically valuable like land, or because of the concept of the ocean as inhospitable and hard to conquer. Indeed, the absence of an explicit statement of a norm similar to territorial integrity in legal documents relating to the sea might suggest that such a standard was, therefore, simply not conceptualized. This view is consistent with the fact that even as the possibility of conquest at sea has become more real as global oil supplies run short, an explicit standard outlawing it has not been written into law. In other words, states might simply have regarded a strong norm of territorial integrity to be unnecessary in relationship to maritime space. The sea is simply so different to the land that the idea of states conquering maritime spaces would be absurd.

Some scholars have more closely equated the land and sea, especially in the current era. For Booth, the terminological problem of referring to the ocean spaces under national control as “territory” is unimportant: he suggests that “although international lawyers might quibble with the word because of its 'dry land' connotations, or its connotation with the specific concept of the 'territorial sea', the use of the word can be justified in political terms.”153 He predicted that the UN Convention on the Law of the Sea would blur the boundaries between land and ocean, leading nations to feel protective and sensitive about their maritime spaces in a process he referred to as the spread of “psycho-legal boundaries”.154

Steinberg too foresaw the possibility that the great void idealisation of ocean space might also 153 Booth, Law, Force and Diplomacy, p 40. 154 Booth, Law, Force and Diplomacy, p 45.

62 decline in prominence. With the discovery of recoverable resources off shore and the construction of a regime for their governance, he sees a growing contradiction between the great void idealisation and the construction of the ocean as a space for fixed investment.155 In a manner similar to Booth's construction of psycho-legal boundaries at sea, it is possible that the oceans will be viewed in ever more territorial-like terms, though Steinberg is non-committal about how the contradiction will ultimately work itself out. In particular, the impact on the geopolitical discourse at sea is unclear: the ocean might continue to be constructed not as the object of security, or it might grow ever more into a place over which peoples and states feel sensitive and possessive as Booth suggests.

The notion that land and sea are not so different after all provides another potential explanation for the silence in UNCLOS on the illegitimacy of conquest at sea. This lack of conceptualization might have reflected, not the absence of a norm proscribing conquest for maritime space, but its deep internalization by international society. The strongest norms, after all, go without saying. To be sure, the problems associated with extrapolating the norm of territorial integrity from land to sea can be overcome by recognizing that the two spaces need not be identical for the norm – or one very similar to it – to exist. In short, the question is not whether the land and the sea are the same spaces, for that would make this whole analysis unnecessary; rather, the issue is whether land and sea are similar and the degree to which conceptions of legitimate political behavior which relate to international society's experience of the land condition practices at sea despite any differences between those two spaces.

Thus, it might be the case that the ocean was understood as a similar space to land in terms, at least, of the security challenges present there. The sanctity of maritime boundaries might have been assumed logically to have applied as a natural out-growth of the territorial integrity norm on land. An origin such as this might lead us to expect that a concept like territorial integrity would not have actively been discussed with regard to the sea either, but that the ocean was framed as being similar to land and for behaviour there to have been conditioned by the historical experience with and standards of legitimate behaviour relating to land. Such a basis would also intuitively signal a much stronger active prohibition relating to the alteration of

155 Steinberg Social Construction, p 172.

63 maritime boundaries; for there would be nothing to prevent a de-securitised space becoming more securitised in the future and unrestrained territorial conflict might result from this process.

To recapitulate, the assumption of territorial integrity at sea might have been based on the de- securitisation of ocean space. This status results from its lack of symbolic value and the concept of its being hard to conquer and develop. This explanation, naturally, assumes that the ocean was constructed as a wholly different space to land. However, a second explanation might be that the ocean was viewed as rather more similar to land space, particularly in terms of the security concerns relevant to it. As a consequence, the inviolability of maritime boundaries might also have been taken for granted, but because this standard naturally grew out of the development of territorial integrity and the delegitimisation of conquest on land. In other words, the historical experience relating to land and the norms that regulate it condition the practices of states at sea.

However, this still leaves the related question of the practical application of a norm of territorial integrity to ocean space. Though the state is perhaps penetrated by outside forces to an unprecedented degree today, it is clear that outside military forces most certainly cannot legitimately enter the territory of a state without its consent, or as part of an act of self defence, or without the authorisation from the UN Security

Council. On the other hand, even foreign naval ships may travel freely in the maritime jurisdictions of any state and engage in battles beyond 12 nautical miles from shore. However, the main focus of this analysis – and indeed of the concept of territorial integrity itself – relates to the practice and legitimacy of conquest.

Conquest involves the forceful acquisition of the territory of one state by another. At sea, this would equate to the violent usurpation of a coastal state's sovereign rights in its maritime zones. In short, while a military force may legally cross maritime boundaries, it could not do so without breaking an injunction preventing maritime conquest if the intention was to revise those boundaries and acquire the resources under the legitimate jurisdiction of another state.

In the following analysis of the three twentieth century law of the sea conferences I find evidence that a renewal of the legitimacy of conquest was never even conceptualized by decision-makers as a possibility for marine space. Yet the ocean was treated very differently and, indeed, instrumentally in contrast

64 to the social value accorded to land. This might suggest the ocean was never considered to be a possible realm for conquest to occur because of its distinction from land and, particularly, its lesser salience. This was manifestly not the case. To be sure, the ocean was recognized as a highly politicized realm over which states might end up fighting. States constructed the marine property rights order precisely to forestall the possibility of the oceans becoming the site of the territorial conflicts that plagued international society throughout history.

As the maritime order was being constructed, the land was continually referred to as the “other”, which provided a historical experience not to be emulated. In this sense, the ocean was at once distinguished from the land, whilst being likened to it. Though the historical experience with land was eschewed, the contemporary reality of states existing within secure borders was regarded as a desirable model to emulate at sea. This understanding was not actively contested by any state in the negotiations. Moreover, it was in stark contrast to historical practices during the last period of major maritime sovereignty claims in which conquest was legitimate and states claimed what they felt they could, regularly causing disputes and conflict.

However, stable maritime boundaries and the illegitimacy of conquest and territorial aggrandisement were understood as being contingent on a legitimate marine property rights order. This legitimacy was provided in part by deeper constitutional norms in international society that were similarly not openly questioned in the process that led to the construction of the marine property rights order in the latter half of the twentieth century. They provided a deeply taken-for-granted set of standards which shaped the consensus that structured the hard bargaining that took place in the law of the sea conferences. These standards provide a similar ethical underpinning to the illegitimacy of maritime conquest that self-determination does on land.

They also result from the same land-based normative consensus that views some spaces as belonging legitimately and naturally to one state, with others not being subject to its concern and ambition.

Although standards of appropriate behavior were not the only variables explaining the outcome of the allocation of maritime space and the contemporary stability of that allocation, a normative explanation is at least necessary to provide a full understanding of historical and modern trends in the oceans. Explanations for the stability of the ocean order based only on states' conceptions of their material and security interests

65 might indicate a comparatively weak order that is prone to revision once this mix of interest shifts, or states with different interests obtain the material capacity necessary to impose them. In contrast, the association between the maritime order and robust norms relating to the land may ensure a stickier order and associated peace and stability at sea.

Methodology and Case Studies

The major studies of the changing legitimacy of land-based territorial aggrandisement use standard methods to demonstrate the effect of international norms. Zacher's study utilises an analysis of changing practices relating to territorial conflict since the purported birth of the states system.156 He demonstrates the existence and effect of the norm of territorial integrity by tracing the statistical decline in territorial conflict over the past several centuries. He showed that this decline in territorial conflict co-varied with changes in views about the legitimate ends to which force should be put. In so doing, he draws conclusions about the origins of the norm and its progress in international society.

Sharon Korman takes a similar approach, although her study does not use statistical methods.157 She assesses a number of cases throughout history to demonstrate the changing reactions that have characterised particular episodes of the forceful acquisition of territory. Through an examination of the discourses employed by both foreign actors and would-be conquerors, she demonstrates how conquest was once viewed as an unproblematic institution, but has come to be viewed as deviant and taboo. Consequently, would-be conquerors have been forced to seek to justify their actions in ways that are consistent with the norm. Fazal also examines a number of cases of contemporary interventions and demonstrates how actors engaged in

“taboo talk” which suggests that the possibility of engaging in conquest was deemed by them to be inappropriate.158 Both Zacher and Korman also demonstrate how the international community has been unwilling to sanction cases of conquest – and in some instances has even reversed them – as the norm of territorial integrity became institutionalised in international society.

156 Zacher, 'The Territorial Integrity Norm'. 157 Sharon Korman, The Right of Conquest: the Acquisition of Territory by Force in International Law and Practice, (Oxford: Clarendon Press, 1996). 158 Fazal, State Death.

66 Zacher, Fazal and Korman also examine and dismiss a number of alternative explanations for the outcomes for which they attempt to account. For example, Fazal demonstrates how considerations such as the difficulty and cost of forceful territorial aggrandisement in an age of nationalism could not explain the non-occurrence of conquest in her cases. Zacher, on the other hand, does not deny that there are several trends in contemporary international society that point in the same direction and that the decline of conquest is, therefore, somewhat over-determined. He is, however, able to demonstrate that the norm of territorial integrity has an effect independently of these variables and, therefore, that it has influenced international practices. For example, Zacher indicates that other purported explanations – such as that territory has become less valuable – can only account for a decline of conquest, not the reversal and disapproval of instances of it.

The following study adopts elements of all these methodological approaches, but not without complication. A longitudinal analysis of changing state practices at sea is undertaken, but it is not possible to show a neat decline in conquest over the last several centuries because the enclosure of ocean space was only the norm in the early modern period. During the late modern period, at the same time as the high point of conquest on land, the ocean entered an era in which the doctrine of the freedom of the seas began to take hold. Although there was much contestation over ocean space in the early modern period, this was also the time at which mercantilist economic theories were in the ascendant. The freedom of the seas era, on the other hand, arrived as capitalism became dominant along with the understanding that international trade was beneficial and not a zero-sum endeavour. The association of the freedom of the seas with the depoliticisation and de-securitisation of marine space could be accounted for by this development and, despite the surface problems with this explanation noted above, the continuing lack of conquest at sea explained by the capitalist economic system. This complicates the analysis and introduces a pressing problem of potential multi- collinearity.

Indeed, in addition to the covariation of states' maritime practices with dominant economic ideas, the contemporary marine property rights order was created just as a strong norm of territorial integrity was becoming rooted in the international normative system. Consequently, it is difficult to explain changes in

67 practices of conquest relating to marine space because a system in which there were no boundaries was replaced with one in which there were, but at a time when we would expect there to be no conquest for more than one reason. In other words, showing the covariation between maritime practices and the changing legitimacy of conquest is not as straightforward in this study as it was for Zacher and Korman. Added to this, is the difficulty of showing the illegitimacy of conquest at sea when there have been no episodes of it. While

Zacher and Korman are able to trace the negative reaction to contemporary cases of attempted conquest and contrast them with the positive or indifferent reactions to historical cases, the following analysis cannot adopt this approach in its entirety.

Thus, this study assesses practices during the last period of ocean enclosure in the early modern period and shows that conflict and contestation over maritime jurisdiction was the norm in this period. After assessing the freedom of the seas era, it contrasts the characteristics of marine politics of the early modern period with the very different practices relating to maritime jurisdictions today. But, this assessment is only suggestive of an explanation for the reasons to which I have just alluded. Lacking suitable cases of conquest in the contemporary era, I instead turn to an assessment of the process of the construction of the marine property rights order in the twentieth century and the discourses and thinking that characterised it. I have already shown how a number of competing explanations for the stability of maritime boundaries are inaccurate or under-specified, but, by tracing the discourses that were employed, how the ocean was conceptualised and how ideas were drawn on and related to one another, it is possible to show the influence that thinking about the land had on expectations regarding practices in the oceans. Perhaps most important, I assess what was not said as well as what was to gauge what standards of behaviour relating to marine space were taken-for-granted.

Assessing what was taken-for-granted in the efforts to construct the marine property rights order is also essential for understanding which social understandings underpin the territorial integrity norm. As discussed above, Zacher and Holsti described how thinking about territory and the territorial order itself catalysed the development of territorial integrity and these constitutive norms can be understood as continuing to support the stability of national jurisdictions. Though self-determination cannot give normative

68 significance to marine space in the same way as it does the land, this study finds that the making of the territorial-like order at sea was not conducted in a normative vacuum.

Though many analyses examine the bargaining dynamics of the multilateral conferences that led to the contemporary property rights order at sea, none examines the consensus that structured the bargaining environment. The constitution of the ocean and how this affected the construction of the marine property rights order is, therefore, also traced. This assessment is achieved by highlighting broad areas of consensus about how that order should be shaped and assessing the ideas that were drawn on to justify the way maritime jurisdictions were allocated. The stability of this fundamental consensus is traced from the very first contemporary efforts to enclose areas of maritime space to the denouement of the process towards the end of the twentieth century. By showing that this consensus persisted despite shifts in the distribution of power, I demonstrate that the ideas were widely internalised.

Although an examination of the law-making process can demonstrate how states thought about legitimate behaviour at sea in the abstract, it is plausible that their perspectives – including their commitment to the law – might change in real world cases. Consequently, I examine two cases of contemporary maritime regions: the South China Sea and the Arctic Ocean. Both regions are rich in marine resources. Both also contain asymmetrically powerful actors that would, as a result, have incentives to forcefully expand their maritime entitlements. Therefore, they are hard cases for the theory that a norm proscribing conquest regulates states' offshore behaviour. Moreover, both regions contain a set of disputes over maritime space.

Disputes grounded in legal arguments provide evidence that international law is an important legitimator of states' maritime policies. They also suggest that states accept the inviolability of legally established maritime boundaries. To the degree that the actors in the South China Sea and Arctic Ocean justify their claims in legal terms, they reinforce the notion that legally established maritime boundaries are inviolable. Moreover, that both cases also featured episodes in which individual states were seen to potentially intend to engage in illegal expansionism enables an assessment of the international pressure they came under to comply with the norm proscribing conquest at sea. For breaches of strong norms entail efforts to reinforce them and, as a consequence, are useful for demonstrating the existence of the norm. Therefore, perceived and anticipated

69 breaches are useful in a situation such as this where all out non-compliance has not taken place.

Data

Secondary historical works have been relied on for the examination of maritime politics prior to the contemporary era in which the property rights order at sea was constructed. In common with works in international relations, few historical accounts of the periods of interest concentrate solely on maritime politics, focusing largely on the dynamics of land-based events. There are, however, some notable exceptions. Detailed studies of the claims made by Great Britain and, prior to that, England to the sovereignty of the British Seas as well as the contests between the Scandinavian powers over the dominion of the Baltic do exist. Thomas Wemyss Fulton's The Sovereignty of the Sea159 and Charles Hill's The Danish

Sound Dues and the Command of the Baltic160 have, therefore, been drawn on heavily. A third volume edited by Daniel Finamore – Maritime History as World History161 – also contains useful work that is more explicitly focused on maritime space alone than many, as do two volumes – Tide of Empires162 – by Peter

Padfield. These have been used for data relating both to maritime politics within Europe and beyond. They have been supplemented by a number of other works, which, although not solely concerned with maritime history, nevertheless contain important references to it. Where possible, these historical works have been used to corroborate one another to reduce the potential for inaccuracies and they have mostly been used for the purposes of generating factual data, rather than for their analyses.

The in-depth studies of the three law of the sea conferences have also been given context by a number of secondary works on their dynamics, but the chapters tracing the development of the marine property rights order primarily utilise the several volumes of United Nations' Records of the three major Law

159 Thomas Fulton, The Sovereignty of the Sea; an Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters: With Special Reference to the Rights of Fishing and the Naval Salute, (Edinburgh: W. Blackwood, 1911). 160 Charles Hill, The Danish Sound Dues and the Command of the Baltic: A Study of International Relations, (Durham NC: Duke University Press, 1926). 161 Daniel Finamore (ed), Maritime History as World History, (Gainesville: University Press of Florida, 2004). 162 Peter Padfield, Tide of Empires, 1654-1763: Decisive Naval Campaigns in the Rise of the West, (London: Routledge, 1979); Peter Padfield, Tide of Empires, 1481-1654: Decisive Naval Campaigns in the Rise of the West, (London: Routledge, 1979).

70 of the Sea Conferences. Though for the third conference, in particular, many of the meetings in which key decisions were taken have no public records, the plenary meetings and reports of chairmen generally provide a wealth of data: they contain information on the general lines of consensus between the participants and how they constructed ocean space and thought about its security. Other primary sources, such as UN General

Assembly Resolutions and treaties themselves have also been drawn on where relevant as have judgments by international courts and tribunals.

For the contemporary case studies, analyses by international lawyers of the legal justifications offered by states have been assessed. Although there is frequently some disagreement by individual commentators on the merits of each case, these areas of disagreement tend to be discreet and are highlighted as honestly as possible. Media, scholarly and civil society reports of policies have also been utilised and, again, where possible, corroborated with more than one source. Direct quotations from policymakers have also been made use of in order to gain a first-hand sense of how behaviour at sea today is interpreted and justified.

71 CHAPTER 2

TERRITORIALITY AND SECURITY IN THE OCEANS: PAST AND PRESENT

Whosoever commands the sea commands the trade; whosoever commands the trade of the world commands the riches of the world, and consequently the world itself.

- Sir Walter Raleigh

Many scholars have pointed to the key role violence played in the formation of nation-states. A competitive world in which states might be destroyed or dismembered is at the heart of Hobbesian realist theories of international relations.163 Similarly, for Charles Tilly, the state made war and war made the state as an institutional form.164 Fazal has also argued that certain kinds of states were apt to be conquered historically.165

Indeed, this vision of international politics in which territorial revisionism is a frequent occurrence seems to account relatively accurately for the patterned behaviour of international society throughout much of the history of the states system. Though this pattern has clearly declined in the last several decades, the dominant historical mode of acquiring territory was certainly through violence and coercion and this has a continued influence on the allocation of land today. Korman comments that the “existing frontiers of most states, when they are traced back far enough, will be seen in most cases to be based at least in part upon territorial acquisitions which have been made in the course of various military struggles.” 166 Though the justice of this situation is questionable, international law for long reflected the dominant role of the use of force in international politics and the boundaries we have today are the product of this history.

Though the contemporary ocean property rights regime was constructed quite differently to the

163 Morgenthau, Politics Among Nations. 164 Charles Tilly, The Formation of National States in Western Europe, (Princeton: Princeton University Press, 1975). cf. Spruyt, Hendrik Spruyt, The Sovereign State and its Competitors, (Princeton: Princeton University Press, 1994). 165 Fazal State Death. 166 Korman, The Right of Conquest, p 26.

72 territorial order on land, the more distant history of practices on land and at sea are not so divergent. The following analysis assesses the practices of states with regard to marine space throughout recorded history. It begins with a brief examination of the understanding of the sea by ancient powers and then assesses at length the practices of states in early modern Europe during the period in which they made extensive claims to offshore jurisdiction. I dwell particularly on two cases: those of England and also the Baltic States. I also examine the practices of European states in the non-European world, concentrating primarily on the Indian

Ocean and its peripheral seas. I find that, historically, states' jurisdictions at sea were often maintained by coercion and that they were regularly forcefully challenged. They were also ill-defined, a source of disputes and conflict and they expanded, contracted and generally varied in shape – much like they did on land.

Finally, I trace the evolution and impact of the doctrine of the freedom of the seas and I describe the process that brought about the institutionalisation of the current marine property rights order. The practices that seem to have been adopted with regard to that order today are very different to those of days gone by.

The Oceans in the Ancient World

The key trading power in the Ancient Mediterranean before Rome came to prominence was the island of

Rhodes. The Rhodians protected shipping from piracy and codified a set of laws in the Rhodian Code, which were widely accepted among other Mediterranean powers.167 This code regulated partnership, joint adventures, charter parties and bills of lading as well as the conduct of passengers on ships and the liability of crew for cases of negligence and dereliction of duty.168 Kraska has stated that it amounted to an early version of flag state jurisdiction.169 The Rhodian Code went on to influence the subsequent development of medieval maritime codes, but its influence did not extend beyond the thirteenth century.170 Asian ancient practice also exhibited an emphasis on free use of the seas combined with the regulation of shipping, 171 but it is the understanding of maritime space and its regulation by Ancient Rome which has been credited with

167 Ram Prakash Anand, Origin and Development of the Law of the Sea: History of International Law Revisited, (The Hague; Boston: Martinus Nijhoff, 1982), p 11. 168 Anand, Origin and Development, p 11. 169 Kraska Maritime Power, p 34. 170 Anand Origin and Development, p 12. 171 Steinberg Social Construction and Anand Origin and Development, chapter 2.

73 having the most fundamental influence on the contemporary law of the sea.

Rome was the dominant power of the Mediterranean for several centuries but it did not claim exclusive sovereignty over maritime space. At the peak of their power, the Romans famously referred to the

Mediterranean as “Mare Nostrum” – our sea.172 Though it did not purport to incorporate the sea as part of its territory, Ancient Rome did exercise significant social control of marine space, which was labelled imperium, in contrast to the dominium that was exercised over land. This authority in the ocean was manifested in Roman suppression of piracy in the Mediterranean, which effectively cleared the area of pirates from 36BC until the third century AD. Indeed, Rome was the dominant power in the Mediterranean, the North Sea coasts of Europe and parts of the Atlantic until the fifth century AD.173 This exercise of power enabled trade to flourish in the region,174 the maritime spaces of which were understood to be free and open for the use of all peoples in a space outside of the Roman state.175 This legal status of the oceans in ancient

Roman thinking served as the foundation for the later doctrine of the freedom of the seas, famously promoted by the Dutch intellectual Hugo Grotius. However, in the intervening period, the norm was not for the seas to be free, but rather for states to make exclusive claims to regulate maritime affairs. This period of mare clausum reached a high point in the medieval and early modern world.

The Medieval and Early Modern Period

Throughout the Middle Ages, claims to sovereignty over marine space were commonplace. Claims to power over bays, straits and the seas around Europe in the thirteenth century led to rivalry and conflict. 176

Theutenberg has noted that ancient texts proclaimed the Norwegian King's sovereignty over the seas off

172 For an overview of how this concept was understood, see Wolfgang Graf Vitzthum, 'From the Rhodian Sea Law to UNCLOS III', in Susan Rolston (ed) Proceedings of Pacem in Maribus (2002), p 70, available at: {http://www.gisig.it/ecoimagine/shortcut/docs/Pacem_In_maribus_2000.pdf#page=70} accessed 10 July 2013. 173 Richard W. Unger, 'Power and Domination: Europe and the Sea in the Middle Ages and the Renaissance', in Daniel Finamore (ed), Maritime History as World History, p 140. 174 Rickman, Geoffrey, 'Mare Nostrum', Rice E. E. Rice (ed), The Sea and History, (Stroud, Glos.: Sutton Publishers, 1996). 175 Philip E. Steinberg, 'Lines of Division, Lines of Connection: Stewardship in the World Ocean', The Geographical Review, 89:1 (1999), pp 254-264, p 259. 176 Unger, 'Power and Domination', p 139.

74 Norway's coast to the median line with the coasts opposite.177 The Kings of England referred to themselves as roys des mer in the fourteenth century.178 These early claims to state regulatory power in the ocean were closely related to bringing order to the oceans, which were regularly plagued by pirates. 179 The Byzantine

Empire, for example, took seriously its role of providing security in the Mediterranean and imposed taxes for the purpose.180 The concept of protectio also emerged and required sovereigns to protect foreign shipping in their waters. However, jurisdictional claims were ill-defined and overlapped. For example, the Plantagenet

Kings of England claimed jurisdiction and pacification rights, but the suppression of piracy was also undertaken by France in the same seas.181 This competition and rivalry led to the development of navies and it was this new power that created the idea of more extensively dominating the seas.182

Fulton has concluded that before the great debate about ocean enclosure and free seas between

Selden and Grotius at the beginning of the seventeenth century, sovereignty over the seas was the norm. He comments:

The writers who touched upon the question in the previous century took it for granted that the seas were capable of appropriation, and that they were almost wholly under the dominion of one Power or another. It is true that now and again a slender voice was raised in protest, on abstract legal grounds... the protests of the few jurists alluded to were too feeble to have practical effect on the course of events or on the prevalent opinion. 183

The idea of the closed sea, subject to national territorial jurisdiction was translated into political practices both in Europe and beyond for several centuries. In the medieval and early modern periods, the Scandinavian powers made extensive claims to the dominion of the Baltic Sea and to the Northern Seas off the coasts of

Norway, Svalbard and Greenland; at various points, England claimed sovereignty over the British Seas; and

Venice made a long-standing claim to jurisdiction over the Adriatic. Mancke explains that “expanding

European powers defined the world's oceans, and not just territorial waters, as political space over which

177 Bo Johnson Theutenberg, 'Mare Clausum et Mare Liberum', Arctic, 37:4 (1984), pp 481-492, p 481. 178 Unger, 'Power and Domination', p 145. 179 Unger, 'Power and Domination', p 141. 180 Unger, 'Power and Domination', p 141. 181 Thomas Fulton, The Sovereignty of the Sea, p 31. 182 Unger, 'Power and Domination', p 145. 183 Fulton, The Sovereignty of the Sea, p 338. For a run-down of the various writers on this issue see O'Connell, International Law of the Sea, pp 4-7

75 they attempted to exert their jurisdiction”184 and the Iberian states were among the first to make extensive claims to jurisdiction over distant seas beyond Europe. The competencies purported to be exercised in these claims related variously to resources, navigation and certain symbolic issues.

These extensive claims to maritime sovereignty in the medieval and early modern periods were a regular source of rivalry and conflict. Fulton comments that in most cases “the appropriation of the sea was effected by force and legalised afterwards, if legalised at all, and the disputes on the subject between different nations not infrequently led to sanguinary wars.”185 Indeed, the early modern period was one of enmity, conquest, shifting alliances and almost continual warfare in Europe; Holsti comments that “war was taken for granted; causes and consequences were not the object of study or speculation.”186 The appetite of

European monarchs for power, money and expansive jurisdiction did not spare the oceans as they were viewed as just another realm over which kings wished to exert their authority and from which they wished to extract wealth. The policies of the Kings of the Scandinavian countries in the Baltic and of the King of

England in the so-called British Seas illustrate the character of early modern contestation over ocean space within Europe; the former largely for the purpose of controlling and taxing trade, and the latter first for the control of fisheries and later the generation of national and international prestige and in order to break the maritime power of its rivals.

The Sovereignty of the British Seas

Fulton has shown that the British had not exercised jurisdiction over the so-called British Seas for a long and uninterrupted period in medieval times as had other European powers. Instead, the liberty of fishing had been recognised in numerous treaties, most notably the Intercursus Magnus of 1496 and the Tudor monarchs had enthusiastically promoted the concept of the freedom of the seas in their contests with the Danes over Arctic fisheries. Indeed, later English sovereignty claims in the seas around its territory were regularly contested and never accepted by its main rival in the region. The Dutch, whose republic was growing in power,

184 Elizabeth Mancke, 'Oceanic Space and the Creation of a Global International System, 1450-1800', in Daniel Finamore (ed), Maritime History as World History, (University Press of Florida, 2004), p 149. 185 Fulton, Sovereignty of the Sea, p 3. 186 Holsti, Peace and War, p 63.

76 influence and wealth, also sought to manage the claims of the Scandinavian powers to Dominium Maris

Baltici as well as those of Britain in the North Sea. For the Dutch dominance of trade required that they had unencumbered use of marine space and that they avoided costly wars.

Nevertheless, the Seventeenth Century was a period of intense rivalry between the Netherlands and

Great Britain: Jack Levy and Salvatore Ali have concluded that the issues over which this competition was waged included the Baltic trade, colonial competition outside Europe, who would conduct the finishing process on cloth and North Sea Fisheries.187 The fisheries matter was generated by exclusive English claims to the sovereignty of the so-called British Seas. As a concomitant of that policy, the Stuart Kings of England and their post-Civil War successors sought to impose requirements on Dutch fishermen to seek and pay for licences to fish in British-claimed waters. With sovereignty claims also came requirements for foreign shipping to “strike the flag,” a signal of homage to the authority of the monarch in whose waters vessels sailed.

The paying of homage to the flag of the sovereign of a given portion of maritime space was an old tradition. In 1201, King John issued an ordinance saying that any ship that refused to lower their top sails when asked by an English Admiral were to be considered enemies and seized, perhaps because they were assumed to be pirates.188 Flemish fishing vessels deferred to English ships in the 15th century and foreign ships saluted the ships of the King of England in the mid-sixteenth century as well. 189 In the 17th century, striking the flag, or the top sail, involved lowering the ensign or sails of the ship in the presence of the fleet or castle of the monarch in whose claimed waters a vessel sailed. It was taken as a personal affront and a challenge to the authority of the monarch if the ceremony was not performed and in the reign of Charles I it became a major international issue. Naturally, other powers, for reasons of prestige and also out of a desire to prevent claims of other competencies flowing from a recognition of such sovereignty, at times resisted the requirement for their ships to strike the flag. This was particularly the case for the Dutch in the face of the

187 Jack S. Levy and Salvatore Ali, 'From Commercial Competition to Strategic Rivalry to War: The Evolution of the Anglo-Dutch Rivalry, 1609-52', in Paul F. Diehl (ed), The Dynamics of Enduring Rivalries, (Chicago: University of Illinois Press, 1998), p 138. 188 Anand, Origin and Development, p 85. 189 Fulton, The Sovereignty of the Sea, p 117.

77 English conversion of the old tradition into a mark of sovereign authority.190 The refusal of a foreign vessel to strike often brought a forceful response, and seizure of goods, and it was – at least in part – over this issue that a number of conflicts were fought in the British Seas. Consequently, the striking of the flag contributed to the politicisation of the seas in combination with the ever-present issue of fisheries.

Indeed, as it rose to prominence in the sixteenth century, England became envious of the wealth and maritime prowess of the Dutch Republic, which owned more merchant shipping tonnage than the rest of

Atlantic Europe put together.191 This capacity was widely understood at the time to be the product of the

Netherlands' dominance of North Sea fisheries. By the mid-seventeenth century, fishing employed a large proportion of Dutchmen and, several times, English monarchs set up fisheries corporations in an attempt to compete with them, but these failed with each successive try. Consequently, another policy of choice for the

English monarch was to seek to levy tolls on Dutch fishermen within the so-called British Seas. This was done for the first time in the seventeenth century by order of James I in 1609. In a forerunner to some of the claims and justifications made by developing countries several centuries later, James I issued the following proclamation:

Where as we have been contented since our coming to the crown, to tolerate an indifferent and promiscuous kind of liberty to all our friends whatsoever, to fish within our streams, and upon any of our coasts of Great Britain, Ireland, and other adjacent islands, so far forth as the permission or use thereof might not redound to the impeachment of our prerogative royal, nor to the hurt and damage of our loving subjects, whose preservation and flourishing estate we hold ourself principally bound to advance before all worldly respects: so finding that our connivance therein hath not only given occasion to over great encroachments upon our regalities, or rather questioning for our right, but hath been a means of much daily wrongs to our own people that exercise the trade of fishing, as our subjects constrained to abandon their fishing... no person of what nation or quality soever, being not our natural born subject, be permitted to fish upon any of our coasts and seas, until they have orderly demanded and obtained licenses from us.192

The Dutch protested, citing the freedom of fisheries guaranteed by treaty and the lack of precedent for such action by the King of England. In 1616, action was taken to collect the monies for licenses, but the Dutch sent warships to prevent this from taking place again. A further effort by the British authorities in 1618 was unsuccessful because the fishing boats could not be located, despite the large numbers of Dutch warships

190 O'Connell, The International Law of the Sea, p 8. 191 Janzen, 'World-Embracing Sea', p 103 192 Quoted in Fulton, The Sovereignty of the Sea, p 148.

78 sent to protect them. However, the caution of the Dutch government, whose commerce relied on international stability, and international circumstances meant war did not result from these early British efforts to assert jurisdiction over fisheries in the North Sea.

James I died in 1625 and was succeeded by his son, Charles I, who made the “most extreme claims to dominion on the neighbouring seas that had ever been put forward by an English king.”193 Fulton comments: “It may be supposed that the splendour of the role attributed to the early kings of England as lords of the sea, would by itself appeal to the narrow imagination of one so deeply imbued as Charles was with a belief in the divine prerogative of kings.”194 Not only did he maintain the exclusive claims of his father to the fisheries around Britain, but he also forbade any conflict within his maritime dominion and demanded the ships of other nations show deference to the vessels of his Navy.

In the early 1630s, Charles again attempted to revive the flagging fishing industry by means of the formation of a fisheries corporation. Though few references to the sovereignty of the sea were made at first, they rapidly became more numerous and new proposals were made to tax the Dutch fishermen. In 1633, a regulation was drawn up that made a claim to the absolute dominion over the seas surrounding Britain. 195 To complement this renewed claim, Charles determined to construct a better equipped navy, which could be used to bring order to his maritime dominion and to protect free trade for his subjects and allies. 196 Charles also stubbornly stuck to the requirement that ships should strike their flags in the presence of his ships in deference to his authority. It became commonplace for this custom to be enforced right up to the French coast in the Channel even though Charles was no longer in possession of it. The Dutch, too, were expected to defer to the King's ships.197 In 1636, the ships of the Royal Navy attacked those of the French for refusing to strike in the English Channel.198 This led to retaliation by the French in the Mediterranean. The forceful assertion of authority over fisheries also took place: a powerful fleet set sail in 1635 to enforce the

193 Fulton, The Sovereignty of the Sea, p 209. 194 Fulton, The Sovereignty of the Sea, p 211. 195 Fulton, The Sovereignty of the Sea, p 251. 196 Fulton, The Sovereignty of the Sea, p 259. 197 Fulton, The Sovereignty of the Sea, p 279. 198 Fulton, The Sovereignty of the Sea, p 327.

79 requirement for fishermen to take licences.199 The Dutch attempted to avoid the English fleet and were eventually protected by their own men-of-war.

Ultimately, however, the English population grew tired of the taxes that were required to equip

Charles' fleet. Charles became consumed with domestic and international problems in the run up to the

English Civil War and his naval power weakened.200 Finally, his sovereignty of the seas “vanished forever”201 in the face of Dutch action in the Eighty Years' War against Spain. Ships of the Netherlands prevented

English ships from transporting Spanish goods and troops in the waters claimed by Charles. However, most catastrophically, a Dutch fleet engaged the Spaniards in the Battle of the Downs in 1639. Despite Charles' claim to exclude hostile actions in his waters, the Dutch destroyed the Spanish fleet in sight of the English coast, notwithstanding the protests of the English naval forces nearby. Charles' grandiose claims to the sovereignty of the British Seas were exposed as a hollow pretence and the emboldened Dutch thenceforward refused to pay for the right to fish in the North Sea.202 Moreover, the more powerful Dutch prevented any extensive claims or measures by the English King, and operated themselves in the British Seas without any restriction. Piracy and privateering rose and the Dutch and French navies grew in strength to combat them, which occasionally even led to their violating English ports in pursuit of these outlaws.

The Civil War ensured that British claims to the sovereignty of the Sea went into abeyance.

However, on the establishment of the Commonwealth, Parliament once again turned its attention to maritime issues. It was believed that a revitalised navy could bring prestige to the new regime, aid in its attraction of recognition from abroad and provide security for the country.203 Thus, in seeking to protect the

Commonwealth, the English authorities searched for and seized Dutch shipping to prevent them supporting royalists, who they favoured.204 Although William II, Prince of Orange, had wanted to invade England in support of the Royalists, he died before this plan could be realised and his policies were renounced by the

199 Fulton, The Sovereignty of the Sea, p 293. 200 Levy and Ali, 'From Commercial Competition', p 40. 201 Fulton, The Sovereignty of the Sea, p 245. 202 Fulton, The Sovereignty of the Sea, p 336. 203 Levy and Ali, 'From Commercial Competition', p 43. 204 Peter Padfield, Tide of Empires, 1481-1654, p 187 and S. Groenveld, 'The English Civil Wars as a Cause of the First Anglo-Dutch War, 1640-1652', The Historical Journal, 30:3 (1987), pp 541-566, p 549-551.

80 Dutch Assembly.205 This was followed by a surprising proposal on the part of the Commonwealth to a union between the two powers and shared sovereignty of the British Seas. This overture was rejected, however, and renewed tensions emerged between England and the Netherlands as Dutch commerce grew and English resentment boiled. In pursuit of security and prestige, the Commonwealth made some of the most extensive claims to sovereignty of the seas yet, even turning its attention to the Atlantic.206

The first of the Navigation Acts was passed in 1651, antagonising the Dutch considerably. It restricted the role of foreign shipping in the trade between England and its colonies. The English Admiral

Ayscue was dispatched to the Caribbean to prevent Dutch ships from trading with English possessions. His forces captured a number of Dutch vessels and set in train the events that would lead to the First Anglo-

Dutch War.207 For Kennedy, the war was one over “who should rule the waves and reap the commercial benefits of that privilege.”208 Ultimately, the old issue of the striking of the flag resurfaced and became the spark for the First Anglo-Dutch War. The Dutch Admiral Tromp refused to strike the flag and a skirmish was fought in the English Channel.209 Parliament said at the time that it “found too much cause to believe that the

Lords the States-General of the United Provinces have an intention by force to usurp the known rights of

England in the seas, to destroy the fleets that are, under God, their walls and bulwarks, and thereby expose this Commonwealth to invasion.”210 War was declared on 31 July 1652. Unlike the contests for dominion over the Baltic discussed below, the Anglo-Dutch War and the struggles prior to it took place solely at sea between the fleets of the two powers.

The English aim was to interrupt Dutch commerce by seizing the ships of its East India Company in the Channel and the Dutch responded by attempting to destroy the English fleet. 211 The war saw several reversals in fortunes: although ultimate victory was achieved by Britain, the Dutch were at times in control of the British Seas. Admiral Tromp is said even to have hoisted a broom as a sign that “he would sweep the

205 Levy and Ali, 'From Commercial Competition', p 43. 206 Groenveld, 'The English Civil Wars'. 207 Padfield, Tide of Empires, 1481-1654, p 187. 208 Kennedy, Rise and Fall, p 48. 209 Kennedy, Rise and Fall, p 189. 210 Fulton, The Sovereignty of the Sea, p 404. 211 Padfield, Tide of Empires, 1481-1654, p 191.

81 seas of all Englishmen”212 after he had achieved victory over the English fleet in the Channel. Moreover, both sides sought either to prevent fisheries by the other or tax their fishing vessels in their claimed waters.

Again, a union between the two countries was proposed by Cromwell at the conclusion of the war. If the Dutch refused, the English determined that “they must pay for liberty to fish on our coasts; render the usual submission at sea; give up their own waters and pay us for convoys, since we were the proper guardians of the British sea; they must not equip many great ships, without explaining their intentions and asking leave to pass through our seas.”213 Naturally, the Dutch refused such harsh terms and, unusually, did not plead the freedom of the seas.214 In the end, the Dutch were accorded freedom of fishing in the peace.

Stipulations that the dominion of the sea belonged to England were also removed, though the Dutch did commit for the first time in a treaty to strike their flag in certain areas. 215 They also agreed to compensate

English merchants for their losses in the Spice Islands and the Baltic and they were forced to accept the

Navigation Act which had been the main underlying cause of the conflict.216 The Dutch began to build up their fleet again shortly after the conclusion of the peace as the two powers descended towards new conflict.

The Second Anglo-Dutch War broke out for ostensibly the same reasons as the first: commercial jealousy was at the forefront, though complaints were also made by the English Parliament that the Dutch threatened the country's maritime sovereignty.217 Indeed, the Dutch had allied with the French to challenge

England's ocean claims.218 Dutch traders in the Far East did not abide by the terms of the peace with

England: they seized English ships and prevented them from navigating to an English factory at Porcatt, claiming that the ruler there had submitted himself to them.219 England, again, began attacking Dutch shipping in the Mediterranean and the Channel. Several battles took place in the war, including a devastating

English raid on the Dutch coast.220 However, English finances broke under the strain and the war concluded

212 Fulton, The Sovereignty of the Sea, p 408. 213 Quoted in Fulton, The Sovereignty of the Sea, p 418. 214 Fulton, The Sovereignty of the Sea, p 428. 215 Fulton, The Sovereignty of the Sea, p 436. 216 Padfield, Tide of Empires, 1481-1654, p 233. 217 Fulton, The Sovereignty of the Sea, p 458. 218 Fulton, The Sovereignty of the Sea, 452 219 Peter Padfield, Tide of Empires, 1654-1763, p 26. 220 Padfield, Tide of Empires, 1654-1763, pp 40-63.

82 after the English fleet was raided at Chatham. The ascendancy had this time passed to the Dutch, who insisted on the relaxation of the Navigation Acts and an end to English claims to exclusive rights over fisheries.221

The Third Anglo-Dutch War was fought for the personal ambitions of Charles II who, for reasons of profit, had secretly allied with France in order to aid its attacks on the Dutch. All he required was a pretext for aggression. The striking of the flag was again the issue chosen to spark the conflict as the king dispatched one of his yachts to the Dutch coast and required it to force a salute. The failure of this design led Charles to order the raiding of Dutch merchant ships. In justifying the war, the Dutch refusal to acknowledge the “right of England to the honour of the flag and the sovereignty of the sea” was cited as a key cause. Charles said

“the Right of the flag is so ancient that it was one of the first prerogatives of our royal predecessors, and ought to be the last from which this kingdom should ever depart.”222 With the French invasion of the

Netherlands, the Dutch were forced to seek peace with England. Charles complained of their attempt to undermine English maritime sovereignty across Europe. Nevertheless, the Dutch refused the English demands to recognise their sovereignty at sea, saying that, though they would strike their flag, it was only as a courtesy from a Republic to a monarchy. The Dutch also resisted the English claim of the extent of their sea. In the end, the Treaty described the striking of the flag only as a “testimony of respect” and an “honour” and the term “British Seas” was not included.223

With the accession of William of Orange to the English throne in 1689, the sovereignty of the British

Seas were not so enthusiastically pursued.224 The honour of the flag declined as a source of international disputes and English dominance of the seas meant sovereignty claims ceased to be of such importance. 225

Instead of defending mare clausum, the English joined with the Dutch in promoting the freedom of the seas and, at the high point of her power, became its most vocal adherent.226

221 Fulton, The Sovereignty of the Sea, p 465. 222 Fulton, The Sovereignty of the Sea, p 487. 223 Fulton, The Sovereignty of the Sea, p 515. 224 Fulton, The Sovereignty of the Sea, p 517. 225 Fulton, The Sovereignty of the Sea, p 523. 226 See Wilhelm G. Grewe, The Epochs of International Law, (Berlin: Walter De Gruyter and Co, 2000), p 273.

83 Dominium Maris Baltici

The Baltic was one of the major centres of European trade and was a fulcrum of the continent's international relations in the early modern period.227 The political map of the Baltic at the high point of its importance in

European affairs was complex. The dominant powers were Denmark, which then ruled Norway, and Sweden, but Poland, Brandenburg-Prussia, a collection of Hanseatic towns, and Russia all at various times controlled various ports and portions of coastline. The sea was also of central importance to powers outside of the region itself – most notably the Dutch and the British – but also France because of the trade routes within it that brought essential materials for ship-building and other industries.228 Of central strategic importance were the Danish Straits (or the Danish Sound), which the king of Denmark early on conceived as akin to a river flowing through his realm.229 One author has commented that “the Baltic was the heart and the Danish Sound the aorta”230 in the politics of the region. Although the right to the ownership of the whole Baltic Sea was in contest, controlling the sound was an important – if not the most important – factor in achieving that goal.

One of the central issues in the politics of the Baltic were the tolls levied on shipping that navigated parts of the sea. The most famous among these dues were those charged to ships transiting the Danish Straits, which were first levied in the fifteenth century. They brought substantial income to whoever collected them and accounted for the lion's share of all the taxes imposed on shipping in the Baltic.231 At the beginning of the struggle between Sweden and Denmark for Dominium Maris Baltici, it was the Danish King who controlled the Sound and imposed the toll. These so-called Sound Dues were a continual source of international tension throughout the late medieval and early modern period. Not only did the other great regional power, Sweden, seek to gain control of them, changes in the tolls also catalysed alliances and brought about threats of coercion from outside the region. In sum, they were a key factor among those that drove challenges to the Danish King's authority for the entire period.

Indeed, the King of Denmark proclaimed that it was his sovereign right to set the sound dues at

227 Jill Lisk, Struggle for Supremacy in the Baltic, 1600-1725, (New York: Hippocrene Books, 1976). 228 Lisk, Struggle for Supremacy. 229 Charles Hill, The Danish Sound Dues, p 14. 230 Hill, The Danish Sound Dues, p 31. 231 Hill, The Danish Sound Dues.

84 whatever level he desired, but this claim of jurisdiction regularly caused international opposition. The earliest medieval contestation for control of the Danish straits was between Denmark and the Hanseatic towns led by Lubeck, which at times controlled some strategic castles on the straits. These possessions were eventually handed back to Denmark, which thereby gained control of the waterway and exacted tolls on shipping. As had the Dutch when countering British sovereignty claims later, the Hanseatic towns tended to prefer diplomacy to war.232 However, the tolls intermittently led to conflict between Denmark along with

Sweden (then in a union) and the Hanseatic towns, which tried to maintain free passage through the straits to enable them to engage in trade. The union of the three Scandinavian countries that had first been established in 1397, and had been intermittent thereafter, finally disintegrated in 1523 and shortly afterwards Lubeck's power in the Baltic began to decline.233 Thereafter, the Swedes and the Danes, still in control of Norway, vied for control of the sea and the right to control and tax the trade within it.

Indeed, the Baltic Sea played a central role in the grandiose plans of the Swedish monarchs for dominance of trade routes stretching all the way to Persia and Central Asia. One of the central protagonists in

Swedish early modern expansionism, King Gustavus Adolphus said: “Sweden's welfare depends, under God, upon trade and maritime commerce.”234 His Chief Minister had visions of controlling all the trade in the

Baltic and building a fleet strong enough to impose Swedish control in the face of external opposition. 235

However, these policies would require the defeat of the Danes.

Swedish-Danish hostilities opened in earnest with the Northern Seven Years War (1563-70) which was fought because of the competing claims of the two kings in the wake of the dissolution of the union between them. Denmark was joined by Lubeck and the Polish-Lithuanian Union, which were eager to disrupt Swedish challenges to their trading privileges and augment their influence in the Baltic respectively.

The King of Sweden was eager to expand his influence in the Baltic and break Danish dominance there.

Indeed, the spark for the conflict was the refusal of Swedish ships to strike their flag in deference to Danish

232 Hill, The Danish Sound Dues, p 15 233 Hill, The Danish Sound Dues, p 54. 234 Michael Roberts, The Swedish Imperial Experience 1560-1718, Cambridge: Cambridge University Press, 1984), p 33. 235 Roberts, The Swedish Imperial Experience, p 40.

85 mastery of the Baltic. For periods in 1564 and 1565, Sweden captured the Sound and levied dues on shipping, while also insisting that foreign ships strike their flags before the coastal fortresses at Elsinore and

Nyborg.236 An order by the Danish King to arrest all foreign shipping in 1564 was opposed by Sweden and outside powers. Ultimately, however, the two sides exhausted themselves and the Treaty of Stettin was signed bringing an end to hostilities. Both powers would salute the ships of the other in their claimed waters, although the Treaty of Stettin did not define the extent of their maritime dominions.237

The following period saw international tension and contestation over the Danish king's attempts to introduce new taxes on shipping passing through the sound. Queen Elizabeth of England challenged these policies and argued that the sound was as “free as the air.”238 When the new King, Christian IV, ascended the throne, however, his government required greater revenues to pay for the governmental functions it had inherited when it expelled the Catholic Church. The easiest realm in which to expand was on water. 239 Hill concludes that King “Christian IV inherited from his father a more complete jurisdiction over the Baltic than had ever been exercised over a similar sheet of water before.”240

However, renewed disputes emerged between Denmark and Sweden, with the Kalmar War being fought between them in 1611-1612. Hill concludes that the “chief causes” were “conflict of jurisdiction over the Baltic and difficulties in the Sound, linked with Christian IV's ambition to unite all Scandinavia under his scepter.”241 This was the last time that Denmark was to successfully defend her claim to dominium over the

Baltic in the face of the Swedish King's challenge. The latter allied with the Dutch and Lubeck to oppose the king of Denmark and began expanding his territorial possessions in the eastern Baltic. 242 From then on,

Denmark and Sweden were concerned to prevent the growth of the Hapsburg influence over the Baltic with

Denmark joining the Thirty Years War in 1625 and Sweden in 1630.243 Indeed, the commander of the

Empire's forces had been granted the title of General of the Oceanic and Baltic Seas and this was removed in

236 Hill, The Danish Sound Dues, p 63. 237 Hill, The Danish Sound Dues, p 58. 238 Hill, The Danish Sound Dues, p 72. 239 Hill, The Danish Sound Dues, p 79. 240 Hill, The Danish Sound Dues, p 79. 241 Hill, The Danish Sound Dues, p 84. 242 Hill, The Danish Sound Dues, p 88. 243 Holsti, Peace and War, p 27.

86 the Treaty of Lubeck that brought an end to Danish involvement in the war in 1629.244

Sweden had become secure in the eastern Baltic and was collecting taxes on shipping entering the ports it controlled, thereby diminishing the claims of the king of Denmark to the dominion of the Baltic. 245

Instead of forming an alliance against Sweden with other powers, Christian IV of Denmark succeeded in alienating the Dutch by tampering with the Sound Dues in the 1630s. 246 This led to an alliance between the

Netherlands and Sweden. The negotiations that took place prior to war saw Dutch demands relating to freedom of fishing around Spitsbergen, and the reduction of the sound dues. However, Sweden was set on war and in part used Christian IV's policies in the sound as the pretext.247

The outbreak of hostilities in the Torstenson War took place in December 1643. By 1645, the Dutch could send 300 ships into the Baltic without paying the dues, the Danes' power was so broken. 248 The war concluded with peace negotiations in which the Swedes demanded free navigation through the sound for all their subjects, though they did not challenge the Danish dominion over the sound.249 The Treaty of

Bromsebro included provisions granting freedom from the dues for Swedish ships and it did not recognise any requirement for the Swedes to strike their sails to Danish castles on the Sound, though they were to fire a salute.250 Denmark was forced to reduce the Sound Dues and give up claims to inspect cargoes.251 The Danish dominion over the Baltic and the North Seas was also explicitly abolished.252 The Dutch had, too, succeeded in gaining reductions in the Sound Dues for itself, although a further agreement with Denmark giving more benefits to the Netherlands was later instrumental in causing the Anglo-Dutch War.253

Meanwhile, Sweden had embarked on further territorial conquests in the southern Baltic and

244 Hill, The Danish Sound Dues, p 99. 245 Hill, The Danish Sound Dues, p 110. 246 Michael Bregnsbo, 'Denmark and the Westphalian Peace', Historische Zeitschrift. Beihefte, New Series, 26 (1998), pp 361-367, p 364. For details, see Hill, The Danish Sound Dues, p 114-115. 247 Peter H. Wilson, The Thirty Years War: Europe's Tragedy, (Cambridge, Mass.: Belknap Press of Harvard University Press, 2009), p 687. 248 Wilson, The Thirty Years War, p 690. 249 Hill, The Danish Sound Dues, p 142. 250 Hill, The Danish Sound Dues, p 147. 251 Wilson, The Thirty Years War, p 691. 252 Hill, The Danish Sound Dues, p 148. 253 Hill, The Danish Sound Dues, p 157.

87 Denmark once again began to fear for her survival.254 Swedish claims to supremacy in the Baltic were soon opposed by the Dutch who bolstered Danish forces and Russia sent an embassy to Copenhagen to say that it was ready to challenge the claim of Sweden to dominion over the Baltic. 255 None of these states wished to see one of the powers become completely preeminent in the region. In 1657, Denmark launched an aggressive war against Sweden's dominance in the Baltic. The opening act of war once again took place in the Sound, with Denmark arresting three Swedish ships.256 The peace embodied in the Treaty of Roskilde saw Denmark lose the provinces of Scania, Halland and Blekinge, which meant she no longer controlled the

Sound. Bregnsbo concludes that “the dominium maris baltici, which had for centuries been the leading principle of Danish foreign policy, was irrevocably lost.”257 The Swedish effort to force Denmark to exclude foreign warships hostile to it from the Baltic drew a negative international reaction, however.258

The peace was again breached by Sweden in 1658, as King Charles X tried to destroy Denmark forever and gain control of the Baltic. His policies were once again challenged by the Dutch, who feared their Baltic trade being destroyed by a Swedish-English alliance. The Dutch fleet forced a Swedish retreat and relieved Copenhagen, while Imperial forces took advantage of the situation and attacked the Swedes in

Holstein.259 Peace was brokered by the Dutch, French and English: reference to the exclusion of warships that Sweden had imposed on Denmark at Roskilde was cancelled and Sweden vowed not to charge any tolls in the Sound, leaving them for the Danes to administer.260 The death of Charles X in 1660 prior to the signing of the peace had put an end to Sweden's ambitions to close the Baltic Sea and conquer Denmark.261

Swedish taxes levied in its ports in the Baltic continued to drain the profit from the Sound Dues, however, and by 1675, Denmark, joined by Brandeburg, was at war with Sweden again. A series of treaties between Sweden and Denmark confirmed the peace by, among other things, regulating the Sound dues. 262

254 Padfield, Tide of Empires, 1481-1654, p 17. 255 Hill, The Danish Sound Dues, p 162. 256 Hill, The Danish Sound Dues, p 164. 257 Bregnsbo, 'Denmark', p 366. 258 Padfield, Tide of Empires 1654-1763, p 18 and Hill, The Danish Sound Dues, p 168. 259 Hill, The Danish Sound Dues, p 171 260 Padfield, Tide of Empires 1654-1763, p 21 and Hill, The Danish Sound Dues, p 184. 261 Padfield, Tide of Empires 1654-1763, p 21 and Hill, The Danish Sound Dues, p 181. 262 Hill, The Danish Sound Dues, p 196.

88 Poland, Denmark and Russia then allied in 1699 and the Great Northern War ensued, with Russia desiring a port on the Gulf of Finland and Poland, Livonia.263 Aided by Great Britain and the Netherlands, Sweden made early gains, but was eventually defeated as Russia became the dominant power in Eastern Europe.

Bregnsbo concludes that Sweden was reduced to a third-rate European power and Dano-Swedish antagonism, consequently, came to an end.264 The Sound dues remained in place for a further century, occasionally causing international controversy that intensified around the middle of the 19th century.265

Concerns about the burden on commerce increasingly delegitimised the toll and the Danish government invited interested powers to negotiate an end to the dues. The payment of a sum to Denmark by each of the major states that used the Sound led to the abolition of the dues in 1857.

The Oceans Beyond Europe

Although both Muslim and Chinese seamen had at various points travelled far and wide beyond home waters, they never attempted to claim any kind of exclusive jurisdiction over distant seas, unlike the

Medieval powers of Europe. Indeed, China had retreated from its extensive exploration of distant lands and waters in favour of building a territorial empire and Muslim peoples had established extensive trade networks throughout the Indian Ocean and parts of the Pacific, but had not made sovereignty claims in these spaces. European states, however, had different designs and, at the end of the fifteenth century and the beginning of the sixteenth, it was the Iberian powers that were dominant at sea. Their superior technology enabled them ultimately to range right around the world.

The growing Spanish-Portuguese competition in this endeavour led to an agreement between them to divide the world into two distinct spheres of influence in which they could engage in conquest and colonisation. This arrangement was arguably based on a series of bulls issued by the Pope Alexander VI in

1493. The bulls have often been understood as dividing the world between the two powers as they drew a line in the Atlantic granting rights to each of Spain and Portugal to explore and establish possession of lands

263 Hill, The Danish Sound Dues, p 199. 264 Bregnsbo, 'Denmark', p 367. 265 See Hill, The Danish Sound Dues, Chapter VIII.

89 on each side of the meridian. In fact, the primary purpose of the Bulls was to encourage territorial discovery for the purposes of missionary activity.

It was through the Treaty of Tordesillas in 1494 that the two Iberian powers sought to assert control over marine space. In it, Portugal and Spain moved the papal meridian west and the treaty included a commitment by each of the powers not to navigate on the other's side of the line “for the purpose of discovering and seeking any mainlands or islands, or for the purpose of trade, barter, or conquest of any kind.”266 Spain used the signing of the treaty as an opportunity to protect ships from piracy, and both used it to prevent traded goods from reaching the hands of other European powers.267 This caused Grotius to complain that

The Portuguese claim as their own the whole expanse of the sea which separates two parts of the world so far distant the one from the other, that in all the preceding centuries neither one has so much as heard of the other. Indeed, if we take into account the share of the Spaniards, whose claim is the same as that of the Portuguese, only a little less than the whole ocean is found to be subject to two nations, while all the rest of the peoples in the world are restricted to the narrow bounds of the northern seas.268

Unlike Spain, Portugal, encountered a thriving local maritime trade network in its sphere of influence and engaged in naval activities that have been described by one author as amounting to the “conquest of the

Indian Ocean.”269

The Portuguese began to explore the West African coast in the mid-fifteenth century and were given a Papal bull that recognised their extensive “maritime dominions” in the region. However, King Manuel had more grandiose pretensions and, in a letter to Rome on 28 August 1499, he entitled himself “Lord of Guinea and of the conquest of the navigation and commerce of Ethiopia, Arabia, Persia and India.”270 No Portuguese ship was in the Indian Ocean at this point, though they had visited in 1487 and Vasco da Gama had made his

266 Translation of extracts of the Treaty between Spain and Portugal concluded at Tordesillas, June 7, 1494; ratified by Spain, July 2, 1494; ratified by Portugal, September 5, 1494, available at: {http://www.history.ubc.ca/sites/default/files/courses/documents/Tim%20Brook/Tordesillas %201494%20extracts.pdf} accessed 10 July 2013. 267 O'Connell, International Law of the Sea, p 2. 268 Hugo Grotius, Mare Liberum or the Right Which Belongs to the Dutch to Take Part in the East Indian Trade, Translated and revised by Ralph Van Deman Magoffin (New York: Oxford University Press, 1916). p 37-38. 269 Padfield, Tide of Empires, 1481-1654, chapter 2. 270 Charles Boxer, The Portuguese Seaborne Empire 1415-1825, (New York: A. A. Kopf, 1969). p 37 and Anand, Origin and Development, p 51.

90 famous voyage ten years later. When they entered the region, these first Portuguese interlopers found it was already home to an extensive trade network maintained by local populations from the territorial powers surrounding the Ocean and beyond. Particularly active were the Muslim populations from the Arab world. 271

The Portuguese, therefore, resolved permanently to station a squadron in the Indies as they benefited from considerably superior naval technology to that of their rivals.272 Indeed, the Muslim trading ships were not armed at all and there was no real history of naval conflict among the local Asian powers.273

In 1502, Vasco da Gama sailed to the region once more with a fleet, and committed many acts of depredation on the way, in order to enforce the Portuguese claim to the control of the seas. One incident in which an Arab ship was stopped and its goods plundered led to a contemporary historian to defend the action, saying,

It is true that there does exist a common right to all to navigate the seas and in Europe we recognize the rights which others hold against us; but the right does not extend beyond Europe and therefore the Portuguese as Lords of the Sea are justified in confiscating the goods of all those who navigate the seas without their permission.274

Almeida – the Portuguese viceroy – expanded Portuguese possessions, building forts in Africa and India but primarily continued to disrupt maritime navigation.275 These Portuguese incursions into the Indian Ocean and their attempts to enforce a trade monopoly led to a brutal conflict with the Muslim forces and Calicut at the beginning of the sixteenth century.

The first major encounter took place in 1506 at the harbour of Cannanore in India. The ensuing battle between Portugal and Indian forces, supported by Arab and Turkish seamen, ended in a Portuguese victory.

Padfield comments that this episode “ended the first serious challenge to Portuguese dominance of the Indian

Ocean.”276 However, this action catalysed a response from Calicut, supported by the Egyptian fleet, leading to the Battle of Chaul in 1508. This defeat delivered on Portugal by Calicut naval forces was short-lived as

271 Anand, Origin and Development, pp 41-49. 272 For an analysis of the role of naval technology in European expansion see Carlo M. Cipolla, Guns, sails and empires: technological innovation and the early phases of European expansion, 1400-1700, (Manhattan, Ka: Sunflower University Press, 1985). 273 Boxer, The Portuguese Seaborne Empire, p 44. 274 Anand, Origin and Development, p 53. 275 Anand, Origin and Development, p 55 276 Padfield, Tide of Empires, 1481-1654, p 52.

91 the Portuguese fleet returned to annihilate the Muslim fleet at the Battle of Diu the following year. In but a short time, Portugal had militarily achieved a permanent place in the Indian Ocean and the trade therein.277

Early on, there had been a lively debate between Almeida and Affonco d'Albuquerque about whether

Portugal needed only maritime control of the Indian Ocean or whether strategic territorial possessions in the region were required to pursue their trade monopoly.278 d'Albuquerque made a number of efforts to expand further Portuguese influence by attempting to gain the valuable port of Hormuz at the entrance to the Persian

Gulf.279 He succeeded in conquering Goa and made it the capital of the Portuguese Indian Ocean empire.

Next, d'Albuquerque turned his attention to Malacca, which was a strategic possession that enabled Portugal to seek to control the Java and South China Seas.280 Limited territorial gains were, therefore, made with the intention of controlling marine space and providing a gateway to the territorial riches on shore.

D'Albuquerque himself said that “a kingdom without ports is a house without portals.”281 Indeed, although the Portuguese made some territorial gains, primarily, they did not turn their attentions to territorial expansion, but rather to the control of maritime traffic.282 Portuguese forces implemented a policy to direct the trade of the Indian west coast away from the port of Calicut and towards the ports they controlled in order to collect customs dues. In order to achieve this goal, they used blockades and a system of licences: any ship caught not in possession of one of these licences en route to another port was to be plundered and destroyed.283 These practices were without precedent in the region and confirmed Portugal's place as the master of the seas.284

Despite their claims, Portuguese control was never total. Various tactics were employed by Asian

277 Anand, Origin and Development, p 63. Cipolla comments that after this point, the Portuguese King could justifiably style himself the Lord of the conquest navigation and commerce of Ethiopia, Arabia, Persia and India. Cipolla, Guns, Sails and Empires, p 137. 278 Padfield, Tide of Empires, 1481-1654, p 54. Almeida said that “if you are strong in ships the commerce of the Indies is yours, and if you are not strong in ships little will avail you any fortress on land.” Quoted in Cipolla, Guns, Sails and Empires, p 138. d'Albuquerque advocated gaining territorial possessions, but recognised that large territorial gains would not be possible. 279 Anand, Origin and Development, p 55-57. 280 Boxer, The Portuguese Seaborne Empire, p 46. 281 Quoted in Anand, Origin and Development, p 57. 282 Indeed, this pattern was a feature of early European expansionism. See Elizabeth Mancke, 'Early Modern Expansion and the Politicization of Oceanic Space', Geographical Review, 89:2 (1999) pp 225-236, p 227-228. 283 Padfield, Tide of Empires, 1481-1654, p 46. Cipolla, Guns, Sails and Empires, p 143. 284 Asian powers emphasised the freedom of the seas and even argued it in the face of Portuguese policies. Anand, Origin and Development, p 31

92 rulers to resist Portuguese influence, including the expansion of naval forces by the Ottomans in order to keep open the Red Sea route to the Levant.285 Indeed, Turkish forces exacted a heavy, but not total defeat on the Portuguese in 1551-52 and 1585-6 in which they sacked Muscat and besieged Ormuz and evicted the

Portuguese from almost the whole Swahili coast.286 Moreover, Portuguese domination of the Persian Gulf was never total.287 New trade networks also grew up among local powers and the Chinese effectively checked Portugal's attempt to conquer the South China Sea in 1521 and 1522.288 Oman, too, developed a strong fleet towards the end of the seventeenth century that challenged Portuguese control of East Africa and

European military dominance of the high seas.289 Mancke concludes that the “Portuguese became just another player in the Asian trades,”290 as a whole, but in the Indian Ocean, Boxer argues that they were able to “regulate the course of maritime trade... to a very considerable extent for almost the whole of the sixteenth century.”291 Cipolla agrees more broadly that “thanks to the revolutionary characteristics of their man-of-war, it took only a few decades for the Europeans to establish their absolute predominance over the Oceans.” 292

Certainly, the Portuguese claimed rights to do so, regardless of their material capacity to enforce them. One thing is clear, however, Portugal's control was not to last and its position weakened as more European powers arrived to challenge its trading dominance and maritime jurisdictional claims.

Non-Iberian Europeans had generally confined their navigation to the Atlantic through most of the sixteenth century.293 As they began to infiltrate Asia and set up their own trading networks, local rulers often played them off against one another but not sufficiently to regain control.294 However, while the Portuguese and other Europeans had to negotiate and accommodate Asian rulers, their relationships with one another were often less cordial. The first challenges to Iberian supremacy in the oceans were from the French in the

285 Mancke, Elizabeth, 'Oceanic Space', p 153. 286 Boxer, Portuguese Seaborne Empire, p 58. 287 Boxer, Portuguese Seaborne Empire, p 59. 288 Boxer, Portuguese Seaborne Empire, p 49. 289 Mancke, 'Early Modern Expansion', p 230. 290 Mancke, 'Oceanic Space', p 153. 291 Boxer, Portuguese Seaborne Empire, p 58. 292 Cipolla, Guns, Sails and Empires, p 140. 293 Mancke, 'Oceanic Space', p 152. 294 Cipolla, Guns, Sails and Empires, p 138.

93 first half of the sixteenth century.295 They engaged in piracy and eventually catalysed a Portuguese-Spanish alliance to defeat them, resulting in an agreement by Paris not to navigate to the Indies. Mary Tudor also recognised Iberian claims, but the reign of Elizabeth I brought fresh challenges to Iberian control. Mancke explains that “despite Portuguese naval patrols, trade retaliation, and confiscation of English property in

Lisbon, Elizabeth refused to concede that Portugal could legally restrict her subjects' access to Africa, and by extension to Asia and the Americas.”296 She did not recognise the Papal blessing of Iberian conquest in the non-European world as it was inconceivable “that he should bind princes who owe him no obedience.” 297

She, along with other challengers to Iberian dominance, also cited the freedom of the seas principles that would be promoted most vociferously by the Dutch at the beginning of the seventeenth century.

The Dutch first sailed to the east in earnest beginning in the late sixteenth century. Between 1594 and

1601, at least fifteen expeditions made their way into Iberian-claimed regions. 298 War between the Dutch forces and those of the now-united Spain and Portugal broke out in 1598-9 with Dutch attacks on Principe and Sao Tome. In 1604, the Dutch East India Company seized a Portuguese ship, which was the event that catalysed the Dutch defence of the freedom of the seas penned famously by Hugo Grotius. Despite the passionate Dutch defence of the freedom of the seas and of world trade, they themselves did not honour the principles in their own claims in the non-European world. Once they gained a foothold in the Indies at the expense of the Portuguese, they made their own monopolistic claims, even going so far as to seize English cargoes from ships in ports in the Spice Islands.299 The famous Amboyna massacre in which Dutch authorities tortured and killed English seamen became a bone of contention between the two countries in their century of rivalry. The Dutch also made gains on Ceylon, Singapore, the Malabar Coast, and the coast of Angola, finally defeating the Portuguese fleet in 1606. This triumph led to a short-lived truce in which

Spain (then the ruler of Portugal) promised not to molest Dutch ships that traded with independent Asian states.300 Further Dutch successes led to another ten year truce in 1641, but Portuguese domination of the

295 Mancke, 'Oceanic Space', p 155. 296 Mancke, 'Oceanic Space', p 156. 297 Fulton, The Sovereignty of the Sea, p 107. 298 Anand, Origin and Development, p 76. 299 Anand, Origin and Development, p 96 300 Anand, Origin and Development.

94 Indian Ocean was weakened beyond redemption. The ultimate peace signed in 1668-9 was “a peace of exhaustion” for Portugal.301 The Dutch had all but dismantled Portuguese control of Asia as well as the extensive maritime claims that went with it. A large portion of the reason for this success was superior Dutch naval power.302

Portugal was not the only state whose extensive non-European maritime claims were challenged by other European powers. The Dutch entered the Pacific and made several attacks on Spanish possessions in

Mexico and Peru at the end of the first quarter of the seventeenth century. They also attacked the Spanish possession of the Philippines and Britain disrupted Spain's dominance of Atlantic fisheries. 303 Spain, was, however, slow to relinquish its maritime claims, even as other European powers made extensive territorial gains in its sphere of influence. Though the Spanish reluctantly acceded to these gains, 304 they nevertheless contended that their recognition of non-Iberian settlements in the Americas only affected the land, with their claims to jurisdiction over the Atlantic remaining unaffected. All navigation, Spain said, was at its sufferance.305

In the mid-eighteenth century, a host of European powers began to undermine Spanish claims in the

Pacific. Their growing challenges eventually culminated in the 1789 seizure of British merchant ships by

Spanish authorities off the Pacific coast of North America. Spain reiterated its claim based on the Treaty of

Tordesillas, but Britain claimed that it had backed up its territorial claims with occupation. 306 The Nootka

Conventions eventually recognised British rights to set up territorial possessions in the region and defeated the notion that exclusive claims could be made on the basis of a grant by the Pope. Article III of the Nootka

Sound Convention stated that “in order to strengthen the bonds of friendship and to preserve in the future a perfect harmony and good understanding between the two contracting parties, it is agreed that their respective subjects shall not be disturbed or molested either in navigating or carrying on their fisheries in the

301 Boxer, Portuguese Seaborne Empire, p 113. 302 Boxer, Portuguese Seaborne Empire, p 114. 303 Mancke, 'Early Modern Expansion', p 232. 304 For example, Spain signed a treaty recognising England's conquest of Jamaica in 1670. See Mancke, 'Early Modern Expansion', p 232. 305 Mancke, 'Oceanic Space', p 157. 306 Mancke, 'Oceanic Space', p 161.

95 Pacific Ocean or in the South Seas.”307 By this time, the tide was turning away from exclusive claims to maritime space and towards a strong consensus in favour of the freedom of the seas.

Summary and Assessment: Sovereignty, Power and Marine Space

In the early modern period, claiming jurisdiction over maritime spaces was the norm. Like today, therefore, the map of the world's oceans could be thought, superficially, to resemble the map of land. It is also clear that the ocean was nevertheless constructed by some as a very distinct realm to the land and in some ways as a secondary space to it. Again, like today, the ocean was sometimes seen as a space lacking social significance on its own terms: this was especially the case among those who wished to control maritime spaces only in order to dominate the (land-based) activities of traders. Steinberg has also concluded that the Pope did not intend primarily to grant the rights to maritime space in his famous bulls relating to the non-European world.

Rather, the grant was of rights to discover and control land for the purposes of missionary activity. 308 The

Treaty of Tordesillas, too, was clearly designed to protect and facilitate the discovery and possession of land.

Steinberg also argues that maritime space, in the non-European world at least, was never incorporated as part of national territory.309 Moreover, Charles I seemed at times to consider the seas around Britain as a buffer against foreign attack, reinforcing their secondary value to the primary space of the land-based state.310 It was also widely thought within Europe that possession of the sea was related to sovereignty over the land, reinforcing the notion that the sea was understood as a dependent space given significance by land, not a separate, valuable space in its own right.311 However, despite these distinctions, the oceans nevertheless took their place in a greater political and normative international system: it was a location for social control and

307 Convention between Great Britain and Spain, (commonly called the Nootka Sound Treaty,) signed at the Escurial, October 28th, 1790, available at: {http://freepages.history.rootsweb.ancestry.com/~jkidd/books/greenhow/k.htm} accessed on 17 September 2013. 308 Steinberg, 'Lines of Division'. 309 Steinberg, Social Construction, p 74. 310 Boswell, the English Ambassador to Hague during the period of struggles with the Dutch over the sovereignty of the British Seas, said: “We hold it a principle not to be denied, that the King of Great Britain is a monarch at land and sea to the full extent of his dominions, and that it concerneth him as much to maintain his sovereignty in all the British seas as within his three kingdoms; because without that these cannot be kept safe, nor he preserve his honour and due respect with other nations.” Quoted in Fulton, The Sovereignty of the Sea, p 257. 311 For example, Craig, a Scottish lawyer writing in the reign of James VI contended that the sea belonged to those who owned the nearest land. O'Connell, International Law of the Sea, p 4.

96 regulation – and also for contestation.

From this period of extensive maritime sovereignty claims, it is clear that practices at sea to a large degree mirrored those on land, despite the differences between the two spaces. Contests for domination of the land and those for domination of the sea were essentially indistinguishable and blurred into one another.

In short, the ocean was just another realm in which monarchs and other types of governments competed for influence and jurisdiction. Moreover, the sea was a space over which kings wished to extend their power for the purpose of augmenting their prestige. In the reign of Charles I, his chief minister, Coke, said that “The greatness and glories of this Kingdom of Great Britaine consisteth not so much in the extent of his Majesty's territories by land, as in the souerantie and command of the seas.” 312 Indeed, the symbolic and substantive importance of control of maritime space, as well as the legitimacy of conflict over it, was reflected in the degree to which it served as a justification for war. Domestic support could be won for protecting sovereignty over the oceans, and this pretext was often used for the conflicts between England and the Dutch and also as a justification for Swedish territorial expansionism.313

The politicization of ocean space and the belief in the importance of dominion over it would appear to have been widespread. However, it should be noted there is some evidence that this construction of ocean space as symbolically valuable was confined to the European world. The Sultan of Gujarat, for example, stated that “wars by sea are merchants' affairs, and of no concern to the prestige of kings” 314 and there are no records of claims to maritime sovereignty in Asia prior to the arrival of Europeans. Indeed, Asian traders preferred to pay for licenses from British and Dutch authorities, as well as those of Portugal, rather than challenge the claims of Europeans.315 It would seem that this perception of marine space put these rulers at a disadvantage as it aided the European powers' efforts to dominate the non-European world, in part through claims to the possession of the sea.

Indeed, the issues at sea were more than purely symbolic. Mancke comments with regard to Spanish policy in the non-European world: “Spain's continued claims to the oceans, even when it gave up claims to

312 Quoted in Fulton, The Sovereignty of the Sea, p 212. 313 Roberts, Swedish Imperial Experince, p 18. 314 Mancke, 'Oceanic Space', p 152. 315 Anand, Origin and Development, p 61.

97 land, emphasizes the importance of maritime space to the structure of international power and Spain's attempt to use oceanic control to remain the preeminent imperial power, the 'lords of all the world'.” 316

Maritime space was thought to be of considerable strategic importance in the early modern period as monarchs vied to control commerce and resources for their own financial gain. The tolls levied on foreign shipping in the Baltic, for example, were a considerable source of personal income for the Danish King that made his maritime jurisdiction an appealing prize for his Swedish competitor. British jealousies were also ignited by their assessment that Dutch dominance of North Sea fisheries was the basis of their power.

The content of the rights states exercised at sea varied, but they included claims to exclusive control over fisheries, navigation, as well as law and order. In other words, the rights exercised within claimed maritime spaces were in many cases much more extensive than those possessed by coastal states today and sovereign rights were not so unbundled. Indeed, the language of sovereignty was used to describe the nature of states' jurisdiction at sea. O'Connell explained that the adumbration of the concept of sovereignty in the

Renaissance period provided “a methodology... whereby feudal jurisdictional rights in the sea could be rationalized by the lawyers as expressions of a claim to exclusive rule.”317 Thus, again, the distinction between land and sea was blurred in the early modern world, which had implications for international peace.

Rights to maritime space were conceived by some as emanating from principles which were indistinguishable from those on land, including discovery and papal grant.318

As on land, the use of force was part of the currency of maintaining maritime jurisdiction. This was achieved by naval capacity but also by the acquisition of strategic territorial possessions.319 The Scandinavian powers, for example, largely sought to control marine space by dominating it from the land, rather than through naval supremacy. Similarly, the possession of choke points in the non-European world were crucial to Portuguese control of the maritime spaces it claimed, though Portugal also relied heavily on its military strength at sea. The contests for the British Seas, on the other hand, mostly took place entirely between the

316 Mancke, 'Oceanic Space', p 157. 317 O'Connell, International Law of the Sea, p 6. 318 See Grewe, Epochs, p 257. 319 The contests for control of trade in marine space between Genoa and Venice in the thirteenth and fourteenth century was played out mostly by means of controlling strategic points, though Venice's naval prowess won out in the end. Unger, 'Power and Domination', p 143.

98 naval forces of the Dutch and the English. That said, that ocean space was allocated and contested mostly through force and occupation meant that the extent of any given state's jurisdiction was highly variable and disputes were commonplace.

Though many scholars contemplated the criteria on which maritime space should be allocated, the reality rarely matched their counsel and a patchwork of different methods was used in practice. Indeed, legal thinkers at the time made reference to a number of principles, including the well-known thalweg principle which defined boundaries in rivers according to the position of the deepest point of the channel or the mid line of the river between its two banks. Dee and Plowden, for example, promoted this principle as one of maritime delimitation during the reign of Elizabeth I.320 It was at times well-established practice that a portion of ocean between two coasts under the control of a single sovereign was under their jurisdiction, because of an analogy between such stretches of sea and rivers. For example, the Danish-Norwegian King proclaimed continuous sovereignty around Svalbard and Greenland, believing then that these islands formed one large land mass that joined with Norway.321 Similarly, the King of England claimed he had jurisdiction over the English channel because of his claim over portions of northern France. Other doctrines espoused were that jurisdiction should depend on the fertility of the land domain or that sovereignty should stretch to the distance that was visible from land.322

However, these principles were far from universally adhered to in the actual exercise of sovereignty at sea. Often jurisdictions were simply very ill-defined, but equally often they were very extensive. 323 Venice made considerable claims to the sovereignty of the entire Adriatic Sea long before the thirteenth century.

This claim was upheld by international society largely out of convenience as Venice provided the main bulwark against Turkish expansion in Europe. British claims to the sovereignty of the waters around its coasts were not fixed or particularly well-defined, but at some points claims extended to the shores of the

320 Fulton, The Sovereignty of the Sea, p 543. 321 Theutenberg, 'Mare Clausum', p 482. 322 The Italian author, Sarpi, favoured variable jurisdiction, while the Scots used the concept of land-kenning to define their exclusive fisheries claim. See Fulton, The Sovereignty of the Sea, p 547. 323 Hill comments that, in the Baltic, “how far the jurisdiction extended, neither Frederick II nor Christian IV knew. It was an unexploited field; only opposition could clear it up; and opposition finally cleared it away.” Hill, The Danish Sound Dues, p 80.

99 continent, in both the Channel and the North Sea. Indeed, Trinity House in London had been consulted at the time of the Third Anglo-Dutch War for its opinion on the extent of British maritime sovereignty; it said that the British Seas were commonly believed to “extend to Cape Finisterre, or the North Cape, and that the sea which washes the coast of the Low Countries and France had been always reputed part of the British

Seas.”324 This claim had the effect of shutting out the Dutch and other continental powers from exercising any jurisdiction over the waters off their own coasts.

Similarly, though Sweden and Denmark contested the control of the Baltic between themselves, they were in agreement that no other power should be permitted mastery of the sea. Consequently, despite its possession of a Baltic coastline, they denied Poland a fleet of its own. Christian IV released a pamphlet called Mare Balticum in 1638 in which he denied that Poland had any rights in the Baltic, instead claiming complete jurisdiction for himself.325 Russia, too, was held back from gaining any control of the Baltic: in

1583, Sweden succeeded in shutting Russia out of the Baltic altogether and gained complete dominance of the Eastern portion of the sea. Later, Sweden kidnapped Duke Jakob of Kurland and occupied his territory when it was feared that his small fleet might fall into the hands of the Russians.326 In short, then, it was by no means the norm that every state with a coastline would be entitled to dominion over a portion of maritime space. This pattern was even clearer outside of the European region where maritime claims were very extensive indeed and paid little heed to the rights of the inhabitants of the regions to which European attention was drawn.

To be sure, it is clear that the spatial extent and content of claims to rights over maritime space seemed to depend far more on national power and its international distribution rather than on any shared norms or principles, leading sometimes to unstable claims. Fulton concludes that British maritime claims

“expanded and contracted according to the naval power at the time and the condition of international affairs.”327 International recognition of maritime sovereignty claims was also highly variable, both in terms of

324 Quoted in Fulton, The Sovereignty of the Sea, p 478. Selden also claimed the British Seas extended over a very large area. See Grewe, Epochs, p 270. 325 Grewe, Epochs, p 109. 326 Roberts, The Swedish Imperial Experience, p 18. 327 Fulton, The Sovereignty of the Sea, p 16.

100 their spatial extent and the content of the rights claimed. Though the Baltic claims, and those of Venice were generally recognised in a series of treaties, for example, those of England in the British Seas were not. 328

Even though the claims of maritime jurisdiction of the Scandinavian states were recognised, it was the powers associated with that jurisdiction that was not universally agreed. Finally, the sweeping claims of the

Portuguese and Spaniards to jurisdiction over non-European waters were highly contested throughout the time in which they were made.

Not every country sought control of the waters when they challenged the claims of others. The

Dutch, for example, never claimed exclusive sovereignty over the North Sea themselves, instead justifying their challenge to English control by saying that nobody could possess the oceans as property. Though the

Dutch appeared to renege on this principle when they became dominant in the non-European world, it is true to say that practices similar to conquest were not the only means through which states attempted to gain control of or access to maritime spaces. Indeed, it is perhaps possible to characterise maritime space in the

16th and 17th centuries in a similar way to Holsti's description of territory in the 17 th and 18th centuries. He said, “patterned practices featured constant territorial revision and conquest, ideas of territory as a commodity and personal-patrimonial possession, and weak norms.”329 In sum, maritime space was also viewed by some as the personal possession of the monarch; territorial revision at sea was commonplace and states often challenged each other's claims militarily. Shared norms relating to the treatment of maritime space were also absent and ideas were used strategically depending on the material interests of the power in question. Ultimately, however, the world slowly moved back to the consensus supported by Rome.

The Freedom of the Seas

The old Roman principle of the freedom of the seas gradually became the norm as the claims to maritime sovereignty of the early modern period were dismantled. The idea had a long pedigree, however, and was regularly invoked by those states whose interests demanded that they oppose the exclusive rights claimed by others. Beginning in the mid-sixteenth century, some challenges employing freedom of the seas justifications 328 On treaties relating to the Baltic claims, see Grewe, Epochs, p 262. 329 Holsti, Taming the Sovereigns, p 87.

101 were made to Venetian sovereignty in the Adriatic.330 Similarly, throughout the reign of the Tudors, England had been a supporter of the freedom of the seas: it had challenged the exclusive claims of other monarchs, in particular those of the Danish King around the Northern Seas and the claims of Spain and Portugal. 331

Elizabeth I had refused to recognise the right of the Pope to grant maritime rights that would bind her, saying that “the use of the sea and air is common to all; neither can any title to the ocean belong to any people or private man, forasmuch as neither nature nor regard of the public use permitteth any possession thereof.”332

When the Dutch joined with the Swedes in defeating Denmark's dominion over the Baltic Sea, they did so using a freedom of the seas justification. Clearly, the freedom of the seas doctrine was political in origin and used strategically by those powers disadvantaged in trade and resource exploitation in the oceans by the claims of sovereignty of others. Its most articulate defender was, of course, Hugo Grotius, whose pamphlet,

Mare Liberum, became the standard work on the issue and the foundation for the later widespread adoption of the principle of the freedom of the seas.333

Grotius originally penned his defence of the freedom of the seas to counter the claims of Portugal and Spain to trade monopolies in the world outside Europe. However, his ideas also had an effect on the contest with England over the sovereignty of the British Seas. The British authors, Welwood and Selden, produced works defending closed seas in a dialogue that has become known as the “battle of the books”. As

Steinberg notes, Grotius' arguments can be distilled into a few distinct points. 334 Grotius claimed that the

Iberian powers could not possess the sea by means of occupation: it was not suitable for human habitation due to its vastness. He also said that the sea was “adapted for the use of all” because its main uses – navigation and fishing – were inexhaustible and, therefore, natural law dictated that no one could be excluded from them. Additionally, Grotius argued that the non-European ocean could not be claimed by possession of the land, as it had existing sovereigns; that Portugal had not discovered the seas so could not claim them on that basis either; and it was beyond the powers of the Pope to grant rights in the sea that were

330 Grewe, Epochs, p 340. 331 See Grewe, Epochs, p 263. 332 Quoted in Grewe, Epochs, p 261. 333 Grotius, Mare Liberum. 334 Steinberg Social Construction, p 90.

102 contrary to natural law.335 Grotius did recognise that the users of the seas had a responsibility to conserve its resources and that any portions of marine space – such as inlets – that could be occupied could be possessed.

The deep ocean, however, remained free for the use of all.

The first answer to Grotius came from the Scottish lawyer William Welwood, who based his argument for closed seas on theology and said that the divine command to rule the earth required dominion over the oceans.336 He considered that the sea could be divided by boundaries, acquired, occupied and owned and jurisdiction asserted there, though navigation would remain free.337 In a claim echoed centuries later as the contemporary property rights regime at sea was negotiated, Welwood asserted that fisheries adjacent to given areas of land might be depleted, justifying their enclosure.338 Indeed, he also considered that areas of ocean could only be possessed by those who ruled adjacent coasts, suggesting, in the words of one commentator, that “ownership and jurisdiction and protection go hand in hand.”339 The more famous challenge came from John Selden, however.

Selden set about documenting the history of European authorities claiming sovereignty over maritime space to show the long-established practice of possessing the sea. He also documented the relationship and historic claims of England to dominion of the British Seas, which he defined expansively.

He viewed the capacity of the navy effectively to rule the seas as essential for property rights to be asserted in them.340 Importantly, he did acknowledge that interference with free navigation was not legitimate, perhaps because English concerns at the time were to establish exclusive rights to fisheries only. Similarly, his arguments were confined to local waters and Selden had little to say about the distant, deep waters that were at the time being contested by the Dutch and the Iberian powers. That said, he did argue that the latter lacked the capacity to maintain their claims.341

The Portuguese scholar, Freitas, however, was tasked with defending Portuguese control of distant

335 Robert Feenstra, Hugo Grotius Mare Liberum 1609-2009: Original Latin Text and English Translation, (Leiden: Brill, 2009), p xviii. 336 O'Connell, International Law of the Sea, p 10. 337 Feenstra, Hugo Grotius, p xxi. 338 Anand, Origin and Development, p 101. 339 Feenstra, Hugo Grotius, p xxi. 340 Feenstra, Hugo Grotius, p xxvii. 341 Grewe, Epochs, p 267.

103 waters. He did so by appealing to customary international law, by arguing that the Portuguese were fighting a just war against Islam and because the Pope had given them permission to engage in missionary activities. In so doing, the argument went, the Pope granted them exclusive rights in the region. He also suggested, contra

Grotius, that there was nothing in the physical nature of the ocean that prevented its possession.342

Regardless of this scholarly debate, real world practice continued to vary depending principally on the material interests of states. Even the most avid promoters of the freedom of the seas – the Dutch – themselves began to challenge the doctrine around the Spice Islands when they managed to defeat

Portuguese supremacy in the region.343 This led to the curious situation of Grotius being dispatched to

London to argue for closed seas.344 The transition to the freedom of the seas era was indeed not rapid or uniform. A combination of changing power dynamics, concessions to other states and the promotion of the freedom of the seas by internationally significant powers led to the attenuation of many European maritime sovereignty claims. By the end of the seventeenth century these were mostly in decline and the consensus entered a transitional phase.345 O'Connell comments that the debate in the British House of Lords relating to the seizure of British ships in the run up to the War of Jenkins's Ear in 1739 “revealed, not a common understanding about the rules of the law of the sea, but the widest spectrum of opinion.”346 Though exclusive rights were occasionally invoked later on into the nineteenth century, such as the Russian Ukase that sought jurisdiction over the sea up to one hundred Italian miles from the coast of North-West North America, these were modified and reduced as a result of international pressure in favour of the freedom of the seas. 347

Indeed, the principle had become the international norm by the end of the Napoleonic Wars.348

Thus, rather than asserting wide claims to maritime jurisdiction, states began to adopt more circumscribed limits for their national jurisdictions at sea. The idea became common that the actual power to

342 Anand, Origin and Development, p 103. Also Grewe, Epochs, p 259. 343 Mancke, Oceanic Space, p 158. 344 Fulton, The Sovereignty of the Sea, p 340. 345 O'Connell, International Law of the Sea, p 10. 346 O'Connell, International Law of the Sea, p 19. 347 See C.B. Bourne and D.M. McRae, 'Maritime Jurisdiction in the Dixon Entrance: The Alaska Boundary Re- Examined', Canadian Yearbook of International Law, 14:183 (1976). 348 O'Connell, International Law of the Sea, p 19.

104 ensure effective control was required to assert property rights in the sea. 349 Though ships were thought adequate to generate such control in the early seventeenth century, the most famous methodology for defining states' rights to control marine space in the eighteenth was the so-called cannon-shot principle. 350

Grotius himself had suggested in his other famous work The Law of War and Peace that a state's maritime domain might extend as far as the sea may be compelled from the land. Though first adumbrated by the

Dutch in 1610,351 the popularisation of the cannon-shot rule has been attributed to Cornelius van

Bynkershoek, who first advocated the principle in 1703.352 Increasingly the canon-shot rule – that maritime dominion extended to the distance that artillery fire could reach from shore – was adopted widely until it was gradually replaced by the limitation of states' sovereignty at sea to a specified distance. Beyond this realm of coastal state control, the ocean was to be free for the use and exploitation of every state.

This evolution in practices did not stop powerful states seeking to dominate marine space, but they did so for the purposes of enforcing free seas, rather than for controlling and taxing navigation and resource extraction. At this time, the seas began to be viewed, in Steinberg's terms, as a great void and were, concomitantly, depoliticised. Holsti concludes: “the international politics of nineteenth-century Europe revolved around questions of territory, state creation, balance of power, alliances, and colonial rivalry.

Commercial and navigational problems excited little attention at the highest levels of government.”353 The idea that marine resources were so plentiful as to be inexhaustible and that the sea was common to all for the purposes of both fishing and navigation was institutionalised. All this had an effect on the character of conflict at sea. In his study of the issues that caused wars from 1648 to 1990, Holsti comments,

One of the most dramatic declines among the issues that generated wars in the European states system involved commerce and navigation. Matters of trade monopolies, privateering, fishing rights, rights of neutrals in wartime, and territorial jurisdiction over the seas had been significant sources of conflict and war during the seventeenth and eighteenth centuries. By the nineteenth century, many of these issues had been resolved through the development of customary law, international treaties, or obsolescence.354

349 O'Connell, International Law of the Sea, p 13. 350 O'Connell, International Law of the Sea, p 14. 351 Douglas M. Johnston, Theory and History of Ocean Boundary-Making, (Kingston: McGill-Queen's Univesrity Press, 1988), p 79. 352 Anand, Origin and Development, p 138. 353 Holsti, Peace and War, p 154. 354 Holsti, Peace and War, p 153.

105 Indeed, in the period 1648 to 1713, maritime and commerce issues were present in a third of all wars, though it should be noted they were sufficient causes of only three.355 From 1715 to 1814, there was little change in the role that maritime and commercial factors played in war, but by the next century, their salience had declined and they were a factor in only 13% of wars, all of which involved the Turkish Straits. 356 Though conflict still occurred at sea, it predominantly did not do so in order for participants in such wars to own the sea.

The dominant conception of the ocean was ever more as a great, formless void that was not an object of contest at the same time that the legitimacy of conquest was reaching its zenith on land. On the face of it, the politics of the land and the politics of the sea might seem to have completely diverged at this time. To be sure, land-based norms of appropriate behaviour would seem to be irrelevant when the ocean was conceived in such un-land-like terms. This is not to say that thinking about the land did not exercise continued relevance in the oceans, however. States retained a territorial sea in large part to protect the land. Moreover, in this period in which power, coercion and effective occupation played such a strong role in thinking about the land, this, too, was the fundamental basis of jurisdiction over the territorial sea, which extended but a short distance from the coast and continued to be thought of in the terms popularised by Bynkershoek. 357

Beyond, the free seas reigned until the concept came under renewed pressure in the twentieth century.

The Construction of the Contemporary Marine Property Rights Order

Though the international community, as it then was, attempted to codify the freedom of the seas consensus at the Hague Conference of 1930, there were difficulties in gaining universal agreement on the breadth of the territorial sea. Several, predominantly small, states wanted to institute a contiguous zone in which they could enforce their customs, fiscal and sanitary laws, judging the narrow territorial sea insufficient to achieve these ends. British opposition was a powerful inhibitor of this development, however, and Britain continued to oppose any extension of coastal state competence beyond three nautical miles from shore for decades prior to

355 Holsti, Peace and War, p 54. 356 Holsti, Peace and War, p 154. 357 Charles Molloy also based his emphasis on the need to have the capacity to actively control maritime space in order to assert jurisdiction there. See Grewe, Epochs, p 272.

106 and after the Hague Conference.358 Consequently, the codification of the law of the sea had to wait until the

United Nations era.

In the aftermath of World War II, with technology for offshore oil exploitation developing rapidly and security concerns at the forefront of policy-making,359 the United States promulgated its policy with respect to the natural resources of the subsoil and seabed of the continental shelf – the so-called Truman

Proclamation.360 The declaration sought to extend US jurisdiction and control over the resources of the continental shelf appertaining to its land mass. It was an innovation in international law, given that the previous perspective had been that actual occupation by oil platforms would be necessary to assert title. 361

Nevertheless, the declaration precipitated a rash of similar claims by other countries leading to the development of a new rule of customary international law recognizing jurisdiction over the continental shelf.

However, some used the precedent as a justification for taking national control of more than simply the resources of the continental shelf. Latin American countries, in particular, were at the forefront of moves that sought to bring larger spaces and more functions under coastal state control.362 As discussed above, a number legislated powers to regulate the living resources of the water column or declared zones of control that extended beyond the natural continental shelf in cases where it was very narrow. Most worrying from the perspective of maritime powers was that some of these claims used the language of sovereignty. This instilled fears that the ocean might become enclosed, interfering with freedom of fishing and navigation, the maintenance of which were core interests of the great powers. Indeed, throughout the construction of the property rights regime at sea over the course of the second half of the twentieth century, there were essentially two groups of states: those which favoured more coastal state regulation of marine space and 358 Anand, Origin and Development, pp 144-148. 359 Drilling was already occurring off the coast of California and there was pressure from the oil industry regarding the Gulf of Mexico. The Department of the Navy had wanted the continental shelf to be designated a Naval Oil Reserve. See Hollick, US Foreign Policy, p 29. 360 Harry S. Truman, 'Proclamation 2667 - Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf', 28 September 1945. available at: {http://www.presidency.ucsb.edu/ws/?pid=12332} accessed 10 July 2013. 361 Hollick, US Foreign Policy, p 30. 362 For an outline of the claims following the Truman Proclamation, see Lauterpacht, 'Sovereignty', pp 379-383, and, for an examination specifically of Latin American practice see Jorge A. Vargas, 'Latin America and its Contribution to the Law of the Sea', in Finn Laursen (ed), Toward a New International Marine Order: Proceedings of the NIO Youth Seminar held in Amsterdam, (The Hague/Boston/London: Martinus Nijhoff Publishers, 1982), and on policies in other regions, see Kunz, 'Continental Shelf', p 832.

107 those who wished to retain a liberal order for the oceans in which activities were unencumbered by regulation and governmental interference. Though the composition of these groups of states was far from static, to begin with, maritime fishing states tended to favour a liberal regime and developing states greater enclosure.

The unilateral moves made by representatives from the latter group, and the disorder they brought about, precipitated a series of international conferences convened to bring coherence to the law of the sea.

The United Nations convened the First Conference on the Law of the Sea in 1956. It was to be held in

Geneva and its work was divided into four separate committees. One dealt with the continental shelf, another with the territorial sea and contiguous zone, a further committee examined fisheries conservation and a final committee was convened to deal with the high seas regime. There were many clashes over how to organize marine space in such a way as to accommodate the multitude of activities that took place in the ocean. The product was four separate treaties – the Geneva Conventions on the Law of the Sea – on each of the issues discussed by the committees.

The Conventions essentially codified customary international rules at the time of the conference, though there was some “progressive development” of the law.363 They recognised and standardised the continental shelf regime, clarifying the extent of coastal state control of the continental shelf in both spatial and functional terms. While coastal states purported to exercise sovereignty at sea historically, and exercised varying degrees of control over all maritime activities, the continental shelf convention codified functional sovereign rights for states. This meant free navigation and fisheries would remain in tandem with exclusive coastal state control of seabed and subsoil resources. Coastal states did gain rights to participate in the regulation of fisheries, but they were not accorded exclusive fishing zones and the vocal demands of some states for an extended territorial sea were not codified. Instead, the Convention on the Territorial Sea and

Contiguous Zone set out the regime for these areas but did not specify their spatial extent. The Second

United Nations Conference on the Law of the Sea was, therefore, convened in 1960 in an attempt to bridge the divide between those calling for an expanded territorial sea and those wishing to retain as broad an area

363 O'Connell, International Law of the Sea, p 22-23. For example the clarification of the nature of juridical bays.

108 of high seas as possible, but it, too, ended in failure.

In 1967, Arvid Pardo, Malta's representative to the United Nations, made a famous speech on the maritime order. The potential for conflict and competition, as well as an inequitable division of seabed resources led Pardo to call for the resources of the deep seabed to be declared the common heritage of mankind.364 His call catalysed the convening of the Third UN Conference on the Law of the Sea, which opened up the entire legal order of the oceans once more. As decolonisation had proceeded apace, there had been growing pressures in the developing world for the institutionalisation of exclusive economic zones in order to give coastal states exclusive rights to living resources in the same way as they had been given them over mineral resources on their continental shelves. International society was gradually moving towards a consensus for a twelve nautical mile territorial sea and two-hundred nautical mile EEZ before the Third UN

Conference on the Law of the Sea was even convened.

The third conference was an explicitly political one in which the maritime legal regime underwent a revolution, rather than a simple evolution.365 Moreover, instead of compartmentalising different issues as had happened at Geneva, the Third Conference determined to create a single, unified treaty on the law of the sea and it concluded when the UN Convention on the Law of the Sea was signed in 1982. The Convention contained the now familiar maritime zones of the twelve nautical mile territorial sea, the contiguous zone of a further twelve nautical miles, within an exclusive economic zone of two hundred nautical miles. It also established precise limits to the extended continental shelf, declared the deep seabed to be the Common

Heritage of Mankind and set up a machinery for its administration and exploitation. The opposition of a group of industrialised states to this deep seabed regime, however, led to the conclusion of a further agreement in 1994 which, though termed an implementing agreement, modified the provisions of UNCLOS relating to “the area”.366 This paved the way for UNCLOS together with the 1994 Agreement to develop into

364 He also made an unsuccessful call to establish a single organization tasked with the governance of marine space. See Louis B. Sohn, 'Managing the Law of the Sea: Ambassador Pardo's Forgotten Second Idea', Columbia Journal of Transnational Law, 36 (1998), pp 285-305. 365 Jens Evensen, 'UNCLOS: Origin and Process of Negotiation', in Finn Laursen (ed), Toward a New International Marine Order: Proceedings of the NIO Youth Seminar held in Amsterdam, (The Hague/Boston/London: Martinus Nijhoff Publishers, 1982), p 7. 366 Edward Duncan Brown, 'The 1994 Agreement on the Implementation of Part Xl of the UN Convention on the Law of the Sea: breakthrough to universality?' Marine Policy, 19:1 (1995) pp 5-20, p 9.

109 the fundamental constitution of the oceans.367

The reconciliation of the freedom of the seas and control of resources was a running theme throughout the oceans law-making process in the twentieth century and led to the dual regime that is so familiar today. Again, unlike historical periods of expansionism at sea, the legal order of the oceans embodied in UNCLOS was one of multiple, overlapping jurisdictions that precluded the extension of sovereignty beyond the territorial sea. Entirely free navigation was retained beyond the territorial sea at the same time as many resources fell under the exclusive jurisdiction of coastal states. Thus, we still see the world's navies put to the use of protecting free navigation. However, they now have a second mission: that of protecting states' exclusive resource rights. Though great naval powers still seek to dominate the world's oceans to project power, protect their homelands, secure shipping and protect their maritime boundaries, we have not yet explicitly seen them used for the purposes of expanding their maritime zones to gain control of resources other than those to which they are legally entitled.

Contemporary Ocean Politics

Compliance with the provisions on the seaward limits of jurisdiction enumerated in UNCLOS is extremely good. Only six states have legislation purporting to extend their territorial sea beyond 12 nautical miles; only

1 state has a wider contiguous zone than that to which they are entitled and no state has an EEZ or fishing zone of more than 200 nautical miles.368 Though the freedom of the seas regime continues to be challenged

367 For an exploration of this concept, see Shirley V. Scott, 'The LOS Convention as a Constitutional Regime for the Oceans', in A.G. Oude Elferink (ed), Stability and Change in the Law of the Sea: The Role of the LOS Convention, (Marinus Nijhoff Publishers, 2005), pp 9-38; Oran R. Young, 'Commentary on Shirley V. Scott; The LOS Convention as a Constitutional Regime for the Oceans', in Elferink, Stability and Change, pp 39-46; Richard A. Barnes, 'Commentary', in Elferink, Stability and Change, pp 47-48 and Rainer Lagoni, 'Commentary', in Elferink, Stability and Change, pp 49-51. 368 73 states, by contrast, are compliant with the 12 nautical mile limit of the territorial sea; 85 with the 12 nautical mile limit beyond the territorial sea that comprises the contiguous zone and 165 have a fishing or exclusive economic zone of 200 nautical miles or less. See United Kingdom Hydrographic Office, 'National Claims to Maritime Jurisdiction', 2012, available at: {http://www.ukho.gov.uk/ProductsandServices/MartimeSafety/AnnualNm/12.pdf} accessed 27 March 2013. One notable exception possibly involves Canadian legislation for the Inuvialuit Settlement Region, the boundaries of which extend beyond 200 nautical miles and within which indigenous peoples have hunting and fishing rights. However, it is not clear what character of jurisdiction Canada purports to exercise in those waters as they are mostly ice-covered and not accessed by any foreign vessels. See James S. Baker and Michael Byers, 'Crossed Lines: the Curious Case of the Beaufort Sea Maritime Boundary Dispute', Ocean Development and International Law, 43:1 (2012), pp 70-95. Another exception was enacted to prevent tanker accidents in the area of the German Bight. Here, the territorial sea was extended to 16 nautical miles. The situation

110 by a minority of states, those states do so only within their existing national zones and, therefore, only with regard to rights other than those to property.369 Thus, even though some have sought to control more functions than those they are granted in UNCLOS – in other words, further to fill in their respective national zones – significantly, no state has purported to exercise jurisdiction over resources of any kind beyond 200 nautical miles from shore apart from those entitled so to do by the presence of an extended continental shelf.

Indeed, in the whole twentieth century history of the changing law of the sea, very few states have attempted to expand beyond the 200 nautical mile limit in the absence of an extended continental shelf or claimed historic rights.370

Perhaps even more significantly, states have been eager to demonstrate precisely that they have not extended their EEZ rights beyond 200 nautical miles in instances where it may appear otherwise. For example, in an agreement between the Russian Federation and Norway which delimited their common maritime boundary in the Barents Sea, they made a provision for a so-called “special area”. 371 The special area was included because a part of the boundary cut off an area where Norway would be able to exercise

EEZ rights because it was within 200 nautical miles from the Norwegian coast. The area was beyond 200 nautical miles from the Russian coast, but the parties decided to assign Norway's jurisdiction to Russia. The treaty made explicit reference to the action not being intended to extend the Russian EEZ beyond the distance to which it was entitled, saying “such exercise of sovereign rights or jurisdiction derives from the agreement of the Parties and does not constitute an extension of its exclusive economic zone.”372 In pursuit of this Russia committed to making its charts and domestic laws applicable in the area reflect the source of the is not, however, comparable to the Inuvialuit Settlement Region which purports to regulate more resources than those to which Canada is entitled. See Rüdiger Wolfrum, 'Germany and the Law of the Sea', in Tullio Treves (ed), The Law of the Sea: The European Union and its Member States, (The Hague: Kluwer Law International, 1997), pp 199-224, p 203. 369 Nevertheless, there are calls to create marine parks beyond the EEZ in several places in the world, particularly in the South Pacific where pockets of high seas remain that are totally enclosed by the EEZs of various countries. See Susan Gubbay, 'Marine Protected Areas: Past, Present and Future', Conservation Biology Series, 5 (1995), pp 1-14. 370 Brunei did seek to delimit a boundary with Vietnam that was 240 miles from its coast, but that claim has subsequently been reduced to 200nm from its coast as permitted by UNCLOS. The Philippines also made a controversial claim to sovereignty over the waters inside a box defined by a colonial treaty. This claim has also been reduced. See Charney and Alexander, International Maritime Boundaries. 371 A similar provision was made in the 1990 USA-USSR maritime boundary agreement. Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary (1990) 29 I.L.M. 941, available at: {http://www.state.gov/documents/organization/125431.pdf} accessed on 11 July 2013. 372 Agreement between the United States of America and the Union of Soviet Socialist Republics, Article 3(2).

111 rights. On the face of it, then, this at least suggests cautious behaviour with regard to the assertion of rights to jurisdiction at sea and the potential illegitimacy of jurisdictional expansionism there, now that there is a settled property rights order.

It is also significant that states have followed the procedure laid out in UNCLOS for delineating the outer edge of their jurisdiction over the extended continental shelf. Article 76 of UNCLOS outlines a complicated formula defining the limits of national jurisdiction over the continental shelf: the formula is based on the thickness of sedimentary rocks and the location of the foot of the slope, which must be determined by complex mapping of the ocean floor.373 States have spent considerable time and financial resources on this mapping. The Convention instituted a specialised body – the Commission on the Limits of the Continental Shelf – to provide its advice on whether the scientific data provided to it in support of a state's proposed continental shelf delineation is sufficient to meet the requirements of the convention.374 Ted

McDorman has described this Commission as having a “safeguard or watchdog role respecting exaggerated continental margin claims.”375 So far, no country has unilaterally delineated its extended continental shelf jurisdiction without seeking to gain the advice of the Commission.376 Title to the resources of the shelf are based on its being the natural extension of the land mass of a given coastal state under the sea. Therefore, the rights of a coastal state to the resources of its own geological continental shelf are inherent – states do not need actively to make a claim to the rights and there is no need for them to “effectively occupy” the shelf either.377 Consequently, the CLCS process is considered by some lawyers not even to be legally obligatory:378 given the costs involved with seabed mapping, it would, therefore, seem that states value the legitimacy that the CLCS's approval of their delineation provides. Again this signals that states take a cautious approach to

373 UNCLOS, Article 76. 374 UNCLOS, Annex II. 375 Ted L. McDorman, 'The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World', International Journal of Marine and Coastal Law, 17:3 (2002), pp 301-324, p 308. 376 74 states have submitted information to the CLCS or registered their intent to do so, which represents the bulk of states with entitlements to an extended continental shelf. Undoubtedly more will do so. See Coalter Lathrop, 'Continental Shelf Delimitation Beyond 200 Nautical Miles: Approaches Taken by Coastal States Before the Commission on the Limits of the Continental Shelf', in David A. Colson (ed), International Maritime Boundaries, (Martinus Nijhoff and American Society of International Law, 2012). 377 UNCLOS, Article 77(3). 378 McDorman, The Role of the Commission, p 306.

112 exercising ocean jurisdiction. In short, public compliance with the law defining coastal state maritime limits is deemed important.

A Note on Baselines

States may establish straight baselines along their coastlines if they are heavily indented, cut into or fringed with islands.379 The provision that allows these baselines to be constructed is an exception to the normal method of drawing baselines, which is that they should follow the low water mark. Consequently, it has been argued that the provision on straight baselines in UNCLOS should be interpreted restrictively. One study suggested that straight baselines must

• not depart to any appreciable extent from the general direction of the coastline, by reference to

general direction lines which in each locality shall not exceed 60 miles in length;

• not exceed 24 miles in length; and

• result in sea areas situated landward of the straight baseline segments that are sufficiently closely

linked to the land domain to be subject to the regime of internal waters.380

The object and purpose of the straight baselines option is to simplify a state's baselines in the event that the coast is distinctly complex. Consequently, a US study suggested baseline segments should not be more than

48 nautical miles long, islands must mask at least 50% of the coast and the baselines should not depart more than 20 degrees from the general direction of the coast.381 Straight baselines may also be drawn to enclose historic or juridical bays and river mouths, as well as to define the outer limits of archipelagic waters.

However, it has been widely argued that many states have abused the provisions on straight baselines in making their maritime claims, particularly in Asia.382 379 UNCLOS, Article 7. 380 Quoted in Roach and Smith, 'Straight Baselines', p 64. 381 United States Department of State, Limits in the Sea (No. 106): Developing Standard Guidelines for Evaluating Straight Baselines (1987), p 6, available at: {http://www.state.gov/documents/organization/59584.pdf} accessed on 17 September 2013. 382 For details, see Sam Bateman and Clive Schofield, 'State Practice Regarding Straight Baselines in East Asia: Legal,

113 Thailand's straight baselines system was drawn on a coast with islands that could not be considered a fringe. The Maldives purported to delineate its territorial sea and EEZ from points in the high seas. North

Korea has drawn a straight baseline along its coast 300 miles long 383 and Burma has enclosed the Gulf of

Martaban with a straight baseline 222 miles long – the longest of its kind in the world. Given that the nearest land is 75 miles away at its furthest extent, Rangoon's claim that this baseline is necessary to protect the economic interests of coastal inhabitants would seem hard to maintain. Cambodia uses a series of small features distant from its coast that cannot be considered a fringe of islands and Taiwan, Thailand, South

Korea and Japan's baselines suffer similar problems in their use of islands and rocks distant from their coasts.

China has gone so far as to build markers on thirteen low-tide elevations to improve the legitimacy of its claim to use them as basepoints, despite the fact that they are in some cases very far from the coast. 384

Beijing has also drawn straight baselines around the Paracels, claiming them as an archipelago, in violation of the standards for that designation. Malaysia has also seemingly drawn excessive lines, though these have not been officially announced. The Philippines made a complicated set of claims based on a historical treaty, although these have been amended to bring them into line with the Law of the Sea Convention.385

The United States has been the most vociferous in its protests relating to these straight baseline systems and has engaged in “freedom of navigation operations” that challenge them on a number of occasions. Other states and entities, for example the EU, have also protested some claims they deem to be excessive. The US position on the criteria that should be used to draw straight baselines is not, however, binding on other countries. Indeed, the widespread liberal practice may indicate the emergence of new customary law, at least in the East Asian region, though there are also powerful arguments against this view.

The question of legality aside, the effect of these excessive claims in some cases is to push seaward

Technical and Political Issues in a Changing Environment', Paper presented at the Conference on Difficulties in Implementing the Provisions of UNCLOS, Monaco, 16-17 October 2008. Available at: {http://www.gmat.unsw.edu.au/ablos/ABLOS08Folder/Session7-Paper1-Bateman.pdf} accessed on 11 July 2013. 383 See Jon M. Van Dyke, 'Disputes over Islands and Maritime Boundaries in East Asia', in Seoung-Yong Hong and Jon M. Van Dyke (eds), Maritime Boundary Disputes, Settlement Processes and the Law of the Sea, (Leiden/Boston: Martinus Nijhoff Publishers, 2009), p 41. 384 See James Manicom, 'Beyond Boundary Disputes: Understanding the Nature of China's Challenge to Maritime East Asia', Harvard Asia Quarterly, 12:3/4 (2010), pp 46-53. 385 See Chapter Eight below.

114 the extent of the state's claimed maritime zones and to encroach on high seas fisheries resources or, in some cases, the international deep seabed. However, Bateman and Schofield have shown that the effect of many of the claims that use islands are not as marked as they may appear as these features would be entitled to generate maritime zones themselves anyway.386 Consequently, they conclude that baseline policy is more likely a reflection of a desire to increase security by pushing warships further out to sea and gaining greater control of waters proximate to the coast than any desire to take over additional resources. A further effect of some of these baselines is potentially to influence maritime boundaries, by pushing an equidistance line further towards a neighbour. However, it has been shown that straight baselines are frequently not used in measuring maritime boundaries, perhaps suggesting that states have been eager not to appear to illegitimately encroach on the jurisdictions of their neighbours.387

It is also arguable that some states have sought to take advantage of the silence in UNCLOS on the particular criteria for drawing straight baselines because, far from being indifferent, they are concerned about their reputation for compliance. Indeed, expanding maritime zones by stretching the provisions on straight baselines is certainly a less brazen and more of a back door approach than, for example, simply pushing the seaward limits of the EEZ beyond 200 nautical miles. The lighthouse building efforts of China would seem to reinforce this notion. In this sense, it could be considered that these practices relating to straight baselines demonstrate the strong compliance-pull towards the stated breadths of maritime zones in UNCLOS. States would rather choose to expand their zones in a limited fashion by taking advantage of a vague provision in the Convention than by openly disobeying the otherwise very clear standards for the measurement of maritime zones. Although the few cases in which straight baselines have been drawn without any reference to the coast would seem to be clear cut cases of non-compliance, the effect of most cases of the abuse of straight baselines is comparatively small and limited in character.

Conclusion

Historically, there have been shifts between ocean enclosure and free seas, with Ancient Rome promoting the 386 Bateman and Schofield, 'State Practice', p 18. 387 Bateman and Schofield, 'State Practice', p 20.

115 latter and Early Modern Europe exhibiting the former. The freedom of the seas was once again predominant in late modern Europe, before a renewal of claims to jurisdiction over extensive maritime spaces in the mid- twentieth century. However, this binary distinction does not explain what the character of international practices during periods of ocean enclosure has been. The freedom of the seas has seemingly been associated with a general decline in conflicts over ocean space. Historically, territorial claims at sea led to major disputes and wars, but the pattern today seems entirely different. In contrast to historical practices and conceptions relating to territory, Holsti concludes, “contemporary practices... are largely consistent with the permanency of territorial demarcations,”388 and the same practices are apparent at sea. He also explains that those practices on land are associated with “conceptions and ideas of territoriality having almost sacral status, and strong norms that discourage or prevent territorial changes effected through coercion or armed conflict.”389 Whether and how these norms influence the basis of contemporary maritime policies is the subject of the next three chapters.

388 Holsti, Taming the Sovereigns, p 101. 389 Holsti, Taming the Sovereigns, p 101.

116 CHAPTER 3

TERRITORIALITY AND SECURITY

AT THE UN LAW OF THE SEA CONFERENCES

Retracing the past, man, the present dominator of the emerged earth, is now returning to the ocean depths. His penetration of the deep could mark the beginning of the end for man, and indeed for life as we know it on this earth: it could also be a unique opportunity to lay solid foundations for a peaceful and increasingly prosperous future for all peoples.

- Arvid Pardo

Power-based theories and those relating to material interests seem to be under-specified when it comes to explaining the behaviour of states towards maritime space. However, a social norm similar to territorial integrity could not have developed for the oceans in the same way as it did on land. Zacher's two bases for that principle do not translate well off shore: there has been no recent history of territorial-like conflict at sea directly to provide an instrumental basis for the norm; and the ocean is not a space to which the ethical principle of self-determination has any straightforward application. It is, however, demonstrated here that the inviolability of maritime boundaries was not actively discussed and, therefore, assumed as the law of the sea property rights order was negotiated. It was suggested above that the ocean might have been conceived as a de-securitised space in which conflict was thought absurd because it is so different to land. Alternatively, maritime space might have been constructed as sufficiently land-like for standards of behaviour relating to land to have had a stabilising effect on states' maritime jurisdictions. I find evidence for the latter.

The following chapter assesses how participants at the three twentieth century law of the sea conferences thought about and discussed maritime security. I focus on the debate relating to the territorial sea and establish that it was taken for granted as being inviolable. Moreover, jurisdiction over it was not deemed to be dependent on coercive capacity. The relationship of the territorial sea to the state is considered before

117 assessing how the security of other maritime zones has been constructed. I find that, though the boundaries of these zones were not considered objects of security themselves, this is not the result of the ocean being a de-securitised place. The ocean was certainly considered a distinct space to the land in many respects; but the spectre of territorial conflict was continually invoked during discussions relating to proposals to construct the

EEZ and continental shelf. Frequent references to the history of the land demonstrate that maritime space was considered land-like in terms of the peace and security problems that could arise there. Territoriality and the construction of legitimate boundaries was seen as the solution to the disorder created by the varying claims to maritime jurisdiction that had been made and the potential for conflict embodied in them. This suggests that conquest was viewed as a highly problematic endeavour and, consequently, that the inviolability of maritime jurisdictions was taken for granted.

The Territorial Sea, Security and the State

There is no norm of territorial integrity or anything similar stated explicitly in the UN Convention on the

Law of the Sea. The prior Geneva Conventions similarly made no mention of principles of, or akin to, territorial integrity. But this does not mean that considerations of jurisdictional inviolability were absent from the discussions that led to the formulation of those treaties. Steinberg has described how ships have been conceived as islands of civility – as extensions of the land – within the context of the ocean as a great void.390

International law continues to construct vessels as floating spaces of sovereign territory of the state in which they are registered, and non-interference with them is, therefore, a key standard. The concept of flag-state jurisdiction makes ships registered within a given state immune from the interference of foreign powers apart from in a few specified circumstances, such as if it is suspected the vessel is engaging in piracy or the slave trade.391 These norms are, unlike those relating to the inviolability of states' ocean spaces themselves, stated explicitly in the Law of the Sea Treaty. This construction reinforced the understanding of security associated with freedom of the seas, which de-securitises maritime space itself and views ships – and their mobility – as the only object of concern. However, even at the high point of the freedom of the seas era, the territorial sea 390 Steinberg, Social Construction, p 125. 391 UNCLOS, Articles 105 and 109.

118 was a major exception to the trend of constructing marine space as a great void and as a space not to be possessed and secured. This understanding was clear at the law of the sea negotiations in the twentieth century. Indeed, aside from those involving ships, some of the most prominent statements addressing issues of inviolability in the oceans took place in relationship to the status of the territorial sea.

The intellectual basis of the territorial sea has always been intimately bound up with security concerns in two distinct senses. The so-called canon-shot rule determined that its breadth in the early days of the regime was to be coterminous with the range of land-based artillery at the time. This heritage led to the territorial sea being relatively narrow, which served the interests of maritime states that wished to retain maximum freedom of navigation in part to ensure power projection capabilities. Mobile navies, unencumbered by interference on the high seas were thought to enhance the capacity of the great powers to protect their security and that of their imperial possessions. Weaker states, on the other hand, wished for a broader territorial sea precisely to keep marauding foreign powers away from their shores. This interest became particularly strong among post-colonial states and was expressed most succinctly by the representative from India to the Second UN Conference, who stated that the memory of domination by big powers was still a reality and that weaker countries were fearful of warships coming into their adjacent seas and remaining there.392 A broader territorial sea was seen as the only solution and it was a solution which assumed that this particular maritime frontier would be meaningful and respected.

Indeed, far from challenging this understanding of inviolability, the maritime states assumed it by expending much effort in trying to prevent the extension seaward of states' sovereign control. For example, they suggested that technological developments had made security as a rationale for the breadth of the territorial sea obsolete: the advent of ballistic missile technology made security scarce for everybody. 393

Maritime and fishing states insisted that this development, therefore, made a broader territorial sea of little utility. The proponents of a broader territorial sea countered, however, that such an argument merely meant

392 Statement of Mr Sen, India, 10th Meeting of the Second United Nations Conference on the Law of the Sea, Thursday 31 March 1960, in United Nations, Official Records of the Second United Nations Conference on the Law of the Sea, Geneva, 17 March – 26 April 1960: Committee of the Whole, Verbatim Records of the General Debate, p 190. 393 See for example, the statement of Mr Shukairy, Saudi Arabia, 1st Meeting of the Second United Nations Conference on the Law of the Sea, 21 March 1960, in United Nations, Official Records of the Second United Nations Conference, p 13.

119 that the justification for any particular distance could not be related to the range of artillery as it had been historically. They argued that the security-rationale of the territorial sea remained intact and emphasised how crucial it was to them.

Particularly during the Second Conference on the Law of the Sea, maritime states further warned about the lack of capacity for some states to secure and police an extended territorial sea. But this was, tellingly, mostly not of concern to its proponents, conceivably conscious that the world had moved on from the days in which the capacity to engage in coercion underwrote jurisdiction. Indeed, the canon shot rule is perhaps revealing of the way ocean jurisdiction was thought about historically – the concept that a state could gain control of a space that it was not able effectively to police and secure was incongruous within a normative context that recognised the central role of force and coercion in international relations.

Discussions relating to the modern territorial sea, however, suggested a divorce from these old concerns and reinforced the inviolability of the territorial sea boundary regardless of any material capacity to enforce it.

Consequently, the security-based reasoning relating to the territorial sea was, in essence, the reverse of that which had prevailed historically: the capacity of states meaningfully to secure their coastal waters fell out of favour as a justification for its breadth, while its role in keeping foreign powers away was highlighted – a notion which assumed inviolability without regard to military capacity.

In sum, it would appear that the security of ocean space and the inviolability of maritime boundaries was taken for granted in relationship to the territorial sea. However, this is conceivably unsurprising, for the territorial sea is a sovereign space of the state and, consequently, its inviolability would be incorporated into the territorial integrity provisions of the United Nations Charter and other legal documents, including the

San Remo Manual. It could be argued, then, that this finding merely ties up a loose end by suggesting that it is all state territory in a legal sense, rather than simply that on dry land that is perceived to be inviolable because of the territorial integrity norm. States, on this account, would have not mentioned the principle because it was already enshrined in law. The relationship of the rest of states' maritime jurisdictions to the norm remains undetermined on the basis of this logic.

However, the finding appears more significant considering that the genesis of the territorial integrity

120 norm was related to the land-based experience with territorial conflict and the land-based principle of self- determination, neither of which apply in any straight forward sense in the territorial sea anymore than they do further off shore. This, at least, provides a basis for contemplating the notion that other maritime zones might be considered equally inviolable. However, the way the territorial sea was conceived, again, undermines this logic. It was conceived in a wholly different way to terrestrial space which means that the norm as it relates to the territorial sea cannot be said to be supported by precisely the same thinking as that on land. Additionally, the territorial sea is intimately related to the coastal state, which makes it, and the reasons for its perceived inviolability, distinct from the maritime zones further offshore as well.

Indeed, although the Saudi Arabian delegation argued that battleships entering the territorial sea were the equivalent of the movement of an army through a foreign state's land territory, it is clear that this was not a majority view.394 Despite the growing move towards territorialisation of the oceans among some states, even the most active adherents of a broader territorial sea constructed the security of it in terms quite different to land. The Representative from the United Arab Republic made clear the purpose of the calls for a broader territorial sea. The summary of his speech says:

Recent development in military technique make it necessary for the coastal State to safeguard its national security through the adoption of a reasonably wide limit, which would ensure that military vessels and aircraft of foreign countries do not sail in or fly over areas closely adjacent to the coast of the State, in a manner intended as a demonstration of military power, and likely to exert political pressure on the Coastal State, or endanger its security.395

Several other states reflected similar sentiments. Consequently, the territorial sea has been constructed as something of a buffer designed to insulate the primary referent of security – the coastal state – from external threats. This understanding of the role of the territorial sea is also reflected in the “innocent passage” provisions in UNCLOS, which have no analogue in the international law applicable to state sovereignty over land. Therefore, although it is a space that is technically indistinguishable in legal terms from the land, the

394 Statement of Mr Shukairi, Saudi Arabia. 42nd meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 11 April 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Volume III, 1st Committee (Territorial Sea and Contiguous Zone), p 130. 395 Statement of Mr Hassan, United Arab Republic, 17th meeting of the iSecond United Nations Conference on the Law of the Sea, 6 April 1960, in United Nations, Official Records of the Second United Nations Conference, p 309 (emphasis added).

121 international community has rights in the territorial sea that reflect its distinct practical and social construction.

Although its inviolability was assumed, the territorial sea was emptied of independent social value: it was at once set apart from the state but accorded meaning by its relationship to it and concepts associated with it. Indeed, the ocean proximate to the coastal state is a dependent space, playing a supporting role in helping to secure the self-determination and political independence in the primary space of the state. Thus, because maritime space is not in reality detached from the state and its territory, self-determination accords significance to it – or at least portions of it – despite the absence of a permanent population there. That the territorial sea would seem to be conceived of as inviolable, therefore, could be said to be the result of a similar norm of territorial integrity to that identified by Zacher – not because the territorial sea is, like land, accorded significance by its direct relationship to a people, but because it is ocean accorded significance by its relationship to land.

However, maritime space, on this understanding, is not securitised for its own sake. Indeed, states did not register any concern that the territorial sea could be subject to an act of conquest independently of the land. In other words, the security of the territorial sea is not conceived in land-like terms, which suggests that the zones further offshore might be even less likely to be conceived in such a way. Indeed, these zones have no comparable role in protecting the state, so the notion that their sanctity might have been considered a top priority seems even more unlikely.

That said, the lack of independent value and security concern placed on other maritime zones should not be assumed because of this apparent construction in relationship to the territorial sea. For the territorial sea plays a unique role among maritime zones which means discussions relating to it were almost guaranteed to be dominated by the traditional land-based geopolitical discourse that depoliticises the oceans. Moreover, the territorial sea is the smallest of the maritime zones and would provide little in the way of reward – and perhaps a great deal of cost – for a would be conqueror. Thus, though the territorial sea was taken for granted as being inviolable, its unique role and characteristics have little to tell us about the more expansive maritime zones further offshore.

122 Security and the Zones Beyond the Territorial Sea

Security concerns also abounded on the oceans beyond the territorial sea. The high seas were reserved for peaceful purposes in UNCLOS but, again, this does not signal that its framers were concerned with the stability of boundaries.396 It was clear that states were predominantly worried that the ocean might increasingly become a theatre of the Cold War, which was primarily a traditional contest relating to the politics of the land and the states that inhabit it. Indeed, underlining the peaceful purposes provision in

UNCLOS was the old conception of the ocean as a theatre of potential conflict between land-based states, rather than an object of military competition independent of this association with land. The Albanian delegation, among others, pointed to the growing tensions that were being created in the Mediterranean by the naval forces of the two superpowers and their bases, and various countries promoted the idea of the

Indian Ocean as a zone of peace.397 This conception of ocean security reflects the differences between ocean and land rather than their similarities. Moreover, the maritime zones that were created further seaward of the territorial sea were conceived differently to that of both the land and the territorial sea.

Indeed, zones beyond the territorial sea have been conceived as having a very different purpose and significance to coastal waters. Reflecting this status, although a handful of states sought to extend full sovereign control to the ocean up to a much greater distance, there was a broad international consensus that the freedom of the seas for navigational purposes was in the interests of the world community throughout the three conferences on the law of the sea. Indeed, many states were keen to gain exclusive control over the resources further off their coasts, but recognised that full sovereignty was not necessary to achieve this aim.

Instead, sovereignty was understood as a bundle of rights that could be disaggregated in order to afford states jurisdiction over resources rather than the ocean as a whole. Consequently, the call for maritime zones beyond the territorial sea was not justified in terms of security – at least not in its military sense – and

396 UNCLOS, Article 88. 397 Statement of Mr Plaka, Albania, 27th meeting of the 2nd session of the Third United Nations Conference on the Law of the Sea, 3 July 1974, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. I, Summary Records of Meetings (New York: United Nations, 1975), p 99; Statement of Mr Raharijaona, Madagascar, 28th meeting of the 2nd session of the Third United Nations Conference on the Law of the Sea, 3 July 1974, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. I, p 106.

123 sovereignty was not seen as a desirable means of control. This understanding reinforced the differences between land and sea and could be understood to reflect a lack of concern for the security of these spaces.

This is perhaps unsurprising given the construction of ocean space beyond the territorial sea as even more devoid of social value than the coastal waters of the territorial sea.

In contrast to the social value of land as a home, the whole raison d'etre for jurisdiction over ocean spaces was to gain access to the resources within them. The evolution of the maritime property rights regime began in earnest in 1945 with the Truman Continental Shelf Proclamation, which stated that “recognized jurisdiction over these resources is required in the interests of their conservation and prudent utilization...” 398

Similar wording in relation to the exploitation of resources is present in both the 1958 Continental Shelf

Convention and UNCLOS, which expanded these rights to the water column. The maritime zones beyond the territorial sea have thus been constructed as an archetypal commercial space – states possess an Exclusive

Economic Zone and exercise “sovereign rights for the purpose of exploring and exploiting” the natural resources there and on the continental shelf.399 Even fisheries have been thought of as “living resources” a construction that might not be thought so common on land with regard to farm animals. It could be concluded that this construction of the ocean is more in line with the historic conception of territory as a personal commodity that underlined the practices of sale, conquest and exchange than with territorial integrity.

Indeed, eager to begin to exploit areas of marine space known or suspected to be rich in resources, states have sometimes agreed to set up distinctive arrangements within economic zones at sea that would be out of place on most land. Though by no means common, joint development arrangements have been a solution to disputes over maritime space and involve several different models of cooperation ranging from revenue sharing to the establishment of commissions to oversee development of the resources of a given zone.400 Arrangements within maritime space such as these hardly conform with a construction of the ocean,

398 Truman, 'Proclamation 2667'. 399 UNCLOS, Article 76. 400 See Hazel Fox, Paul McDade, Derek Rankin Reid, Anastasia Strati, Peter Huey, Joint Development of Offshore Oil and Gas: A Model Agreement for States for Joint Development with Explanatory Commentary, (London: British Institute of International and Comparative Law, 1989). See also David M. Ong, 'Joint Development of Common Offshore Oil and Gas Deposits: 'Mere' State Practice or Customary International Law?' The American Journal of

124 like land, as a place to be secured and fought for at all costs, not simply surrendered, exchanged, bought or conquered in whole or in part for the purposes of economic exploitation.401 Indeed, discussion of the security of these spaces was far removed from the kinds of discourses we would expect if they were on land. The

EEZ and continental shelf were not even conceptualised as objects of security.

Instead, the central provision made for security within the offshore jurisdictions of coastal states concerns the installations used to extract resources. The Geneva Convention permitted coastal states to

“establish safety zones around such installations and devices and to take in those zones measures necessary for their protection.”402 Article 60(4) of UNCLOS includes a similar provision allowing states to “establish reasonable safety zones around... artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures.”403 Even this provision hardly indicates a concern that such installations might be forcefully taken over by a foreign power, though contemporary naval doctrine certainly conceives of and prepares for such an eventuality.404 These provisions and practices construct offshore installations in a similar way to ships: it is they that are the object of at least implicit security concerns, rather than the ocean zones in which they are located themselves.

In sum, though the security of offshore installations was provided for in UNCLOS, there was never even any discussion of the need to secure offshore jurisdictions and their boundaries beyond the territorial sea, either in the treaty itself or in the public statements of officials as they created these new maritime zones.

The construction of ocean space as an economic realm, combined with the lack of recent history of territorial conflict at sea might suggest that an explicit territorial integrity norm would not have been on the minds of

International Law, 93:4 (1999), pp 771-804. 401 Though it should be noted there are a few condominiums on land, such as that relating to the Svalbard Archipelago, but these are exceptional and often relate to distant, harsh lands like the Antarctic. Moreover, these arrangements also emerged after conquest had become illegitimate, suggesting that international society considered it valuable to deal with these territories in unique ways within this normative context. 402 Convention on the Continental Shelf (Geneva, 29 April 1958) 499 U.N.T.S. 311; 15 U.S.T. 417; T.I.A.S. No. 5578 entered into force 10 June 1964, Article 5(2). 403 UNCLOS, Article 60(5). 404 NATO's Operation Cold Response in 2009 contained a scenario in which the sea areas of a fictional country were conquered. See 'Defence Training Gets Warm Response from Nordic Countries', European Voice, 26 March 2009, available at: {http://www.europeanvoice.com/article/imported/defence-training-gets-warm-response-from-nordic- states/64414.aspx} accessed on 20 September 2013.

125 the framers of the various law of the sea treaties. It is clear, however, that a de-securitised and instrumental conception of ocean space was not the reason for a lack of focus on the security of maritime boundaries. In fact, it was precisely concerns about the possibility for territorial conflict to develop over ocean space that drove efforts to build a widely recognised property rights order at sea. This understanding suggests that a norm similar to territorial integrity was assumed at sea because of a construction of the ocean, not as different to land, but – at least in terms of security issues – as similar.

The disorder precipitated by unilateral extensions of sovereignty over large ocean areas in the 1950s and 1960s was seen as a major source of tension. For example, the controversy over the breadth of the territorial sea and fishing zones was considered to embody the potential for conflict. At the Second

Conference, the Philippines' delegation articulated the international community's fears. The official records summarise the representative's statement:

Unless there is an acceptable determination of the portion of the sea over which the sovereignty of the coastal State must be recognized by other States, incidents like those between Iceland and the United Kingdom and between Korea and Japan may be repeated in many other parts of the world. 405

He was referring to the Cod Wars and a fisheries dispute that had developed between Korea and Japan when the former extended its claim to sovereignty over 100 miles of ocean space off its coasts, including the disputed Liancourt Rocks. Thus, the representative blurred the implications of territorial and maritime disputes, implying their results would be of equal concern.406

The disorder in the oceans refused to abate after the failures of both the first and second conferences to bridge the differences of those favouring broader zones of national control in the oceans and those favouring the continuation of the freedom of the seas. Technology was developing rapidly, raising the spectre of almost limitless claims of national jurisdiction over the seabed and subsoil beyond the continental shelf.

The realisation that an era of conflict relating to the sea-bed might be imminent began to be transmitted throughout international society and thinking about the seabed – in terms of conflict at least – as a land-like

405 See the statement of Mar Tolentino, Philippines, 5th meeting of the Second United Nations Conference on the Law of the Sea, 25 March 1960, in United Nations, Official Records of the Second United Nations Conference, p 71. 406 For further details, see Hollick, US Foreign Policy, pp 166-167. On the South Korea-Japan dispute, see Kunz, 'Continental Shelf', p 833.

126 place became commonplace. Nowhere was this conception clearer than in relationship to concerns over the future status of the deep seabed beyond the geological continental shelf.

In July 1966, when commissioning a new research ship, President Lyndon Johnson made the following statement in relationship to ocean resource exploitation:

Under no circumstances, we believe, must we ever allow the prospects of rich harvest and mineral wealth create a new form of colonial competition among the maritime nations. We must be careful to avoid a race to grab and to hold the lands under the high seas. We must ensure that the deep seas and the ocean bottoms are, and remain, the legacy of all human beings.407

Thus, although there had been no recent history of territorial conflict in the ocean, decision-makers were very clearly motivated by the potential for conflict to break out over ocean space distant from the coast: at least in relationship to the seabed. Moreover, the kind of conflict they envisaged was to all intents and purposes identical to territorial conflict, evinced by Johnson's reference to colonialism and the “lands under the high seas.” It was these fears that catalysed a renewed effort to bring order to the oceans. In his milestone speech to the UN General Assembly, Arvid Pardo – the so-called father of the law of the sea – expanded on the concerns articulated by Johnson the previous year.408

He raised the spectre of “incalculable dangers for mankind as a whole were the deep sea-bed and ocean floor beyond present national jurisdiction to be progressively and competitively appropriated...” 409 A primary concern related to the forecast military utility of the sea-bed, which, Pardo was concerned, could lead to an alteration of the traditional constraints on the use of the sea with the seabed itself becoming an arena of strategic conflict. The boundary between the view of the ocean as a space to be fought over for its own sake and as a space on which to fight battles relating to land was blurred as Pardo forecast that nations would seek to take and hold strategic areas on the ocean floor to improve their security. Importantly, he, again, referenced historical experiences with the land. He warned:

The process has already started and will lead to a competitive scramble for sovereign rights over the land

407 Quoted in Peter Prows, 'Tough Love: the Dramatic Birth and Looming Demise of UNCLOS Property Law (and What is to be Done About it)', Texas International Law Journal, 42:2 (2007), pp. 241-309, p 256. 408 Statement of Arvid Pardo, 22nd session of the United Nations General Assembly, 1 November 1967. 409 Statement of Arvid Pardo, 22nd session of the United Nations General Assembly, 1 November 1967, para 5.

127 underlying the world's seas and oceans, surpassing in magnitude and in its implication last century's colonial scramble for territory in Asia and Africa. The consequences will be very grave: at the very least a dramatic escalation of the arms race and sharply increasing world tensions... Between the very few dominant Powers, suspicions and tensions would reach unprecedented levels.410

Thus, Pardo drew an exact analogy between land and sea in terms of security. Far from being de-securitised and a place where territorial conflict was not of concern, the unapportioned seabed was constructed as embodying an identical capacity to be the site and object of wars of conquest.

Indeed, directly constructing parts of ocean space in land-like terms was common in early efforts to exert national jurisdiction there prior to the Truman Proclamation. When Britain sought to extend its control to the resources of the continental shelf off Trinidad and Tobago in 1942, the Order in Council was entitled the “Gulf of Paria (Annexation) Order”.411 It provided that the areas were “annexed to and forming part of

His Majesty's Dominions”.412 Clearly, annexation, as a concept, is closely associated with land, but the continental shelf was conceived precisely as land that was submerged.

The International Court of Justice further developed this concept of the continental shelf as intimately connected to land territory: in the North Sea Continental Shelf cases, the court stated that

“although covered with water, [continental shelves] are a prolongation or continuation of [the state's] territory, an extension of it under the sea.”413 This notion that the continental shelf was the natural prolongation of a state's land territory also found its way into UNCLOS, which states that “The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin...”414 Thus, despite the inherent difficulties of occupation and of the commercial construction of marine space, the seabed was nonetheless framed as land-like and this construction carried over to concerns about the type of conflict that might occur there. However, though there is an inherent logic to viewing the ocean floor as indistinguishable in a material sense from land territory, this construction is by no means as

410 Statement of Arvid Pardo, 22nd session of the United Nations General Assembly, 1 November 1967, para 91. 411 Submarine Areas of the Gulf of Paria (Annexation) Order, August 6, 1942, (Statutory Rules and orders, 1942, Vol. I, 919). 412 Submarine Areas of the Gulf of Paria, Section 1. 413 North Sea Continental Shelf, para 43. 414 UNCLOS, Article 76(1).

128 straightforward with regard to the water-column.

Nevertheless, Pardo's warning had a persuasive effect as the General Assembly resolved to call the

Third United Nations Conference on the Law of the Sea, at which many issues in addition to the deep sea- bed beyond national jurisdiction were addressed. The Third Conference was seen not only as an exercise in codification of the law, as had been the majority view of the first two conferences, but rather as an opportunity for international society to engage in a wide-ranging act of legislation. 415 Consequently, there were no draft articles produced by the International Law Commission. Instead, the calls for more extensive exclusive rights over the resources of the water-column had been adopted by almost all of the weaker members of international society and momentum built for the enclosure of, not only the sea-bed, but also of large areas in which states would exercise exploitation rights over fisheries. These moves had, for long, been resisted by the maritime fishing states, seeking, as they did, to maintain the freedom of the seas.

At the First Conference on the law of the sea in Geneva in 1958, the fisheries issue was predominantly conceived of as one of conservation. The Third Committee examined how the international community might prevent over-fishing, which was beginning to result from new fishing methods. Though a minority of states sought to advance claims to broader exclusive national jurisdiction over fisheries as the solution to the problem, the maritime fishing states continued to stress the benefits of the old concept of the freedom of the seas. They favoured international regulation and the preservation of the rights of all states to engage in fisheries without regard to geographic location.416

In order to advance their preferred method for conserving the living resources of the sea, the maritime fishing states emphasised the impracticality of simply apportioning jurisdiction over the oceans to states. The basis of the freedom of the seas for Grotius had been in part the inability effectively to possess marine space, in direct contrast to the land; the positions of the maritime fishing states reflected similar thinking in relationship to fisheries. For example, the summary of the statement of the United Kingdom

415 Tommy T.B. Koh and Shanmugam Jayakumar, 'The Negotiating Process of the Third United Nations Conference on the Law of the Sea', in Myron H. Nordquist, Shabtai Rosenne and Satya N. Nandan, United Nations Convention on the Law of the Sea, 1982: a commentary, (The Hague: Kluwer Law International, 1995), p 37. 416 See, for example, the statement of Sir Reginald Manningham-Buller, United Kingdom, 5th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 5 March 1958, in United Nations United Nations Conference on the Law of the Sea: Official Records, Vol. III, pp 10-11.

129 representative said, “exclusive fishery zones marked out on maps would not bring a stock of fish under the effective control of a particular State.”417 Fish did not respect boundaries and the ocean was better thought of in ecological than territorial terms.

For the developing countries, however, fisheries were as much an economic as an environmental issue. Many of the Latin American and some Soviet Bloc states pointed to the situation of developing states competing on unequal terms with the industrialised states in terms of their capacity to engage in fishing. 418

The water-column, in this argument, was again framed as an economic space, rather than a land-like one.

Additionally, the delegation from Uruguay enunciated a central justification of the developing coastal states' view that there should be greater national control of the oceans: the relationship between the water column and the continental shelf, the resources of which had already been brought under exclusive state jurisdiction.

Uruguay's representative was summarised as saying: “It was scientifically and legally illogical to accept the principle of sovereignty over the seabed and at the same time to insist on the absolute freedom of the superjacent waters. The seabed stood in the same relation to such waters as a country's territory did to the superjacent air space.”419 In this statement, the water-column was distinguished from the continental shelf and not viewed as land-like in contrast to the sea-bed, even though the delegate lobbied for the same legal regime to be applicable to both, as they are in the case of land and airspace.

By the time of the Third Conference on the law of the Sea, however, the decolonisation movement had increased the numbers of states in the international community substantially, and many new members were impoverished. The momentum for the resources of the water column to come under national control gathered pace. Given the number of new, post-colonial states entering the system, it was natural that the experience of, and discourses relating to, colonialism would begin to be reflected in the oceans broadly. On

417 See the statement of Sir Reginald Manningham-Buller, United Kingdom, 5th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 5 March 1958, in United Nations United Nations Conference on the Law of the Sea: Official Records, Vol. III, pp 10-11.. 418 See, for example, the statement of Mr Llosa, Peru, 23rd meeting of the third committee of the First United Nations Conference on the Law of the Sea, 8 April 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V: Third Committee (High Seas: Fishing: Conservation of Living Resources), p 57. 419 See the satement of Mr Carbajal, Uruguay, 5th meeting of the 6th committee of the First United Nations Conference on the Law of the Sea, 7 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI: Fourth Committee (Continental Shelf), p 5.

130 this construction, it was not only the seabed that was deemed to be like land in terms of its potential to be subject to colonial competition and division; the whole ocean was formulated as a space in which these land- based experiences could be relived if it remained unregulated. The summary of the Costa Rican statement at the opening plenary of the Third Conference reflects this trend and is worth quoting at length:

All parts of the planet above water had already been discovered, or at least demarcated within national boundaries. But the world was on the threshold of a new era; scientific progress was opening up to humanity the only territories that had not yet been conquered - the sea-bed and the ocean floor with an area more than twice that of the land. Those new territories and the waters above them contained biological and mineral wealth that was essential for the survival of the human race, which was already expanding beyond the land available to it. The Conference had to ensure that no colonial systems would be established similar to those used in the past by the great powers to exploit lands which they had brought under their domination. The task ahead was to formulate for the sea the system of international social justice that mankind had so far been unable to establish on the land.420

This extension of the colonialism and territorial conquest analogy to ocean space as a whole underpins a sense that all ocean space could be viewed in land-like terms, even if some states at various points in the construction of the law of the sea property rights regime preferred to lean on a construction of it as an alternative, ecological or economic realm. Indeed, the efforts of maritime fishing states to construct the waters of the oceans in this way can only be understood in the context of their appreciation that the ocean was wholly capable of being viewed in the alternative, land-like fashion. It was precisely this that they – ultimately unsuccessfully – had hoped to resist.

Indeed, the General Assembly in calling the Third Conference on the law of the sea had emphasised that the ocean simply could not be viewed in a compartmentalised fashion as had been done in the 1950s: it was a unified whole and the same concerns underlined thinking about the continental shelf and the superjacent waters.421 The security concerns relating to the superjacent waters beyond the territorial sea were, then, seen as no different to the continental shelf itself. The summary of the United Kingdom representative's

420 See the statement of Mr Facio, Costa Rica, 14th meeting of the 2nd session of the Third United Nations Conference on the Law of the Sea, 20 June 1974, United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. I, p 39. Emphasis added. 421 The General Assembly stated that it was "Conscious that the problems of ocean space are closely interrelated and need to be considered as a whole." Resolution 2750 (XXV) 'Reservation exclusively for peaceful purposes of the seabed and the ocean floor, and the subsoil thereof, underlying the high seas beyond the limits of present national jurisdiction, and the use of their resources in the interests of mankind and convening of a conference on the law of the sea' United Nations General Assembly, 25th s. 17 December 1970.

131 statement reflected this view:

The Conference might be the most important international conference ever held. Despite conflicts throughout history over the control of land, most nations today lived in secure frontiers. But too many lived in dire poverty, and the gap between rich and poor was widening. In past centuries the map of the world's land mass had been carved up, and recent history had seen people fighting to achieve their freedom from alien domination and exploitation. In the future, however, unless the Conference succeeded in securing an effective and acceptable regime, it was the sea that could become an arena of world conflict.422

The potential for the inadequately regulated ocean as a whole to emerge as a site and object of territorial-like conflict, therefore, was uppermost in the minds of the framers of the contemporary law of the sea.

Thus, despite its marked physical and social distinction, the ocean was conceived in terms of its security as quite similar to land. Although national ocean jurisdictions have not been viewed as an object of security themselves, this is not because the ocean as a whole is de-securitised and treated in a purely instrumental fashion. Rather, boundaries have not been viewed as needing to be secured because the undesirable historical experience with land meant the inviolability of the proposed maritime zones was taken for granted. Indeed, at the Third Conference on the Law of the Sea, the construction of a territorial-like order in the oceans was seen precisely as a solution to disorder that might emerge in its absence. For example, the

South Korean delegation raised the spectre of conflict at sea and contrasted it with second a vision of peace and good order. The summary of the speech says: “to bring about the second alternative, a new and viable international order designed to meet the interests of all countries, whether small or large, developing or developed, coastal or land-locked, would have to be established.”423 The delegation went on to support the creation of a 200 mile Exclusive Economic Zone and the designation of the deep sea-bed as the common heritage of humanity. The concept that the society of states would have constructed a territorial-like order at sea as a solution to the problem of conflict there and yet to have not considered these jurisdictions as inviolable would be absurd.

422 Statement of Mr Ennals, United Kingdom, 29th meeting of the 2nd session of the Third United Nations Conference on the Law of the Sea, 4 July 1974, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. I, p 110. This view was widely shared within academia. See Kunz, 'Continental Shelf', p 838 who pointed to the behaviour of Latin American states in the 1950s as a likely source of future conflict. 423 Statement of Mr Song, Republic of Korea, 26th meeting of the 2nd session of the Third United Nations Conference on the Law of the Sea, 2 July 1974, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. I, p 90.

132 Emphasising the sense of international society having moved on from the days in which conquest and power rather than legality reigned, as had been the case with the territorial sea, the ocean regime as a whole was not to be underpinned by coercion and power politics. Jurisdiction over the continental shelf, for example, explicitly was not to depend on effective occupation.424 Rather the regime governing it and the rest of marine space would be brought into line with the more progressive and modern understanding of appropriate behaviour in international society that eschewed such backward behaviour. The summary of the

Ecuadorian statement reflected this idea in relationship to the seabed beyond national jurisdiction: “The idea of the high seas that had been imposed at a time where 'might is right' had given way to a more humane and equitable doctrine: within that area, the sea could not be subject to arbitrary decisions and its resources could not be the subject of any act of appropriation, since they belonged to mankind.” 425 Yugoslavia echoed this view: “The time had passed when problems of raw materials and access to natural resources were resolved by force and war, and a new era was beginning in which conflicts would be settled by peaceful means.” 426 It was clear that the practices that had led to the historical apportionment of the land were seen as deviant and backward-looking. Conquest at sea, in short, was not legitimate and ocean jurisdiction was not to be based on capacity to coerce, but on respect for the law.

Conclusion

In the run-up to the third Law of the Sea Conference in 1975, Henry Kissinger said “We are at one of those rare moments when mankind has come together to devise means of preventing future conflict and shaping its destiny rather than to solve a crisis that has occurred or to deal with the aftermath of war.” 427 He also said that “failure to reach legal consensus, will lead to unrestrained military and commercial rivalry and mounting

424 UNCLOS, Article 77. 425 Statement of Mr Valencia Rodriguez, Ecuador, 29th meeting of the 2nd session of the Third United Nations Conference on the Law of the Sea, 8 July 1974, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. I, p 122. 426 Statement of Mr Vratusa, Yugoslavia, 26th meeting of the 2nd session of the Third United Nations Conference on the Law of the Sea, 2 July 1974, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. I, p 92. 427 Quoted in Sebenius, Negotiating the Law of the Sea, p 80.

133 political turmoil.”428 Thus, in sum, though the ocean and land have been constructed as very different social and economic spaces, the security challenges – and modern solutions – within both realms are conceived in similar terms. Though ocean jurisdictions have not been viewed as spaces needing to be secured in their own right from acts of conquest, this is not because ocean space as a whole is de-securitised and considered a realm immune from unrestrained territorial competition. In fact, the possibility that this scenario could play out in the oceans was widely apprehended as maritime boundaries were constructed at sea. The construction of maritime boundaries was seen as a solution to disorder and potential conflict there. This understanding was informed by the experience with land and the sanctity of maritime jurisdictions was taken for granted within this context.

This is most clear with regard to the territorial sea, which has been deemed to play a central role in security for the coastal state and has, therefore, been a sovereign space for centuries. In the twentieth century, the basis of its spatial extent was, however, divorced from the ability effectively to control it as states no longer considered power and coercive capacity to underwrite their jurisdictions due to similar developments with regard to land space. The territorial sea, as a sovereign space and playing a very direct role in securing the state might be considered a special case in which concepts of territorial integrity operate despite it not being land, and notwithstanding its very different social construction to land. Indeed, this difference in social construction is reflected in the existence of rights of innocent passage for foreign ships. However, it is clear that the continental shelf and sea-bed have also been considered in land-like terms – perhaps even more explicitly than the territorial sea.

Consequently, it might be concluded that the instrumental basis cited by Zacher for the norm of territorial integrity underpins the assumption of the inviolability of states' maritime zones. This situation prevails despite the lack of recent experience with maritime territorial conflict. The illegitimacy of conquest at sea was, instead, assumed because of the negative past experience with land and the recognition of the possibility of it taking place at sea in the future in the absence of a settled maritime property rights order. It is this framing which suggests that the ocean order has been stable because of more than simply the general

428 Quoted in Sebenius, Negotiating the Law of the Sea, p 83.

134 declining legitimacy of war. As discussed above, the norm proscribing conquest is one of the few relating to aggression that is widely supported and admits of no derogation, suggesting a relatively strong basis for the maritime order. Conquest, whether on land or at sea, would seem to be a particularly pernicious practice that is understood to be a serious threat to international order. That said, the territorial integrity norm on land has more than an instrumental logic: it also has an ethical underpinning that cannot be extrapolated straightforwardly to reinforce the proscription of conquest at sea. This might imply the greater robustness of the territorial integrity norm on land than an equivalent logic at sea.

To be sure, self-determination plays a key role in legitimising and depoliticising the territorial order itself, thereby continuing to underpin the territorial integrity norm as well as accounting for its emergence.

The ocean, in contrast, lacks the same social value as land and is considered little more than a commercial, instrumental realm. These differences between land and sea might provide states with opportunities to challenge the norm. The instrumental construction of maritime space in contrast to the idea of a state's territory as a sacrosanct homeland might also provide a less compelling reason for international support for the norm in the event that it is challenged. Consequently, the territorial integrity norm, as a bundle of understandings about legitimate behaviour on land, can still be distinguished from the norm regulating maritime space, despite their similarities. That said, although self-determination as a principle can have no straight-forward meaning at sea, it is not the case that maritime space was apportioned last century in a normative vacuum. States understood peaceful oceans not only to be the product of a definite maritime property rights order, but also a just one.

Indeed, a legitimate and taken for granted territorial order is surely the basis for a strong territorial integrity norm and the two might be said to be interdependent. The summary of the statement from the

Pakistani delegation at the third conference made this interdependence between the legitimacy of the territorial distribution and territorial integrity clear – in relationship to the oceans, it said: “Unless its various uses were regulated in a just and equitable manner the sea would turn into an arena of struggle and conflict.”429 Similarly, President Nixon summarized the crucial questions during the Law of the Sea 429 The statement of Mr Kharas, Pakistan, 35th meeting of the 2nd session of the Third United Nations Conference on the Law of the Sea, 10 July 1974, in United Nations, Third United Nations Conference on the Law of the Sea: Official

135 Conference as being:

whether the oceans will be used rationally and equitably and for the benefit of mankind or whether they will become an arena of unrestrained exploitation and conflicting jurisdictional claims in which even the most advantaged states will be losers... The stark fact is that the law of the sea is inadequate to meet the needs of modern technology and the concerns of the international community. If it is not modernized multilaterally, unilateral action and international conflict are inevitable.430

Indeed, a property rights order at sea was established to bring order to the oceans to prevent territorial conflict, and that order itself eschewed the history of territoriality on land by allocating marine space, not through the use of force, but through the operation of law, founded on legitimate principles.

As we will see in more detail in the next chapter, the history of territoriality affected not only the regulation of marine jurisdictions, but their very constitution. Post-colonial, weak states and great powers alike all recognised that a legitimate order would have to be built to secure the future peace of international society. The key alternative – informed by the experience with land – was to repeat the historical, colonial system of the allocation of geographical space. This system was understood as undesirable both because of the role of force in it and the inequitable results that occurred. Indeed, force and equity were conceived as mutually exclusive, while law and equity were viewed as mutually supportive.

Clearly, the delegates to the law of the sea conference, in creating a constitution for the oceans, thought they had achieved the goal of securing future peace at sea. The preamble to UNCLOS stated the awareness of the delegates “of the historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world...” and their belief “that the codification and progressive development of the law of the sea achieved in this Convention [would] contribute to the strengthening of peace, security, cooperation and friendly relations among all nations...”431

The question, therefore, is why they thought they had achieved a legitimate order that fulfilled this goal.

On land, the doctrine of self-determination and the notion of territory as a homeland are what give the set of boundaries that currently exist normative significance, but the sea is not a homeland, so this

Records, Vol. I, p 146. 430 Cited in Buzan, Seabed Politics, p 114. 431 UNCLOS, Preamble.

136 principle can play no straightforward role there. Moreover, though the territorial sea clearly possesses a moral purpose in so far as it supports the security and, therefore, self-determination of the primary space of the state, this relationship is not so direct with the other maritime zones. Therefore, at sea, while boundaries may play an important ordering role, it is not clear why the particular set of boundaries that were constructed should have any particular normative significance. The question, therefore, remains open: why did the delegates at the Third Conference on the Law of the Sea, understand the order that was created as one that would contribute to peace and security?

137 PART II

THE POLITICAL CONSTRUCTION OF JURISDICTION OVER RESOURCES AT SEA

138 CHAPTER 4

EARLY MOVES: DEFINING THE CONSENSUS

The Geneva Conference on the Law of the Sea was convened on February 24, 1958, and finally adjourned on April 28, 1958. Four conventions emerged from the Conference after much discussion, debate and toil... These conventions encompassed a surprisingly large area of agreement.

- Arthur Dean

Some international relations theories – notably neorealism and neoliberalism – posit that cooperation between states is instrumental and driven by their interests and material capabilities in a system without central authority. As James Caporaso neatly summarises, social theories of international relations take issue with this characterisation,

The social conception of the interstate system implies a different understanding of cooperation. The fundamental starting point is not atomistic interaction within anarchy. The basic question is not how to cooperate and to derive rules, norms, and sociality from a rule-free, normless state of nature. Rather, the starting point is a social conception of the actors, and the basic questions have to do with how the system of states can reproduce itself, what tensions it incorporates, and what capacity it has for altering its structures and rules to deal with changing environmental pressures.432

Caporaso concludes that a social approach introduces “structure and behavior that draw on habitual, preconscious, taken-for-granted understandings.”433 Other scholars, too, have noted that power distributions do not straightforwardly determine institutional forms.434

432 James A. Caporaso, 'International Relations Theory and Multilateralism: The Search for Foundations', in John Gerard Ruggie (ed), Multilateralism Matters: The Theory and Praxis of an Institutional Form, New York: Columbia University Press, 1993), pp 51-90, p 78. 433 Caporaso, 'International Relations', p 83. 434 John Gerrard Ruggie, 'Multilateralism: The Anatomy of an Institution', in John Gerard Ruggie (ed), Multilateralism Matters: The Theory and Praxis of an Institutional Form, (New York: Columbia University Press, 1993), pp 3-48, Christian Reus-Smit, The Moral Purpose of the State: Culture, Social Identity and Institutional Rationality in International Relations, (Princeton: Princeton University Press, 1999), p 4.

139 Reus Smit's study of the changing fundamental constitutional structures of international societies takes a similar approach. His work embodies an analysis of the “deep-seated normative and ideological assumptions that lead states to formulate their interests within certain bounds, making some actions seem mandatory and others unimaginable.”435 He compares and contrasts different historical international communities to establish what those deep constitutional structures were and how they influenced actors' assessments of what was possible and desirable. Constitutional structures, fundamental institutions and issue- specific regimes are the three normative structures that make up international society, according to Reus-

Smit, with the first being the most basic. Constitutional structures comprise “constitutive values that define legitimate statehood and rightful state action.”436 Fundamental institutions reflect these structures and

“encapsulate the basic rules of practice that structure how states solve cooperation problems.”437 Finally, issue-specific regimes “enact basic institutional practices in particular realms of interstate relations.” 438 The

Law of the Sea Convention is an example of a treaty that codifies an issue-specific regime and the following argues that it is underpinned by more basic notions of appropriate conduct that were taken for granted when it was negotiated. In combination with the illegitimacy of conquest, these norms reinforce compliance with the maritime property rights order and discourage challenges to it.

The Social Construction of Marine Resource Jurisdictions

The dominant historical construction of the ocean was that it was a great void, without any real social significance.439 Though it is increasingly conceived of as an environmentally significant space, 440 as the marine property rights order was established, the ocean was largely constructed as an economic and commercial realm. It was to be exploited – or plundered – for its wealth, or passed over as the commodities and products of global capitalism were delivered to their land-based destinations. In terms of security, the ocean was at most a buffer, designed to protect the dominant referent of security: the state. Indeed, most

435 Reus-Smit, The Moral Purpose, p 9. 436 Reus-Smit, The Moral Purpose, p 14. 437 Reus-Smit, The Moral Purpose, p 14. 438 Reus-Smit, The Moral Purpose, p 14. 439 Steinberg, Social Construction. 440 See for example the developments with regard to Marine Protected Areas. Gubbay, 'Marine Protected Areas'.

140 important is that the ocean has been conceptualised as a space outside of the state. Given that the ocean is constructed in this way as non-territory, it is pertinent to ask: what, if anything, imbues the currently-existing maritime boundaries of the world with social significance and normative content? Land has been accorded significance because it is a place where distinct peoples live and it is conceived of as being intimately connected to them. Though, in contrast, the ocean is often thought of as empty and inhospitable, it is not true that a property rights order was constructed in maritime space in the second half of the twentieth century in a normative vacuum. This contrasted with the practices of states during the last major experience of maritime enclosure.

During the last period of extensive claims to offshore jurisdiction, states made a variety of sometimes competitive claims that appeared to depend on their material power more than well-established rules. The Swedes and Danes perpetually fought for sovereignty over the Baltic and sought to exclude other regional powers; the British made sweeping claims to the dominion of the North Sea at the expense of the

Dutch; and the Spanish and Portuguese sought to divide the non-European seas between them. In short, there was certainly no reality of equal, reciprocal entitlement to offshore jurisdiction for all coastal states.

Moreover, boundaries at sea were often ill-defined and, although many thinkers espoused principles, such as that states could regulate the waters up to the median line when the coast opposite was under the control of a foreign power, these principles seemingly had little influence on actual policy. These extensive claims to maritime dominion eventually declined as the era of the freedom of the seas dawned. Though several states exercised preeminent power in the oceans throughout this period, they did not seek to enclose the oceans solely in their favour.

The construction of the property rights order in the oceans beginning in the middle of the twentieth century followed an entirely different pattern to that which took place in the early modern period – both on land and at sea. The international community abjured the use of force and coercion as means to mark out their entitlements to offshore jurisdiction. Instead, a series of conferences were held that sought to allocate maritime space to states based on universal principles of law. International society viewed this process as critical to the avoidance of a competitive scramble for jurisdiction at sea. There was, however, much

141 disagreement about how the oceans should be managed and states engaged in hard bargaining in order to maximise their gains in the process of constructing the ocean property rights regime.

Many fundamental property rights-related divisions were evident at the conferences: on whether a set of exclusive property rights should be created at all, on how maritime boundaries should be drawn, on determining the limits of the territorial sea and on the extent of continental shelf jurisdiction. However, these disagreements were limited in character. Between the groups on either side of these great debates there was a fundamental consensus on appropriate principles which would go on to condition the shape of the property rights order at sea. The contestation that occurred related to the precise boundaries that would be drawn within a predetermined basic allocation of maritime space. Rooted in more fundamental norms about the constitution of international society and the moral purpose of the state, these basic principles accorded the maritime property rights order and the boundaries that made it up a social significance that is not captured by simply viewing the ocean as a formless void outside of the system of states.

Fundamental among these assumptions was a principle with a long pedigree, which underlined all the negotiations that created the property rights regime at sea: it was that the ocean was international property and that every nation had legitimate rights to exploit its resources. In other words, maritime space was not to be the province of any one state or group of states. This norm was powerfully rooted in arguments emphasising sovereign equality and freedom and contrasted with notions of colonialism, violence and domination. These notions are bound up with the historical experience with land which strongly influenced the manner in which boundaries at sea were constructed. Indeed, in common with other studies of international negotiations,441 the following analysis finds that arguments drawing on basic ideas of justice permeated the Conferences' deliberations. In particular, a geographical conception of fairness underlined the debates about the allocation of coastal state jurisdiction. Put simply, informed by a territorial mindset, decision-makers thought about fairness in spatial terms and this appeared to place real limitations on what outcomes were contemplated as possible in the negotiations.

Moreover, although the ocean has been constructed as a non-territorial, separate space outside of the

441 Cecilia Albin, Justice and Fairness in International Negotiation, (Cambridge: Cambridge University Press, 2001).

142 state, it is not wholly divorced from land in an ideational sense or a geographical one. The intimate relationship between land and sea accorded the latter social significance as a secondary space of the state, utilised to support the independence and self-determination of its peoples. Additionally, despite sometimes substantial distances being involved, control over activities off the shores of the coastal state was viewed as a legitimate security concern of the state. Thus, a further fundamental assumption of the maritime property rights order was that individual maritime zones would be constructed on the basis of proximity to the coastal states that would administer them. This fundamental consensus persisted throughout the various conferences that dealt with the establishment of the property rights order at sea over the course of the second half of the twentieth century.

This consensus ultimately translated into the following outcomes, which contrasted starkly with practice in the early modern period: every coastal state would control the resources off its own shores; boundaries with neighbours would be drawn so as to allocate to each state an equitable proportion of the maritime area; and seaward boundaries would be demarcated on the basis of general principles related to physical geographical characteristics. This consensus reinforced the understanding that the effort to build order in the oceans was different to – and indeed fairer than – the forceful means by which land had historically been allocated. This further confirmed the notion that such old principles were out of place in modern international society and demonstrated the continuing influence of thinking about the land over the construction of states' jurisdictions at sea.

Common Property, The Freedom of the Seas and Ocean Enclosure

In the eighteenth century, the vast claims to sovereignty of the seas were gradually dismantled: the high seas were not to be divided into parcels of territory like land. Instead, they were considered common property open for free use by all nations. This common property ideal was given concrete expression in the fundamental doctrine of the freedom of the seas. While the state had to control ingress and egress on land in order to protect its territory and people from outside threats, the ocean was to be kept open for fishing, navigation, scientific research and other activities of benefit to mankind. Though ocean space was never

143 lawless – the concept of flag state jurisdiction over ships ensured activities at sea were regulated – it was not itself subject to the control or ownership of any one state or group of states. The free ocean was gradually understood as socially valuable: Booth explained that the origins of the freedom of the seas doctrine were politically inspired, and remain so, but that “like anything with 'freedom' in its title, it has taken on moral overtones.”442 The accepted view has been that “Grotius maintained a good cause badly and that Selden defended a very bad cause well.”443 Thus, while the particular divisions of the landmass were given social significance, the largely undivided ocean was understood as a social good throughout much of the two hundred or so years before the construction of the property rights order there beginning in the second half of the twentieth century. It was then that the freedom of the seas came under challenge, but proponents of ocean enclosure used the very moral justifications of the supporters of free seas against them.

The first fundamental, yet tentative, challenge to the freedom of the seas came in 1945 when

President Truman asserted American jurisdiction and control over the resources of the continental shelf appurtenant to the United States. The State Department had been concerned that the Proclamation could lead to “misunderstanding, suspicion, and opposition on the part of many other countries” with regard to its effect on fisheries, but also, in part, on the continental shelf.444 The Department of the Interior was much less concerned, but, ultimately, any concerns were overcome by a limited claim on the part of the United States.

There were two important characteristics of the Truman Proclamation: first, the United States did not claim sovereignty over the waters or indeed even over the shelf itself, but rather only rights to the resources of the seabed and subsoil. The core freedoms of the high seas – navigation and fishing – were to be retained in the superjacent waters. Indeed, although a second directive extended US regulatory control to fisheries, it was to be done in cooperation with other states if their fishermen already did or were expected thereafter to exploit the stocks in any particular area. In its effect on the doctrine of the freedom of the seas, then, the claim was a limited one and, as Michael Byers has pointed out, was subsequently emulated widely by other coastal

442 Booth, Law, Force and Diplomacy, p 12. On the origins of the freedom of the seas, see also Anand, Origin and Development, chapter 5. 443 D. A. Azuni, The Maritime Law of Europe, (New York: G Forman for I. Riley, 1806), quoted in Anand, Origin and Development, p 131. 444 Letter from Office of Economic Affairs quoted in Hollick, US Foreign Policy, p 39.

144 states.445 The continental shelf doctrine entered the body of customary international law swiftly and without great controversy precisely because it was a principle that was offered for every coastal state to follow.

Furthermore, the resources of the continental shelf had also not previously been exploited freely as part of the regime of the high seas and so states did not for the most part see themselves as losing out from the adoption of the doctrine globally. The Proclamation itself did not actually define the limit of the continental shelf, though its accompanying press release suggested that it might extend to the point at which the superjacent waters reached 200 metres in depth.

Those drawing on the precedent set by the Truman Proclamation had not simply confined their maritime claims to the continental shelf, however. Some states had taken the opportunity to expand their regulatory power to the water column to bring fisheries resources under their control as well. The primary mechanism through which they sought to achieve this goal was by simply extending the spatial extent of their sovereignty at sea. In essence, then, many of these claims were for a broader territorial sea, with the most extensive claims extending many miles off shore. Unlike the resources of the continental shelf, fisheries had been exploited for centuries on the basis of the freedom of the seas model. Therefore, these broad claims to national jurisdiction catalysed a reaction from the traditional supporters of the freedom of the seas who stood to lose out if fisheries were brought under the exclusive control of coastal states. They also feared that extensive coastal state claims could interfere with free navigation. The debate between the proponents of the freedom of the seas and those of ocean enclosure was played out at the first Conference on the Law of the

Sea in 1958 and continued in 1960 at the Second Conference, convened in the shadow of the failures of the first. Despite the seeming incompatibility of their views, the two sides of this debate nevertheless agreed on the fundamental construction of ocean space.

The persistence of the social value accorded to the freedom of the seas was evident as the beneficiaries of the doctrine sought to justify its continuation. Indeed, at the 1958 conference, the freedom of the seas was invoked as a positive principle by some states without the need for further justification. The

Bulgarian representative stated that the freedom of the seas should be the point of departure for the work of

445 Michael Byers, Custom, Power and the Power of Rules, (Cambridge: Cambridge University Press, 1999), p 92.

145 the conference446 and the German delegation reflected the then mainstream view, simply stating that unilateral measures would restrict the freedom of the seas without even engaging in further explanation that this would be a negative development.447 Echoing the Grotian perspective, the Haitian representative went so far as to state that the free use of the seas was part of the natural order of things.448 The delegation from the

USSR spoke of not enclosing the oceans as “a statement of principle,”449 highlighting the understanding of the freedom of the seas as a concept with moral content. Moreover, the supporters of the freedom of the seas derided the attempts of some states to expand state jurisdiction in the ocean as false progress, with the

Belgian delegation describing ocean enclosure as a “medieval concept”.450 Indeed, New Zealand's delegation described the traditional law of the sea principles as “startlingly modern and liberal in conception.” 451 Thus, the assumption at the first conference was that the freedom of the seas was a common sense principle – that it was positive and indeed even just. These views persisted at the Second Conference on the Law of the Sea, which was convened specifically to deal with the breadth of the territorial sea. It was in the debates relating to this issue that the practical benefits of the doctrine of free seas were drawn on most clearly.

To be sure, the freedom of the seas was deemed to be in the enlightened self-interest of the international community. Canada stressed the “results had more than justified”452 the opening up of the

446 Statement of Mr Golemanor, Bulgaria, 10th meeting of the 3rd committee of the First United Nations Conference on the Law of the Sea, 18 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 23. 447 Statement of Mr Pfeiffer, Federal Republic of Germany, 9th meeting of the 3rd committee of the First United Nations Conference on the Law of the Sea, 17 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 16. 448 Statement of Mr Belizaire, Haiti, 15th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 14 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 43. 449 Statement of Mr Krylov, Union of Soviet Socialist Republics, 6th meeting of the 3rd committee of the First United Nations Conference on the Law of the Sea, 12 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 8. 450 Statement of Mr Michielsen, Belgium, 28th meeting of the 3rd committee of the First United Nations Conference on the Law of the Sea, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 72. The United Kingdom agreed that "no more retrograde step could be imagined" than carving up the oceans. Statement of Sir Reginald Manningham-Buller, United Kingdom, 5th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 5 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 8. 451 Statement of Mr Wilson, New Zealand, 9th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 10 March 1958, United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 20. 452 Statement of Mr Drew, Canada, 31st meeting of the 1st committee of the First United Nations Conference on the Law

146 oceans to exploitation and use by all nations. Some states argued that the ability of fishermen to range far and wide in the oceans contributed to the welfare of humanity by ensuring a maximum supply of fish for consumption.453 The freedom of the seas was also viewed as essential to the prosperity of all nations by facilitating international trade. Though some sections of international society at the first conference criticised the law of the sea as being a creature created by maritime states in their interests, other delegations not necessarily representing powerful maritime interests were keen to stress that the freedom of the seas had been of benefit to them. The Swiss delegation disagreed that the law of the sea served only the interests of the powerful and was reported as saying that “Swiss prosperity had waxed and grown under the regime of the traditional law of the sea”454 and Australia's representative stated that the principle “enabled countries in the process of development to enjoy security and prosper.”455

Even more grandiose claims were made about the freedom of the seas by some of its supporters, which clarified what precisely the moral content of the doctrine was understood to be. Canada's representative stated

The history of the freedom of the seas has been part, and a very important part, of the history of expanding human freedom throughout the centuries. Instead of being a progressive step, the extension of the territorial sea beyond necessary limits is a retrograde step and contrary to the steady growth of freedom everywhere. 456

In similar terms, Spain's representative said that the principle “had so largely helped to spread civilisation throughout the world and to create the community of nations.”457 Perhaps most important, though, is that one

of the Sea, 31 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 90. 453 See the statement of Mr Llosa, Peru, 23rd meeting of the 3rd committee of the First United Nations Conference on the Law of the Sea, 8 April 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 57. 454 Statement of Mr Ruegger, Switzerland, 16th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 14 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 47. 455 Statement of Mr Hood, Australia, 19th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 18 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 60. 456 Statement of Mr Drew, Canada, 5th meeting of the Second United Nations Conference on the Law of the Sea, 25 March 1960, in United Nations, Official Records of the Second United Nations Conference on the Law of the Sea, p 68. 457 Statement of The Marquis de Milaflores, Spain, 6th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 10 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 7.

147 of the key accounts of the freedom of the seas was that it was a fundamentally fair regime.

Countering those who would reduce the oceans to national control, the Belgian representative was reported as saying that “such trends were an obstacle to the final goal, which was that the riches at the disposal of humanity should be exploited by all in complete liberty and on a basis of equality.”458 Indeed, the justice of a system in which every state had equal access to the resources and benefits of the oceans was relied on as one of the primary ethical bases of the freedom of the seas by its supporters. The Japanese delegation was reported as saying that ocean enclosure “would in effect give a fishing monopoly to the coastal States, while other states would be excluded without compensation from fishing in particular areas of the high seas. That would be inequitable and at variance with the principles of equality of states before the law and the freedom of the high seas.”459 France's delegation agreed that giving coastal states too much control would undermine the equality of nations.460 Consequently, the supporters of the freedom of the seas tapped into fundamental norms about the sovereign equality of states, which were manifested in the ocean as common property, to justify their attempts to defeat the ocean enclosure movement.

In short, then, the freedom of the seas was conceptualised as being in the enlightened self-interest of international society. It contributed to free trade, the spread of civilization and the wealth of all peoples and was considered an unquestioned and unquestionable good by some, if not most, states in the 1950s. Those who challenged the freedom of the seas were criticised for being backward-looking enemies of progress and prosperity. They were denounced as revolutionaries, intent on undermining the ocean as common property as ocean enclosure was understood at the time as the antithesis of free seas. Indeed, the common property construction of the ocean embodied in the doctrine was equated by its supporters with a particularly liberal conception of justice in that it enabled equal access for all peoples to the resources and benefits of using the

458 Statement of Mr Michielsen, Belgium, 8th meeting of the 3rd committee of the First United Nations Conference on the Law of the Sea, 14 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 13. 459 Statement of Mr Ohye, Japan, 27th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 11 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 25. 460 Statement of Mr Alloy, France, 27th meeting of the 3rd committee of the First United Nations Conference on the Law of the Sea, 11 April 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 70.

148 ocean. The norm of the sovereign equality of states was drawn on to give this conception of justice force.

The supporters of ocean enclosure, on the other hand, were accused of acting for selfish purposes, while those supporting the freedom of the seas did so in the community interest for moral reasons.

Those who would bring the resources of the seas under the exclusive jurisdiction of coastal states, however, were just as adamant about the outmoded and unjust nature of the freedom of the seas. Centrally, though they sought to enclose ocean resources in a set of boundaries demarcating exclusive rights to them, these states did not challenge the fundamental notion that the ocean was common property in the sense that every state should be entitled to it, though they did reinterpret the means through which this standard would be implemented. Consequently, the ocean enclosure movement perhaps advocated a rather more limited departure from the traditional norms underpinning the organization of the oceans than has sometimes been assumed by those simply examining the maritime order from a legal perspective. Indeed, while the positions of the two groups of states have been considered to be polar opposites, in reality the claims of those who would enclose ocean resources within national zones revealed a fundamental consensus between them and the supporters of the freedom of the seas.

First, the supporters of wider coastal state jurisdiction – also known as territorialists – began to unbundle the concept of the freedom of the seas. In short, they sought to redefine and limit that widely supported principle at the same time as they sought to delegitimise its application to resources. Indeed, the freedom of the seas, for them, actually amounted to a number of distinct freedoms, some of which were more legitimate than others. The summary of the statement of the representative from Chile at the first UN

Conference said: “the origin of the freedom of fishing was quite different from that of the right of navigation; and, if the latter was not absolute but was subject to exceptions, there was all the more reason why exceptions should be applied in the case of the former.”461 The Australian delegation agreed at the second conference, saying that it regarded the “freedom of navigation as the most valuable of all the historic

461 Statement of Mr Melo Lecaros, Chile, 10th meeting, 3rd committee of the First United Nations Conference on the Law of the Sea, 18 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 25.

149 freedoms of the sea.”462 In fact, the territorialists were – outwardly at least – supporters of freedom of navigation, and it was mostly greater coastal state control of resources that they sought. At least for commercial ships, none sought to undermine the innocent passage regime for the territorial sea and the developing states repeatedly stated their commitment to the freedom of the seas – meaning the freedom of navigation – even as they advocated greater coastal state control over resources. For example, even Uruguay, which had claimed full sovereignty over the waters superjacent to its continental shelf, said in the first UN

Conference that it would respect the freedom of the high seas.463 In short, the freedom of the seas was recognized by these countries as both legitimate and beneficial, but they recognized it as a much narrower concept relating to free navigation.

The freedom of fishing, in particular, was not regarded so positively. Nevertheless, the first unilateral moves to bring the living resources of the seas under national control had been tentative and limited. Many states made rather modest extensions to their territorial seas up to twelve nautical miles in most cases.

Following the proclamation of President Truman that the mineral resources of the seabed and subsoil of the

American continental shelf were to be reduced to the control and jurisdiction of the United States, a number of Latin American states proclaimed sovereignty over their own continental shelves but, in some cases, they claimed the same rights to the superjacent waters and, in other cases, resources to a specified distance from their coasts that exceeded the natural continental margin.464 These claims took the precedent of the Truman

Proclamation far further than the United States had sought to do itself by affecting rights to living resources and potentially the navigation regime at sea. Though this expansionism might seem on its face to be contrary to the notion that unchecked territorial aggrandisement is illegitimate at sea, it is clear that not just any expansionism was acceptable. By extending the precedent of the Truman Proclamation, these states actually

462 Statement of Mr Kenneth Bailey, Australia, 11th meeting of the Second United Nations Conference on the Law of the Sea, 31 March 1960, in United Nations, Official Records of the Second United Nations Conference on the Law of the Sea, p 215. 463 Statement of Mr Carbajal, Uruguay, 5th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 7 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 5. 464 See Annual Report of the Secretary of the Interior, Fiscal Year Ended June 30, 1945 (US Government Printing Office, 1945, pp ix-x. Reproduced in, Marjorie M. Whiteman, Digest of International Law vol. 4, (Washington DC: US Government Printing Office, 1965), p 763

150 behaved rather cautiously and sought rights that were, in spatial terms at least, no larger than those claimed by the USA over its continental shelf.465 Moreover, this expansionism was limited and conditioned by fundamental notions of appropriate behaviour that, at base, were rooted in the traditional construction of the ocean as the property of all nations.

These states sought to legitimise their claims for broader control of offshore resources in each of the committees at the First Conference on the Law of the Sea. In the Committee on the Continental Shelf, they pointed to the flawed logic and injustice of coastal states gaining access to the mineral, but not the living resources off their own shores.466 In the committee on fisheries conservation, they argued that coastal states were best placed to manage fish stocks and that they should have preferential rights to those off their own shores. In the Committee on the territorial sea and contiguous zone, they attempted to gain control of these resources by agitating for a broader outer limit of the territorial sea. The proponents of these views described the traditional freedom of the seas concept as a system which was developed without the input of states that had come into being comparatively recently.467 They propounded the view that the great maritime powers only wished to keep the territorial sea narrow so that they could continue to threaten and coerce other countries. In contradistinction, they described the moves to accord coastal states greater control of the resources off their coasts as progressive and complained that the freedom of the seas had been abused, particularly by states with long distance fishing fleets. In so doing, they often drew on further analogies to land: in the words of the Canadian delegate, Leonard Legault, the third Conference was aiming towards the

“decolonialization of the law of the sea.”468 Indeed, developing countries concluded that, just as a terra nullius construction of land had facilitated colonialism,469 the construction of the ocean as empty space that 465 Some of the most extensive claims were made in the Latin American region, with Peru, for example, firing on foreign fishing vessels over 300 nautical miles from shore, but only because they had violated rules within its claimed zone of 200 nautical miles. See Kunz 'Continental Shelf', p 837. 466 See, for example, the statement of Mr Carbajal, Uruguay, 5th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 7 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 5. 467 See for example, the statement of Mr Hassan, United Arab Republic, 17th meeting of the Second United Nations Conference on the Law of the Sea, 6 April 1960, in United Nations, Official Records of the Second United Nations Conference on the Law of the Sea, p 309. 468 Quoted in Sanger, Ordering the Oceans, p 40. There was a broader trend to decolonize international law as a whole at this time, as explained by Antony Anghie, Imperialism, Sovereignty and the Making of International Law, (Cambridge: Cambridge University Press, 2005), Chapter 4. 469 Anghie, Imperialism, p 82-84.

151 was associated with the freedom of the seas era led to functionally equivalent results.

The living resources off the coasts of these states were depicted as being illegitimately harvested – and in some cases depleted – by foreign powers under the traditional doctrine of the freedom of the seas.

Coastal states, particularly from the developing world, claimed that the fleets of distant water fishing nations were coming to the waters close to their shores and competing unfairly with local fishermen who, unlike long-distance fishermen, were ill-equipped to move elsewhere. The Vietnamese representative to the first

Conference was reported as saying that “Many coastal States derived their livelihood from fishing, which was in many cases coastal fishing because many of the States in question did not possess the necessary equipment for deep-sea fishing.”470 Larger trawlers with more sophisticated technology were exhausting the only stocks available to these small-scale fishermen and leaving them with little left to catch. It was argued that the benefits of the freedom of the seas for these fishermen and their governments were, therefore, illusory.471 By painting the maritime powers as expansionist and imperialistic, abusing the freedom of the seas for their own purposes, those who would enclose the oceans defended their own expansionist policies.

Thus, when the Vietnamese delegation explained the reasoning behind a proposal to give coastal states a greater right in offshore resources than those of distant water fishing nations, it did so by drawing on an equality argument. The summary of the Vietnamese statement says: “The purpose of the joint proposal was to ensure equality; the proposed preferential right to fish would merely compensate for a de facto inequality.”472 Therefore, while the supporters of the freedom of the seas emphasised the justice of the principle in terms of equality of access to marine resources for all nations, the supporters of greater coastal state rights justified their positions in terms of equality of opportunity to access marine resources. Both these positions were rooted in the constitutional international norm of sovereign equality and assumed that the

470 Statement of Mr Nguyen-Quoc-Dinh, Vietnam, 24th meeting of the 3rd committee of the First United Nations Conference on the Law of the Sea, 9 April 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 60. 471 See the statement of Mr Llosa, Peru, 5th meeting of the 3rd committee of the First United Nations Conference on the Law of the Sea, 10 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 18. 472 Statement of Mr Nguyen-Quoc-Dinh, Vietnam, 24th meeting of the 3rd committee of the First United Nations Conference on the Law of the Sea, 9 April 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 60.

152 ocean was an area within which all states had legitimate interests and rights of use.

Consequently, the formal construction of the property rights order at sea that began in 1958 and continued for the next few decades was reasoned not as a challenge to the ocean as common property, but rather as perfecting and reinforcing that principle. Though a legal revolution, the enclosure of marine resources, far from being a revolution in the normative constitution of the ocean, was an evolution, which took place against a persistent and universal understanding of the ocean and its resources as international property that should be available to all nations equally. Coastal state claims to the living resources of the seas were, therefore, legitimised by their capacity to make the resources of the ocean genuine common property – not because everyone could access its resources at any time and in any place, but because they would have an equal opportunity to do so by being given exclusive rights over areas of national jurisdiction. In short, all coastal states would have a share of maritime space.

Similarly, the Truman Proclamation had arguably been such a successful innovation in ocean governance that rapidly became customary international law because it also chimed with this fundamental construction of ocean space. The Proclamation stated that it was “the view of the Government of the United

States that the exercise of jurisdiction over the natural resources of the subsoil and sea bed of the continental shelf by the contiguous nation is reasonable and just.”473 Indeed, the lack of protests against the

Proclamation by other states was cited by the US government as evidence of just how fair and reasonable it was.474 It was a limited claim and did not seek to extend jurisdiction to the resources off the coast of other countries, which were left free to make similar claims themselves. In short, it was the United States' position and those that followed its precedent that every coastal state would receive their share of the seabed.

However, the question remained what the extent of that jurisdiction would be and the principles on which it would be allocated. At the first Law of the Sea Conference in Geneva in 1958, the continental shelf doctrine became somewhat controversial, specifically because it became necessary to try to define the continental shelf in an era in which technology for offshore oil extraction was developing rapidly. Despite the concerns

473 Truman, 'Proclamation'. 474 Annual Report of the Secretary of the Interior, Fiscal Year Ended June 30, 1945 (US Government Printing Office, 1945, pp ix-x. Cited in Whiteman, Digest, p 762.

153 of some states, the fundamental consensus persisted in the negotiations and was reinforced: every coastal state would receive its fair share of maritime space.

Defining the Continental Shelf

Though a few states actively considered – and advocated – the establishment of a freedom of the seas regime for continental shelf resources, they were generally in the minority. The USSR, for its part, foresaw the same problems arising for a freedom of the seas regime for continental shelf resources as developing countries had highlighted relating to the living resources of the seas: it would lead to an “intensified struggle for possession of the submarine areas of the high seas, as a result of which the wealth of the continental shelf might pass into the hands of undertakings of the large States to the detriment of the small and medium-sized countries.”475 Right from the start, therefore, it was clear that the governing regime for the continental shelf would be one that granted coastal states exclusive rights to the resources of the seabed and subsoil. The international consensus was the same as it was with relationship to living resources: all coastal states would have the same rights to explore and exploit the continental shelf and none would be excluded from those resources.

The Continental Shelf regime required definition both in terms of the content of the rights that the coastal state would gain and the spatial extent of seabed over which those rights would be exercised. Much bargaining ensued to accommodate the positions at each extreme of the debate. The group of primarily developing states that advocated broader coastal state jurisdiction over maritime space also favoured more extensive competence for the coastal state. The Continental Shelf regime was no exception to this general trend. A group of territorialists supported the coastal state gaining full sovereignty over the continental shelf itself, rather than simply control over its resources as favoured most vehemently by the supporters of the freedom of the seas. The latter states were fearful that the exercise of full rights of sovereignty anywhere further seaward than the territorial sea would lead to a weakening and dilution of the concept of high seas

475 Statement of Mr Molodtsov, Union of Soviet Socialist Republics, 10th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 14 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 20.

154 freedoms and constitute a slippery slope towards full ocean enclosure. Such a move would potentially affect freedom of navigation but also the ability of states to place military hardware on the continental shelf.

Consequently, they favoured states possessing more limited powers – “sovereign rights” or “jurisdiction and control.”476 Thus, ultimately, the language used in the convention was of “sovereign rights” that the state would possess to explore for and exploit the resources of the continental shelf, rather than sovereignty.

Clearly, this debate did nothing to challenge the normative consensus that each coastal state would administer resource extraction on its own continental shelf, as it had no effect on the spatial dynamics of the regime.

However, in defining continental shelf, the second crucial question was what its spatial extent would be. The major dilemma for the participants at the conference was how to ensure a definition was established that would not become obsolete too quickly given the rapid development of technology. The International

Law Commission had suggested that the limit of the continental shelf should be where it reached a depth of

200 metres or where the depth of waters admitted of the exploitation of the natural resources of the shelf.

This construction was qualified by the proposition that the continental shelf was “adjacent” to the coast.

Nevertheless, the formulation was controversial because it was regarded as too vague by some states. A number of delegations, therefore, suggested alternative formulations, with some proposing limits based on distance, natural principles such as the geomorphological edge of the continental shelf, or alternative depths.

Indeed, many states were uncomfortable with a limit as uncertain as one based on the capacity for exploitability. The UK and France,477 among others, registered their concern that such a formulation might lead to conflict, and Norway suggested a simple depth criterion would be more appropriate because it would be certain.478 Others also favoured the deletion of the exploitability criterion altogether and the retention of a

476 For some states, even this went too far. See the statement of Mr Gihl, Sweden, 4th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 4 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 3. 477 Mr Gros, France, and Miss Gutteridge, United Kingdom, 4th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 7 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 4 and p 2 respectively. 478 Statement of Mr Carl Stabel, Norway, 4th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 7 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 5.

155 depth criterion alone, either at two hundred metres or some other value. The Netherlands' delegation further considered that a limit based on distance from the coast would be more consistent with the principle of the equality of states as it would not be so reliant on accidents of geography as a depth criterion.479 One of the fundamental problems with the exploitability criterion was that nobody was quite sure what it meant: was the criterion an objective one meaning that if technology could exploit the resources of the seabed in waters beyond 200 metres depth then any state could claim the seabed to that depth regardless of whether they themselves possessed such technology? Or was it only those states who had the actual capacity to do so who could make such claims?

Undoubtedly, the ILC had been concerned to ensure a regime that was flexible enough to ensure resources were developed and that the convention did not need continual renegotiation, but states were concerned with the equity of such a system. The report of the Lebanese statement explains the problem:

If the criterion of possible exploitation were retained and it eventually became possible to exploit submarine areas at much greater depths, it was possible that four-fifths of an area which now formed part of the high seas would become the exclusive preserve of technically developed coastal states, instead of being open to the entire international community as res communis.480

In short, states conceived of fairness specifically in geographical terms and disproportionate entitlements were seen as problematic in a realm which was supposed to be the common property of all states. Even developed countries agreed with the Lebanese assessment. Canada similarly drew on the principle that the ocean was common property, its delegation reportedly saying that “the criterion of possible exploitation was unacceptable, since the Conference's task was to enable all States, and not only those with advanced technical means, to exploit the resources of the continental shelf.”481 Thus, the possibility for a small number of states effectively to gain widely disproportionate areas of maritime space simply because of they were

479 Statement of Mr Mouton, Netherlands, 17th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 25 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 44. 480 Statement of Mr Fattal, Lebanon, 16th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 21 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 38. 481 Statement of Mr Carty, Canada, 15th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 21 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 37.

156 wealthy and technologically advanced was seen as a major problem. However, no state actively advocated that this be the case, reinforcing the notion that – in building a territorial-like order there – the oceans were not to become the exclusive preserve of the few.

Indeed, other states assumed that an outcome other than every coastal state having a full continental shelf of its own could not possibly be the intention. For example, Colombia's lack of concern about the exploitability criterion was clear:

Far from granting a monopoly over the continental shelf to certain coastal states, as some delegations had argued, the definition given in article 67 ensured equal rights and opportunities for all coastal States. The only possible inequality arising from the terms of the article was that technically more advanced States might possess better means of exploiting the natural resources of the continental shelf than other States.482

The representative, therefore, assumed that the capacity for exploitation was an objective criterion that would apply to all states equally regardless of whether they themselves possessed that capacity. The delegate, made clear that he considered the absence, rather than the presence, of the exploitability criterion a threat to developing state interests because it would enable exploitation by industrialised countries relatively closer to the coast of other states.

The Indian representative said that there was “nothing extravagant in enabling the coastal State to exploit the seabed and subsoil at a greater depth than 200 metres if that were possible, and he saw no objection to sea areas being shared out between States provided it was done equitably.”483 The delegate was clear that it would certainly not be equitable or appropriate for states to take over control of resources off the coast of other states. He highlighted that the alternative to a clear legal regime for the continental shelf was for the seabed to be allocated as the land had been: on the basis of coercion, which led to the legal principle of effective occupation and control. Its representative’s statement also said:

The Indian delegation opposed the view that the right to explore and exploit the continental shelf should be based

482 Statement of Mr Caicedo Castilla, Colombia, 7th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 11 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 10. 483 Statement of Mr Jhirad, India, 17th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 24 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 42.

157 on effective occupation and control. The corollary of that theory was that, in the absence of effective occupation and control by the coastal State, any other State would be entitled to take over such control. The adoption of that principle would seriously compromise the peaceful co-existence of States.484

The United States was also quick to dispel any notion that the exploitability criterion would be used to exploit areas beyond the natural continental shelf of the landmass, at the same time confirming that it was not even entertaining the idea that any country could exploit the resources off the coast of another. Its delegation said that exploitation could not “continue indefinitely towards the middle of the ocean; the continental slope fell away steeply and rapidly, so that exploitation beyond a certain limit would not be an economic proposition.”485 That the representative assumed in this formulation that any exploitation would end at the median line of the ocean implicitly acknowledges that the United States had no intention of utilising the exploitability criterion to be able to appropriate the resources of another country's continental shelf.

However, a primary concern among some states, as it had been in the ILC, was that a depth criterion alone would become obsolete too quickly. Colombia's representative at the conference said that the

“limitation of the continental shelf by fixing a maximum depth of 200 metres would be tantamount to disregarding continuous scientific progress in respect of exploitation.”486 Moreover, some states, such as

Chile, were concerned that a geological criterion alone would be disadvantageous to states with narrow natural continental shelves.487 Consequently, no compromise on an alternative formula was forthcoming and so the conference ultimately decided to retain the ILC formula: the final Convention on the Continental Shelf included the dual depth and exploitability criteria.

Though the exploitability criterion at first glance would appear to license unlimited expansionism on

484 Statement of Mr Jhirad, India, 8th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 12 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 12. 485 Statement of Miss Whiteman, United States of America, 16th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 21 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 40. 486 Statement of Mr Caicedo Castilla, Colombia, 7th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 11 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 10. 487 Statement of Mr Barros, Chile, 9th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 13 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 16.

158 the seabed – a fear later exploited by Arvid Pardo – the representatives to the Geneva Conference had not understood the formula as permitting such behaviour. In fact, the statements of powerful and weak states alike demonstrated an active assumption that all states would have an opportunity to exploit their own continental shelves. That some states had expressed concerns that the ocean might become the preserve of just a few states and that others had sought to reassure them that this eventuality could not arise illustrates this understanding. Thus, although the dual depth and exploitability criteria ended up in the final Convention, it should be understood as a reinforcement of the ideal of the ocean as international property, rather than a subversion of it.

Ratification of the Convention was not universal, however, with fifty-seven countries finally accepting to be bound by the treaty. The 1958 Convention, including its controversial definition of the continental shelf, was superseded by UNCLOS some twenty-four years after it had been signed. Indeed, none of the Geneva Conventions had been an overwhelming success and all were superseded by that treaty because they were eventually viewed as deeply flawed. Perhaps the most immediate failure had been the

Convention on the Territorial Sea and Contiguous Zone, however, as it had omitted one of the most important elements of an instrument designed to bring order to the oceans: the breadth of the territorial sea itself.

The Breadth of the Territorial Sea

The purpose of the territorial sea is more complex than other modern maritime zones. It is designed to protect the state from coercion, invasion and other threats by naval forces and non-state entities. In short, it acts as a buffer enabling states to keep potential threats away from their shores. Consequently, weaker, generally developing states favoured the institutionalisation of as broad a territorial sea as possible. This interest was reinforced by their desire to gain control of offshore resources as the extension of the territorial sea was also seen as a means of establishing sovereignty over coastal fisheries. By the time of the Geneva

Conference, some developing countries had claimed very extensive territorial seas, a few of 200 nautical miles, while most others had more modestly only claimed twelve nautical miles.

159 Industrialized maritime states, on the other hand, preferred to retain as large a space of high seas as possible to grant them maximum freedom of manoeuvre for their naval forces, the greatest extent of maritime space for unfettered navigation and maximum freedom of fishing. The maritime states therefore pointed to the existing norm being a three nautical mile territorial sea. The International Law Commission had recognised that customary law on the breadth of the territorial sea was unsettled. Therefore, they concluded that, though there was no single breadth that was required, a territorial sea anywhere between three and twelve nautical miles wide was not illegal. Ultimately, the two sides could reach no compromise, so the Geneva Convention on the Territorial Sea and Contiguous Zone simply did not state a required breadth for the territorial sea. It was left up to individual states to declare the limits of their own territorial sea, which was indeed the position that some states had said should be the rule at the conference.

The negotiations relating to the limits of the territorial sea featured a lively debate about how the extent of this zone should be determined. A fundamental distinction emerged between those – mostly developing – states that were on the side of expansive state rights at sea and the developed maritime states.

The former argued that the coastal state should be empowered to decide the breadth of the territorial sea for itself and the latter wished to set a definite limit that was narrow in order to retain the broad area of high seas they deemed to be in their interests. Again, however, it is clear that even those advocating a wide state discretion in choosing the breadth of its territorial sea actually made rather limited proposals to ensure that the discretion could not be used to gain substantial and inequitable areas of offshore space. There was a fundamental consensus between the two sides on the acceptability of unfettered unilateral action in apportioning marine space.

According to the maritime states, that ocean space was common property meant no state could validly purport unilaterally to determine the way that it should be governed. The summary of the United

States delegation's view of the way that decisions should be made with regard to ocean space neatly encapsulated this view. It said, that the USA was in “consistent support of the universally recognized doctrine of the freedom of the high seas, no part of which could be unilaterally appropriated by any one State

160 without the concurrence of the others.”488 Basing its assessment in broad modern trends, the Dominican

Republic explained its very similar view at length:

Ever since the First World War there had been a tendency to restrict State sovereignty and to rely increasingly on collective action. Any extension of sovereignty thus seemed at variance with the basic principles of international cooperation. For those reasons, the Dominican Government could not accept the argument that law could be created merely by unilateral action, unless such action was subsequently validated by the consent of other States or had received collective approval in advance.489

Nevertheless, the opposing bloc of states favouring the coastal state having the competence to determine the breadth of its territorial sea justified their view in legal terms.

In 1948, Norway and the United Kingdom had taken a dispute to the International Court of Justice for resolution. Norway had sought to exclude British fishermen from certain areas of sea off its coast because it had drawn a system of straight baselines enclosing various portions of space as internal waters, thereby pushing the limits of its territorial sea seaward. The parties sought a definition of the extent of sea over which Norway was entitled to expand its sovereign control and thereby exclude other states from fishing there. The ICJ found that Norway was entitled to define its territorial sea based on the very complicated local conditions of its coastline. Critically, it said that “although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law.”490 The proponents of broad coastal state competence to regulate the oceans seized upon this statement in support of their position.

Tunisia cited the decision of the International Court of Justice in the Norwegian Fisheries Case, saying that “it was clear that the Court had recognized that the coastal State was free to adapt its delimitation of the territorial sea to practical needs and local requirements.”491 Indeed, the states who adopted this

488 Statement of Mr Dean, United States of America, 10th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 11 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 25. 489 Statement of Mr Alvarez Aybar, Dominican Republic, 12th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 12 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 34. 490 Anglo-Norwegian Fisheries Case, para 132. 491 Statement of Mr Abdesselem, Tunisia, 15th meeting of the 1st committee of the irst United Nations Conference on the Law of the Sea, 14 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 45.

161 perspective emphasised that no two states were in the same position and that this necessitated a broad discretion for coastal states to set the limits of their own territorial sea. In other words, they proposed that the coastal state had a right to unilaterally declare the breadth of ocean space over which it would exercise sovereignty. For example, the USSR suggested that a state should set its outer limits “after taking into account historical circumstances, geographical, economic and security interests and also the interests of international shipping.”492 These states also drew on the principle of sovereignty, suggesting that sovereign equality dictated that states should have the discretion to set the limits of their own territorial sea.

For their part, the maritime states had emphasised the second part of the famous ICJ quotation – that the validity of a territorial sea claim had an international aspect and depended on international law. That law, they claimed, was – and had been for a long time – that the territorial sea should not extend beyond three nautical miles. However, the proponents of broader maritime jurisdiction seized upon the ILC’s finding that a territorial sea between three and twelve nautical miles wide was not illegal. This, they said, meant that there was no particular distance that states were required to adopt. Such a view would seem to be at odds with the notion that the ocean is international property as it would seem to provide any state with an unfettered opportunity to expand its territory seaward as far as it wished. However, in reality, these claims for coastal state discretion were carefully circumscribed.

Ecuador emphasised that “freedom of action was always subject to the legitimate rights of others,” 493 thus reinforcing the idea of the sea as global property. Denmark's delegation concluded that “nothing should be done to weaken the authority of the opinion expressed by the International Court of Justice... to the effect that the validity of any delimitation of the territorial sea by the coastal State depended on international law.”494 Therefore, the consensus among the vast majority of states – even those desiring that the competence

492 Statement of Mr Tunkin, Union of Soviet Socialist Republics, 12th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 32. 493 Statement of Mr Ponce Y Carbo, Ecuador, 19th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 18 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 62. 494 Statement of Mr Sorensen, Denmark, 4th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 4 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 4.

162 to set the breadth of the territorial sea be with the coastal state – was that they could only do so within a fixed limit. Drawing on the ILC’s draft articles, they said that the coastal state should be free to determine the breadth of its own territorial sea, so long as it did not exceed twelve nautical miles.

Consequently, though the debate surrounding the setting of the limits of the territorial sea featured positions by some states that seemed to suggest they would be willing to license unlimited unilateral expansionism at sea, they really only advocated a limited discretion on the part of coastal states to set the extent of their own jurisdiction. In reality, they recognized that no state should unilaterally determine the status of marine space without restriction. Such a principle could logically potentially threaten the international property construction of the oceans and lead to an inequitable division of maritime space.

Though the maritime states perhaps favoured a check on unilateralism to prevent further dilution of the freedom of the seas, they were nevertheless clear that the division of the ocean could not be subject to the whims of individual states at the cost of all others. Rather, there was a consensus that every state would possess its own, relatively limited territorial sea and that the expansion of sovereignty at sea would be kept clearly in check.

Defining Maritime Boundaries

The seaward limits of the various maritime zones are not the only boundaries that determine coastal states' jurisdictions at sea. In many, if not all, cases, states must delimit maritime boundaries with their neighbours, whether they are opposite one another (such as Britain and France) or whether they occupy a portion of the same landmass and are therefore adjacent to each other (such as Canada and the United States). Maritime boundary delimitation became a major issue with the development of the continental shelf doctrine prior to the first UN Conference on the Law of the Sea. Later, with the establishment of the Exclusive Economic

Zone, states needed to delimit boundaries that applied to the water column beyond the territorial sea as well.

Again, states promoting one of two formulas did so because it was in their interests, but a fundamental consensus was apparent between the proponents of the different methodologies for drawing maritime boundaries in the justifications they used for their preferred formulas: it revolved around a geographical

163 conception of justice informed by a territorial mindset, which privileged spatial equitability. This consensus also drew on the notion of proximity, which will be discussed further in the next section.

Indeed, as there was regarding many issues throughout the law of the sea codification conferences, there was a fundamental division between two groups of states on the issue of maritime boundary delimitation.495 The first group favoured a requirement that delimitation take place on the basis of a concrete and objective principle, namely that of the equidistance or the median line. The median or equidistance line is simply a line drawn every point of which is equidistant from the nearest point on the coastlines of the parties delimiting their maritime areas. The median or equidistance line was selected by its adherents precisely because it seemed to accord with basic notions of fairness: both parties would receive the portions of maritime space closest to their own coasts and, in an ideal situation, the line would deliver an equal division of the area to be delimited. However, ideal situations are infrequent. The second group of states were disadvantaged by such an inflexible rule and so favoured a more open requirement, namely that maritime boundaries should be delimited on the basis of equity in order to soften the harshest effects of a concrete rule.

Equity might appear to be a vague concept that could encourage unilateral expansionism at the expense of neighbouring states. Indeed equity was criticised as such by many participants at the First Law of the Sea Conference. However, the way it was conceived by most participants only mandated a limited departure from the median or equidistance line. Indeed, that those favouring equity did so essentially in response to the weaknesses of the equidistance rule highlights their acceptance of the basic premise that states should receive fair entitlements based on spatial characteristics. To be sure, many situations are not ideal and, in these cases, the simple use of a median or equidistance line would have delivered wildly unequal proportions of the maritime space in the delimitation area. This outcome is illustrated by the situation of two of the most vocal proponents of the opposing formulas for drawing maritime boundaries –

Greece and Turkey – who both would be favoured by their preferred method and disadvantaged by the other.

The Aegean Sea is punctuated by a series of islands that stretch right across to the respective coasts 495 This division was most apparent during the Third United Nations Conference on the Law of the Sea, at which many states declared their position on the subject of maritime boundary delimitation.

164 of Turkey and Greece. However, almost all of these islands are under the sovereignty of Greece and if it was even to expand its territorial sea to twelve nautical miles, let alone declare and EEZ or continental shelf from the islands, the Aegean would be converted into a Greek lake, leaving Turkey with barely any entitlement to maritime resource zones. Turkey, therefore, advocated that Greece's preferred equidistance formula was inequitable. Although it would deliver an equal proportion of the maritime area between the two coastlines of the countries, Turkey argued that islands should be treated differently to mainland coasts in cases of maritime delimitation. Consequently, Turkey did not argue that equidistance itself was problematic, just that certain situations meant that it would not lead to just results in spatial terms.

Thus, the doctrine of equity led to the development of the concept of special circumstances. Special circumstances were considered to be features that had an excessively distorting effect on a median or equidistance line, such as, like the Aegean example, islands that were distant from the mainland of one state and much closer to its neighbour. Another such factor that was cited was a situation in which one state adjacent to another had a coastline configured in such a way as to distort the equidistance line in favour of the party not in possession of such a disadvantage. Consideration of the effect of special circumstances in a delimitation was designed to achieve an equitable result. In short, then, equity was conceived by its proponents as requiring a limited departure from the median or equidistance line. It was far from a cover for unlicensed expansionism at the expense of neighbouring states. Moreover, instead of departing from a roughly equal division of a given maritime area, the doctrine of equity was designed to facilitate such a division, reinforcing the spatial notion of fairness on which both sides seemed to base their case.

No consensus on either equidistance or equity was reached, however, and the relevant articles in the treaties therefore include allusions to both principles. In the Continental Shelf Convention, the provision relating to the division of seabed between states opposite one another reads:

Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. 496

496 Continental Shelf Convention, Article 6.

165 The provision is essentially the same for adjacent states, except that the term “equidistance line” is used in place of the median line.

Naturally, therefore, states were still free to agree on whatever boundary they desired, but a boundary deviating from one based on this provision could not be declared unilaterally. Moreover, courts were to apply the equidistance line unless another boundary was justified by special circumstances. In reality, as I will outline below, states have departed very little from the equidistance line in their maritime boundary claims, except in cases where such a line would lead to markedly unequal spatial entitlements. Moreover, they have usually followed the pattern that the equidistance line is a starting point to be modified only under these conditions. Although no list of special circumstances was given, the international courts would later develop this concept in their jurisprudence in line with the intention of the doctrine of equity. In essence, they ultimately privileged the equidistance line and conceived of special circumstances as geographical features that merited its adjustment in some cases.

To recapitulate, though there was a firm division between those states that advocated the codification of the equidistance or median line principle and those that wished to see equity invoked in the provisions on maritime boundary delimitation in the Geneva Conventions, the positions of the two sides were justified in similar terms. Those favouring equidistance lines argued that this formula divided the maritime area in an objective fashion so that each country received the maritime areas nearest their own coasts. Those who advocated delimitation proceeding on the basis of equity accepted the premise of this argument, but argued that the configuration of coastal geography in certain circumstances delivered an inequitable result that was not as equal as it seemed.

Thus, equity was understood as having a concrete meaning. This ensured it should not be possible to gain control of a disproportionate amount of resources through the unilateral delimitation of a maritime boundary with a neighbour any more than it would be by unilaterally pushing seaward the limits of national jurisdiction. Reinforcing the influence that territoriality had over the construction of the offshore property rights regime, the debate over how to define maritime boundaries also revealed that a spatial and geographical conception of justice and equitability defined how maritime space was to be apportioned.

166 Indeed, geography played a key role in the construction of maritime resource jurisdiction. In essence, coastlines were conceived as affecting how maritime boundaries were to be delimited, because it was coasts that were to generate all maritime zones. This fundamental principle of proximity provided a further normative justification for the allocation of maritime space.

The Land Dominates the Sea

Posner and Sykes have described reasons why states may value the areas of sea proximate to their coasts, but they put at the heart of this understanding an economic calculation, ignoring – albeit self-consciously – the host of symbolic and other justifications that were drawn on when the contemporary marine property rights order was constructed.497 Although the ocean has historically been constructed as a separate, somewhat alien world that is the antithesis of land, it is not accurate to say that it is either geographically or socially unrelated to territory and the state. Indeed, as the different maritime zones were constructed, they were understood as having a natural relationship with the land: this relationship moderated the sense of separateness of the ocean to land territory, which had otherwise led to the wholly different means by which marine space was allocated. Indeed, the territorial sea is accorded social significance by the role it plays in protecting the state, acting as a kind of buffer and a secondary space of the state. It had for decades been an exception to the rule of the freedom of the seas as it was situated around the coasts of each coastal state. The configuration of the maritime zones created in the second half of the twentieth century was an evolution of existing principles in this respect, even though the rationale and significance of these zones was quite different from that of the territorial sea.

To be sure, states often understood the construction of maritime zones as less revolutionary than has often been considered by commentators. The representative from Peru at the first UN Conference emphasised that neither the continental shelf nor the “inherent right of the state to exploit and conserve natural resources of the sea near its coast... constituted a break with any former international law; they were merely new developments attributable to scientific progress.”498 Indeed, in the North Sea Continental Shelf 497 Posner and Sykes, 'Economic Foundations'. 498 Statement of Mr Letts, Peru, 7th meeting of the 4th committee of the First United Nations Conference on the Law of

167 Cases of 1969, the International Court of Justice had articulated the fundamental basis of offshore jurisdiction: that “the land dominates the sea.”499 In other words, it was title to and sovereignty over territory that generated rights to extend jurisdiction seaward. This legal principle was unquestioned throughout the process of constructing the property rights order at sea. However, it was accorded social significance not only because it was an established legal doctrine and was economically efficient. A series of geographical, biological, economic and social relationships between land and sea reinforced the role that the doctrine of proximity played in the construction of coastal states' offshore zones. These relationships naturalised the basis on which marine zones were allocated and, therefore, the doctrine of proximity went unquestioned as the marine property rights order was established last century.

The Continental Shelf

The Continental Shelf doctrine, first propounded by the United States in 1945 sought to extend US jurisdiction and control to the resources of the continental shelf, but it relied on a proximity argument to delimit the area over which control was sought. The Truman Proclamation stated that, “the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control.”500 This proximity argument was advanced as the primary basis for the reasonableness of the principle. The Proclamation further declared that

it is the view of the Government of the United States that the exercise of jurisdiction over the natural resources of the subsoil and sea bed of the continental shelf by the contiguous nation is reasonable and just, since the effectiveness of measures to utilize or conserve these resources would be contingent upon cooperation and protection from the shore, since the continental shelf may be regarded as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it, since these resources frequently form a seaward extension of a pool or deposit lying with the territory, and since self-protection compels the coastal nation to keep close watch over activities off its shores which are of the nature necessary for utilization of these resources. 501

the Sea, 11 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 11. 499 North Sea Continental Shelf Case, para 96. 500 Truman, 'Proclamation', emphasis added. 501 Truman, 'Proclamation', emphasis added.

168 The Proclamation therefore drew on practical, economic, natural and security rationales for the extension of coastal state control over the continental shelf proximate to its coast. The accompanying legal memorandum went so far as to say that the United States would treat any foreign power entertaining designs over its continental shelf as a matter of national defence.502 It also stated that “no foreign state would have reason to object to utilization and conservation by the United States of undersea mineral resources within a reasonable distance of its coasts,”503 reinforcing the sense of justice with which the United States made its claim and the limited spatial nature of it.

The natural, geographical connection of the continental shelf to land became more dominant as the legal doctrine evolved over the following years, with the growth of the “natural prolongation” principle. This principle was espoused by the International Court of Justice, in the North Sea Continental Shelf Cases.

Interpreting state practice relating to the continental shelf, the judgment stated that, “although covered with water, [continental shelves] are a prolongation or continuation of [the state's] territory, an extension of it under the sea.”504 The ICJ's perspective had its precursor in the committee on the continental shelf at the first conference. The United Arab Republic's representative referred to the continental shelf as “not an arbitrary delimitation, as was the territorial sea, but a natural feature.”505 He said the continental shelf was “an integral part of the land domain that had subsequently been covered by the sea.” The USSR agreed with this natural basis for state jurisdiction over the continental shelf and stated that its resources were “a continuation, or a part, of the land resources. The coastal States were therefore justified in claiming the right to explore, exploit and protect the natural resources of the continental shelf.”506 This discourse of naturalness and geographical connection to the land helped to depoliticize and legitimate the continental shelf doctrine. Through it, coastal states differentiated their maritime expansionism from the delegitimised power based expansionism that had

502 Hollick, 'US Foreign Policy', p 48 503 Quoted in Hollick, 'US Foreign Policy', p 48. 504 North Sea Continental Shelf Case, para 43. 505 Statement of Mr Gohar, United Arab Republic, 12th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 19 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 27. 506 Statement of Mr Molodtsov, Union of Soviet Socialist Republics, 10th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 14 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 20.

169 taken place on land – and at sea – historically. States merely claimed what was naturally theirs by accident, not design, though this would later become more controversial. Added to this, geographical contiguity had become widely accepted as the basis for the first augmentation of coastal state jurisdiction over ocean resources.

To be sure, a number of states made it clear that they would consider any other basis for offshore jurisdiction untenable and that having rights over the resources close to their coasts was an approach that required little justification. Demonstrating how widespread the assumption was that the sea was accorded significance by its proximity to land, India simply stated without further explanation that a depth criterion alone for the limits of the continental shelf would produce a situation where one state could exploit the resources of another very close to its coast, and assumed that this would be interpreted as a negative development.507 The delegate from Peru went even further, suggesting that the exploitation of continental shelf resources by states close to the coast of another country would be an “absurd consequence.”508 Vietnam judged that the presence of installations of other states off the shores of a country would be a “constant security threat,”509 echoing the Truman Proclamation itself.

Even those that favoured the extraction of continental shelf resources essentially as a high seas freedom recognised that the coastal state had a legitimate interest in supervising activities off its own shore.

The Federal Republic of Germany, which was shelf-locked510 and therefore not entitled to a large portion of continental shelf, favoured a system whereby “the international community would establish the basic rules for the exploration and exploitation of the subsoil of the sea, and those rules would be supervised by the coastal State.”511 The German delegation said “the possession of those functions would certainly enable the 507 Statement of Mr Jhirad, India, 8th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 12 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 12. 508 Statement of Mr Letts, Peru, 7th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 11 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 11. 509 Statement of Mr Buu-Kinh, Vietnam, 11th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 17 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 24. 510 Shelf-locked states are those that are unable to extend their maritime jurisdictions beyond the 200nm EEZ. 511 See the statement of Mr Pfeiffer, Federal Republic of Germany, 6th meeting of the 4th committee of the First United Nations Conference on the Law of the Sea, 10 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. VI, p 8.

170 coastal State to protect its legitimate interests.” However, the German voice was very much in the minority: most states emphasised that the continental shelf doctrine was already a part of international customary law and it was a period in which most saw it as in their interests to control offshore oil on their own continental shelf. Tellingly, however, the German opposition to continental shelf jurisdiction was not a challenge to the means by which that jurisdiction would be allocated, but rather only to the notion of that jurisdiction being exclusive. In other words, the content of states' jurisdiction, not their location was of concern to Germany.

Thus, what is natural played a significant part in debates relating to national jurisdiction over the continental shelf. Indeed, the doctrine of the continental shelf has precisely often been thought to embody a

“natural” concept of boundaries, relating as it does to an objective geographical feature. That jurisdiction over it was dependent on objective geographic characteristics, served to depoliticise the significant augmentation of national jurisdiction that the continental shelf doctrine embodied. However, while this is true, the continental shelf as it came to be defined was justified in more than simply natural terms. The issue of proximity was key in justifying why this particular natural boundary was suitable. This understanding was widely appreciated by the supporters of national jurisdiction over the continental shelf and its opponents.

Living Resources

Many states advocated the expansion of national jurisdiction to the living resources of the water column as well as the continental shelf. The term “coastal state,” which had special interests in the management of fisheries resources proximate to its coasts, became standard and unquestioned early on in the process of constructing the marine property rights order. As early as the first conference, even distant water fishing nations such as the United States and the United Kingdom recognized that coastal states had these special interests, though they disagreed as to how they were to be protected. Indeed, a proposal to delete the reference in the draft treaty on fisheries conservation to the special interests of coastal states from Sweden,

Germany and Japan at the first conference was overwhelmingly defeated by 43 votes to six. The maritime states favoured giving coastal states a right to participate in conservation activity off their own coasts, whether or not they were involved in fisheries there, while many developing states favoured coastal states

171 being given exclusive rights to the living resources off their own shores beyond the traditional limit of the territorial sea.

There was a growing trend among the proponents of broader coastal state control of offshore living resources to frame those resources as already naturally belonging to them. The Santiago Declaration adopted in 1952 by three Latin American states, for example, stated the duty of every Government to conserve, protect and regulate the use of “its natural resources” and determined to preserve and make available for their own peoples the natural resources of sea areas adjacent to their coasts up to a distance of 200 nautical miles from shore.512 This pattern was repeated at the second conference where the representative from

Ceylon stated:

The smaller, the weaker, the less fortunate nations cannot be allowed to have substantial portions of their economic resources taken away from them for no reason other than that some more powerful members of the family of nations are technically better equipped to remove larger and ever-increasing proportions of the economic resources from their smaller neighbours with ever-mounting swiftness.513

Tunisia spoke of the living resources off the coasts of states as “naturally theirs.”514 Similarly in answer to the complaints of the maritime states about being deprived of their rights to fish in waters distant from their shores, the Saudi delegation stated, simply: “You can only complain of a sacrifice when you forgo a thing you own.”515 Perhaps the clearest example of this kind of thinking was the Latin American designation for their extended offshore zones – the patrimonial sea.516

Arguments relating to the natural, biological connection between the coastal state and the sea also figured in the justifications of those favouring the broadest coastal state rights to living resources. Peru's representative drew on a similar argument to those of the proponents of the natural prolongation doctrine,

512 Declaration of Santiago on the Maritime Zone, signed in Santiago, Chile, on 18 August 1952, available at: {http://treaties.un.org/doc/Publication/UNTS/Volume%201006/volume-1006-I-14758-English.pdf} accessed on 11 July 2013. 513 Statement of Sir Claude Corea, Ceylon, 15th meeting of the Second United Nations Conference on the Law of the Sea, 5 April 1960, in United Nations, Official Records of the Second United Nations Conference on the Law of the Sea, p 287. 514 Statement of Mr Bouziri, Tunisia, 19th meeting of the Second United Nations Conference on the Law of the Sea, 7 April 1960, United Nations, Official Records of the Second United Nations Conference on the Law of the Sea, p 111. 515 Statement of Mr Shukairy, Saudi Arabia, 20th meeting of the Second United Nations Conference on the Law of the Sea, 7 April 1960, in United Nations, Official Records of the Second United Nations Conference on the Law of the Sea, p 400. 516 See Vargas, 'Latin America', p 59.

172 saying that “the discharge of rivers contributed in a great measure to the growth of ocean flora and fauna; thus the land continually fertilized the oceans.”517 Practical arguments were also in evidence: the Chilean representative stated at the first Conference that coastal states were in by far the best position to regulate fisheries from a conservation perspective.518 Distant water fishermen were in a position simply to move on when they had exhausted a given stock, which provided little incentive for their states to control them effectively.

However, by far the principal justification on which these states based their claims for greater control of the resources of the water column off their coasts drew on an economic equity argument. At the

Conference, the under-developed nations stated they simply lacked the technical and financial capacity to exploit fisheries beyond the areas proximate to their own coasts. Uruguay's representative stated that such states were “therefore obliged to restrict their activities to those areas, and that it was necessary to give their needs certain priority over the needs of those other states, which possessed the means to go to other areas.” 519

The Argentine representative confirmed that “it was precisely on those principles - namely, those of the close relationship between certain sea areas and the land domain and of the economic interest peculiar to certain regions – that the measures adopted by various American States on the law of the sea were based.” 520 Even the United States had advanced similar arguments in the domestic decision-making process relating to the provisions on fisheries in the Truman Proclamation.521 Further than that, many developing countries spoke of the potential for ocean resources to contribute actively to their development, and emphasised that, in that respect, fisheries were of more fundamental importance than mineral resources.

517 Statement of Mr Ulloa Sotomayor, Peru, 15th meeting of the 3rd committee of the First United Nations Conference on the Law of the Sea, 5 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 6. 518 Statement of Mr Melo Lecaros, Chile, 10th meeting of the 3rd committee of the First United Nations Conference on the Law of the Sea, 18 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 26. 519 Statement of Mr Alvarez, Uruguay, 24th meeting of the 3rd committee of the First United Nations Conference on the Law of the Sea, 9 April 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 63. 520 Statement of Mr Ruiz Moreno, Argentina, 14th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 13 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 42. 521 The legal advisor's memorandum justifying US policy stated: “The fisheries are essential both to the coastal communities which are dependent on them for a livelihood and to allied and related industries...” Quoted in Hollick, US Foreign Policy, p 46.

173 The Philippines representative stated that “the exclusive enjoyment of the products of the sea close to the shores of a State is necessary for the existence and welfare of the people and its land territory.” 522

Similarly, in seeking to justify his support for broader coastal state jurisdiction the Chilean representative at the first conference stated that, “he would ask whether other countries would be prepared to look on with indifference while foreign fleets, sometimes of no well-defined nationality, exploited a form of natural wealth which constituted an essential source of food for people valiantly struggling to secure even a modest existence.”523 The Saudi representative agreed, saying in response to the maritime states that emphasised the subsistence needs of their fishermen that “coastal States emerging from a condition of poverty in Asia, Africa and Latin America also had to feed many millions and to balance their economies; they, surely, had prior rights to exclusive fishing off their coasts.”524 Indeed, this push for development was not justified in state- centric terms.

A trend among the supporters of broader national offshore jurisdiction was to link their calls to developing human rights norms. As early as the first conference, Peru's representative argued that the moves to greater coastal state rights offshore were “based on the modern trend towards regarding human beings as subjects of international law.”525 The ocean was, therefore, accorded social significance because of its relationship to the land, but, more important, because of its relationship to people on the land. Arguments that likened the freedom of the seas regime and the taking of fish proximate to the coasts of a state by foreign vessels to colonialism reflected this construction and also reinforced the tendency to think about the ocean as a land-like place.

Indeed, the Saudi representative already framed the ocean as a land-like place even in the absence of

522 Statement of Mr Tolentino, Philippines, 5th meeting of the Second United Nations Conference on the Law of the Sea, 25 March 1960, in United Nations, Official Records of the Second United Nations Conference on the Law of the Sea, p 72. 523 Statement of Mr Melo Lecaros, Chile, 10th meeting of the 3rd committee of the First United Nations Conference on the Law of the Sea, 18 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. V, p 26. 524 Statement of Mr Shukairy, Saudi Arabia, 44th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 12 April 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 135. 525 Statement of Mr Ulloa Sotomayor, Peru, 5th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 5 March 1958, in United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 6.

174 an agreed property rights order there, likening the process of building one to decolonisation. He said, “in the course of the dismemberment of the British Empire, Great Britain no doubt suffered immensely. But these losses were no argument against or impediment to the independence of the components of the British

Empire.”526 He concluded that the fisheries patterns of the great powers had been a legacy of the colonial system and that dismantling this old system was therefore a step in the decolonisation process. Indeed, many states advocating coastal state control of living resources off their coasts likened the freedom of the seas regime to imperialism and colonial domination, reinforcing the widespread tendency to view the ocean in land-like terms. Colonialism in this sense was problematic because it led to foreign domination, but also because it was coercive, destructive of self-determination and associated with the allocation of territory by force. In short, then, international justice as well as complete self-determination for peoples required not only freedom from domination and exploitation on land, but also freedom from domination and exploitation at sea. However, it was only conceivable that such domination and exploitation was illegitimate if it was taking place adjacent to the coastal state. The only just solution was for every state to gain control of the resources off its own coast.

Conclusion

Though the sea is conceived of as the antithesis of the land, it nevertheless retains a close relationship with it because the ocean is not geographically separate from the land. Rather, marine space is associated with terrestrial space in economic, security, natural and social senses. As a consequence, states were concerned about their own maritime backyards. It was this association which both naturalised and gave moral content to the pattern of ocean enclosure that emerged in the second half of the twentieth century. One of the fundamental tenets of maritime jurisdictions is that they would be constructed on the basis of proximity to coastal states. To be sure, early on, the logic of the coastal state's control over the continental shelf appealed to one of its early supporters, President Franklin Roosevelt. In a memo referring to the Gulf of Mexico sent

526 Statement of Mr Shukairi, Saudi Arabia, 20th meeting of the Second United Nations Conference on the Law of the Sea, 7 April 1960, in United Nations, Official Records of the Second United Nations Conference on the Law of the Sea, p 401.

175 in 1943 to the Secretary of State, he said: “It seems to me that the Mexican Government should be entitled to drill for oil in the southern half of the Gulf and we in the northern half of the Gulf. That would be far more sensible than allowing some European nation, for example, to come in there and drill.”527 Roosevelt, therefore, considered that coastal state control of the continental shelf was natural and it was his views that were carried forward by President Truman in his proclamation of 1945. Similar understandings underpinned the calls for the construction of fisheries zones later. In sum, just as the territorial sea was accorded significance by its relationship to land – and by association accorded significance by its relationship to people – the spaces further seaward, but still proximate to the coastal state, were accorded significance for the same reasons.

Just as the oceans are not physically separate from land, they are also not socially separate from international society and its fundamental constitutional norms. It is these norms that informed and justified the shape that the ocean order took. Fundamental to the whole enterprise was a persistent and universally- supported notion of the ocean as common property. Though it started life as a justification for the pursuit of national self-interests by its supporters, the freedom of the seas gradually became understood as morally and socially valuable. It was the fundamental justice of a liberal system which enabled everybody equal access to the oceans and its resources that provided the bedrock of its moral justification. Those who challenged the concept have typically been viewed as revolutionaries, intent on overturning the old order to further their own selfish interests. Be that as it may, these states drew on precisely the same moral basis for the enclosure of marine resources – the ocean is common property which states, as sovereign equals, should have an equal opportunity to use. This discourse of sovereign equality also affected the conception of maritime boundaries and the limits of national jurisdiction: maritime spaces would be divided equitably and their limits would be drawn on the basis of general principles of spatial fairness that were the same for all states.

Much like on land in the era of self-determination, the notion that some spaces naturally and legitimately belong to particular states is peculiarly modern and it contained the ambitions of states to those limited areas. This picture is in stark contrast to the early modern period in which states' ambitions were

527 Hollick, US Foreign Policy, p 35.

176 seemingly without limit, catalysing conflict and contestation over maritime space. In contrast, the modern construction of maritime space reinforces the idea that challenging ownership of another state's maritime jurisdiction is illegitimate. Though there may be contestation about exactly where to set final boundaries, states broadly accepted, and they continue to accept, that only their own maritime backyard can legitimately be subjected to their control.

That said, this order was increasingly problematised over the course of the modern development of offshore resource jurisdictions as the potential for the ocean to be converted into the sole preserve of a few states re-emerged. The re-opening of the marine property rights order to negotiation in the 1970s nevertheless demonstrated much continuity in the way states conceptualised what was the just and natural way to enclose the resources of the oceans.

177 CHAPTER 5

CONSENSUS CEMENTED: THE THIRD UN CONFERENCE ON THE LAW OF THE SEA

AND BEYOND

I would like to point out that the Convention represents a careful balance of the competing interests of all States... The balance has worked well. It has stood the test of time.

- Tommy Koh

The Third UN Conference on the Law of the Sea ran from 1973 until 1982 when the UN Convention on the

Law of the Sea was signed at Montego Bay in Jamaica. As had been the case at Geneva for the First and

Second Conferences, there were many divisions on how the ocean should be governed. States similarly promoted their conception of their own interests at the conference and sought to maximise their desired gains. Decolonisation had altered the landscape of international society, however, and a group of land-locked countries emerged to assert their interests. They were joined later by a number of geographically disadvantaged states that began to challenge the proposals for the law of the sea property rights regime on the basis that the major beneficiaries would be industrialised states. Nevertheless, once again, despite the disagreements between them, there was a consensus between all of these disparate groups of states about how maritime space should be allocated. Moreover, the principles that formed that consensus had persisted from the early efforts to construct offshore resource zones.

The following analysis first traces the events that occurred between the first law of the sea conference held in Geneva and later efforts to create a comprehensive legal order for the oceans. Concerns about the potential for an inequitable allocation of marine space re-emerged leading to the famous call for the resources of the deep seabed to be declared the common heritage of humanity. This call reinforced the ocean

178 as common property. However, the efforts to settle the shape of resource jurisdiction at sea in the 1960s were unsuccessful, catalysing the third UN Conference on the Law of the Sea. Some hard bargaining ensued, but, although many states coalesced to oppose the marine property rights order that was emerging, they did not argue for an alteration of the fundamental norms identified in the previous chapter. In short, the geographical conception of fairness and the principle of proximity exercised a continuing hold over the imagination of the decision-makers. Instead of proposing an alternative basis for maritime space to be allocated, most disadvantaged states demanded non-territorial compensation to ensure a more equitable maritime order.

Moreover, the defection of industrialized states from the proposals for the management of the deep seabed did not result in them challenging the established distribution of maritime space either. Instead, developed states directed their power resources at an alteration of the machinery for administering and exploiting the area, reinforcing the consensus on maritime boundaries that had emerged.

Decolonisation, the Law of the Sea

In 1960, the Second Conference on the Law of the Sea had ended in failure: no consensus had been forthcoming on the breadth of the territorial sea, which had been left undetermined in the Geneva

Convention on the Territorial Sea and Contiguous Zone. The maritime states had been prepared to make concessions, with many moving towards acceptance of a six nautical mile territorial sea. Additionally, appreciating that large numbers of nations used broad territorial sea claims to gain control of resources, they signalled their willingness to allow fishing zones of a further six nautical miles. Proposals for a fishing zone varied, with some advocating exclusive coastal state rights to living resources within these zones and others asserting that they should be subject either indefinitely, or for a specified time, to historic fishing rights. Such fishing zones were an innovation in the law of the sea and continued the historic shift to functional sovereign rights over resources at sea that began with the development of the continental shelf regime. Demands for fishing zones would be vocal as international society moved towards another round of ocean law-making.

It was not until 1967, with Arvid Pardo's speech to the General Assembly, that renewed momentum was achieved for a further Law of the Sea Conference. In his speech, Pardo invoked the possibility of

179 unfettered expansion of coastal state continental shelf claims and pointed out that if claims from all landmasses extended to the median lines with opposite coastlines, countries that possessed remote islands would gain disproportionately. Perhaps of even more concern – similar to that of some states at the first conference – was the prospect that industrialised coastal states would use the exploitability criterion in the

Continental Shelf Convention for their own ends by carving up nearly the whole ocean in their favour. He said:

The wording of the Convention, whatever may have been the intentions of its authors, provides powerful legal encouragement to the political, economic and military considerations that are inexorably impelling technologically advanced States to appropriate the sea-bed and the ocean floor beyond the 200-metre isobath for their own use.528

As well as registering his concern that a competitive scramble could lead to conflict, Pardo also highlighted the distributional effects of such an outcome. It would, he said, “entail not only immense prejudice to all land-locked countries but also to most of the coastal states that do not have the requisite technical competence to exploit the ocean floor.”529 He spoke of the “intolerable injustice that would reserve the plurality of the world's resources for the exclusive benefit of less than a handful of nations.” 530 Indeed, he foresaw that the inequity of carving up the ocean floor in this manner would in itself be a source of conflict, reinforcing the notion that the prohibition on conquest at sea as well as that on land is strengthened by a property rights order that is deemed legitimate. Pardo's concerns further illustrate the understanding that the ocean is international property, which should not be converted exclusively to the use of only a handful of states.

He therefore voiced an idea that gave unquestionable force to this construction of marine space: that the resources of the deep sea bed be designated the common heritage of humanity. Negating the worst of

Pardo's fears, the international community overwhelmingly supported his proposal in UN General Assembly

Resolution 2340, which, recognised

528 Statement by Arvid Pardo, 22nd session of the United Nations General Assembly, 1 November 1967, para 64. 529 Statement by Arvid Pardo, 22nd session of the United Nations General Assembly, 1 November 1967, para 70. 530 Statement by Arvid Pardo, 22nd session of the United Nations General Assembly, 1 November 1967, para 91.

180 that the exploration and use of the sea-bed and the ocean floor, and the subsoil thereof... should be conducted in accordance with the purposes and principles of the Charter of the United Nations, in the interest of maintaining international peace and security and for the benefit of all mankind.531

Even the powerful industrialised states supported the resolution, signalling their desire not to nationalise vast areas of marine space for their own benefit. Indeed, they had been concerned that if they made extensive offshore claims, it would open a pathway to similar claims from other states, reinforcing the notion that rights at sea were thought of as reciprocal in geographical terms.532 In other words, even they did not conceive of making exclusive claims to the whole area beyond the geological continental shelf.

In the meantime, the movement in international society for extensive coastal state control of offshore living resources had gained a momentum that was becoming impossible for developed countries to resist.

What started as an effort to resolve the legal status of the deep seabed, therefore, grew into a call for a third law of the sea conference, which would reopen all of the thorny issues relating to ocean governance in recognition that they were interrelated. Indeed, developing states, particularly in Latin America, were not satisfied with the prospect of being granted only narrow rights to the living resources off their coasts.

Continuing their role at the forefront of expanding state jurisdiction at sea, a group of Latin

American states – Argentina, Brazil, Ecuador, El Salvador, Nicaragua, Panama, Peru and Uruguay – met on 8

May, 1970. They adopted the Montevideo Declaration on the Law of the Sea, which described it as a basic principle that states should be able to establish their maritime sovereignty “in accordance with their geographical and geological characteristics and with the factors governing the existence of marine resources and the need for their rational utilization.”533 They determined to defend their position cooperatively with one another.534 A similar declaration was adopted in Lima three months later in a conference attended by twenty

531 United Nations General Assembly Resolution 2340 'Examination of the Question of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Underlying the High Seas Beyond the Limits of Present National Jurisdiction, and the Use of their Resources in the Interests of Mankind', United Nations General Assembly, 25th s. 18 Decemeber 1967. 532 Powerful maritime states, such as the USA, were eager to forestall expanded national claims, so supported the very concept of an area beyond national jurisdiction for this reason. See Hollick, US Foreign Policy, chapter 7. 533 Declaration on the Law of the Sea Montevideo, 8 May 1970, available at: {http://iea.uoregon.edu/pages/view_treaty.php?t=1970- MontevideoDeclarationLawOfSea.EN.txt&par=view_treaty_html} accessed on 12 July 2013. 534 Anand, Origin and Development, p 199.

181 Latin American states and various observers, including Canada, Iceland, India and South Korea.535

In June 1971, the Oragnization of African Unity Council of Ministers met in Addis Ababa and supported moves towards the extension of fisheries jurisdiction by African states to the limits of their continental shelves.536 June 1972 saw a meeting of Caribbean states where the concept of a patrimonial sea was endorsed in the Santo Domingo Declaration.537 In short, the trend towards broader coastal state jurisdiction at sea was gathering pace throughout the world outside of the developed core. Thus, while in

1960, thirteen states had claimed a territorial sea up to 12 nautical miles, by 1974 this number had ballooned to fifty-four. A further seventeen claimed sovereignty over distances ranging from fifteen to two hundred nautical miles from shore.538 Exclusive fishing zones were also declared extending between twenty and two hundred miles from the coast by many African and Asian states.

Thus, varying claims to maritime jurisdiction persisted after the first and second Conferences on the

Law of the Sea. All the while, technology was developing and enabling exploitation of seabed resources to move further and further offshore. The oil lobby in the United States vociferously promoted the idea that the whole continental margin should be brought under national control and was backed by the Department of the

Interior.539 Latin American states also favoured this approach, expressing their position in the Santo Domingo

Declaration.540 Several commentators, encouraged by the exploitability criterion in the Geneva Convention, advocated the extension of continental shelf rights too. The Committee on Deep Sea Mineral Resources of the American Branch of the International Law Association stated in its Interim Report of 1968 that:

As a general rule, the limit of adjacency may reasonably be regarded as coinciding with the foot of the submerged portion of the continental land mass. There is strong support for this view in the drafting history of the Convention, although other interpretations have been advanced.541

This definition was adopted by the US Senate Subcommittee on Outer Continental Shelf in 1970. Unilateral

535 Anand, Origin and Development, p 200. 536 Anand, Origin and Development, p 200. 537 Sanger, Ordering the Oceans, p 62. 538 Anand, Origin and Development, p 198. 539 Hollick, US Foreign Policy, p 210. 540 See Vargas, 'Latin America', p 65. 541 Quoted in Anand, Origin and Development, p 201.

182 expansion at sea, therefore, continued to be relatively ordered and consistent with the norms identified above. Nevertheless, official policies like these542 began to put pressure on the regime negotiated in Geneva, which mounted throughout the late 1960s.

Efforts to resolve seabed exploitation rules without the convening of a major new conference were also unsuccessful. The United States remained eager to limit claims to national jurisdiction in order to preserve navigational freedoms. However, it also wished to gain control of resources, so in 1970 the Nixon

Administration made a proposal for states to have sovereign rights over minerals off their coasts to a limit of twelve nautical miles or to the 200 metre isobath, whichever was further seaward. Beyond this would be a trusteeship zone in which coastal states would license exploration and exploitation activities and royalties would be paid to an international fund.543 An international regime would be established to administer the resources beyond the continental margin and royalties would be contributed to a development aid fund. 544

This proposal was rejected by developing countries, reportedly either due to a lack of knowledge about the effect of the proposal or because they feared that they would be forced to license foreign companies to exploit their resources. Some developed countries, too, took issue with the equitability of the proposal, noting that the US continental margin was almost entirely within the 200 metre isobath, unlike their own.545

Thus, the Third United Nations Conference on the Law of the Sea opened its first of eleven sessions in 1973. The delegates agreed that the conference would make decisions based on consensus rather than using majority voting as had been the case at the first two conferences. This procedure was designed to protect the interests of all the participants at the conference, an idea which was understood to contribute to its legitimacy and its aim to fostering peace and security. Jens Evensen, a major figure in the negotiations summarised the position as follows:

From the outset of the conference, it was strongly felt that it would be an exercise in futility to draw up a draft convention that would be unacceptable to one or more main groupings within the UN, be it the superpowers, the so-called Group of 77, viz. the developing countries of the world, the bulk of the industrialized countries, or the

542 Some 31 states had granted concessions, made agreements or issued decrees relating to areas beyond 200 metres depth by 1970. Anand, Origin and Development, p 202. 543 See Hollick, US Foreign Policy, p 227. 544 Sanger, Ordering the Oceans, p 60. 545 Sanger, Ordering the Oceans, p 61.

183 group of so-called landlocked and geographically disadvantaged countries. If any of these main groupings remain outside the convention, the conference has failed in one of its main functions, namely to create a political and legal system for the oceans acceptable to all, thereby making an exceptional contribution to detente and the lessening of tension in the world.546

Inclusion, therefore, was understood to be essential to the success of the treaty, but negotiations could not realistically be undertaken with the involvement of the whole conference.

The main negotiating was delegated to groups from three main committees. One discussed the regime for the deep seabed beyond national jurisdiction. The second addressed a number of issues: these ranged from the territorial sea and contiguous zone, to the EEZ, Continental Shelf, the high seas regime and the rights of land-locked and geographically disadvantaged countries. The third committee dealt with the marine environment. Key property rights-related priorities on the agenda were the breadth of the territorial sea; the proposal for an exclusive economic zone; the definition of the continental shelf; and the regime for the deep seabed beyond national jurisdiction.

The 1960s had been an intense period of decolonisation, with many new states being added to the membership of the United Nations. This trend continued throughout the first sessions of the conference in the

1970s. Overwhelmingly developing countries, these new nations bolstered the numbers of those calling for greater coastal state control of offshore resources as part of the growing trend for such states to demand sovereignty over their natural resources.547 With the substantial shift in the international community brought about by so many new states, those governments advocating greater exclusive rights for coastal states were now firmly in the majority and so the calls for a broader territorial sea as well as an exclusive economic zone received wide approval even before the conference began. Friedheim concludes that “from the beginning of the conference, it was obvious to all but stakeholders in distant-water fisheries that the world's states were ready for a change of regime.”548 All that had to be worked out was what the shape of that regime would be.

546 Evensen 'UNCLOS', p 8. 547 See Evensen 'UNCLOS', p 3 and Nico Schrijver, Sovereignty Over Natural Resources: Balancing Rights and Duties, (Cambridge: Cambridge University Press, 2008). 548 Friedheim, Negotiating the New Ocean Regime, p 138.

184 Continuity and the Third Conference

Importantly, all the major assumptions about the allocation of maritime space from the earlier conferences remained in tact at the beginning of the third conference. The proposals on the table showed that each and every coastal state was to be entitled to maritime zones off its own coast. Indeed, the overwhelming majority of states signalled their assent to a territorial sea of twelve nautical miles. The proposals for an Exclusive

Economic Zone seaward of the territorial sea also received wide support in the opening plenary of the conference and support for continental shelf rights remained strong. Moreover, the debate over maritime boundary law exhibited striking similarity to the first conference: some states favoured the objective equidistance line, while others supported equity being the formula for delimitation.

However, later on it became clear that there was going to be a great deal of controversy in defining exactly what the property rights order at sea would be. Two of the most controversial issues at the conference related to where the outer limits of national jurisdiction over the water column and the Continental Shelf should be located. There were early calls, particularly from developed countries, to restrain the breadth of coastal state jurisdiction over living resources. However, at the Caracas session, many coastal states were in agreement that the limits of the Exclusive Economic Zone would be no further seaward than two hundred nautical miles, which was a distance that ensured ninety per cent of fisheries would fall within the jurisdiction of coastal states.549 Over one hundred states spoke in favour of this distance.550 Ultimately, the concerns of the maritime and fishing states evaporated quickly when the USA and USSR changed their position to support the 200 mile zone.551

Defining the extent of the continental shelf was key as it would form the boundary of “the area" – the deep seabed beyond national jurisdiction, the resources of which would be the common heritage of humanity. Broad margin states – those with natural continental shelves that extended far into the ocean – were keen to ensure that as much natural resource-bearing seabed was under their jurisdiction. Their interest

549 Robin R. Churchill and A. Vaughan Lowe, The Law of the Sea, Manchester: Manchester University Press, 1988), p 134. 550 Sanger, Ordering the Oceans, p 63. 551 See Hollick, US Foreign Policy, p 357. The USA abandoned its opposition to the EEZ regime in 1976 after it enacted the Magnuson Fishery Conservation and Management Act, which established a 200 nm fishery zone.

185 in this outcome was reinforced by the oil crisis of 1973, which reportedly played no small part in encouraging a convergence of US policy with the rest of the countries favouring a broad continental shelf definition.552 However, a new group of states emerged as a powerful force in negotiations: the land-locked and geographically disadvantaged. Particularly towards the latter stages of the conference, these two groups of states coalesced to oppose the shape of the maritime property rights order that was emerging.

The Land-Locked and Geographically Disadvantaged

During the first Conference on the Law of the Sea, the Bolivian representative commented that “the present occasion was the first on which all the land-locked countries had attended a maritime conference. Such an event would have been surprising only two decades ago, but now it surprised no one.” 553 Nevertheless, the land-locked states had at that time generally accepted that their only interest related to the area of the high seas, which they wished to remain as large as possible in order to facilitate free navigation. They were, of course, also concerned with access rights to the ocean and wished to have the entitlement to transit the territories of neighbouring states in order to get it. While coastal states were not making immense claims to offshore jurisdiction, the land-locked states were content to play only a secondary role in the shaping of the law of the sea property rights order. However, the growing demands of states seeking to extend their control offshore led to land-locked states becoming bolder in asserting their interests.

They were joined by a large group of so-called geographically disadvantaged states, which were nations that would be prevented from enjoying the full benefits of the proposals being considered. For example, they might be unable to take advantage of a two hundred nautical mile EEZ because of the presence of another land mass near their coasts or they might have unfavourably configured coastlines which would prevent them from extending their maritime jurisdiction seaward. As the conference progressed, they became increasingly aware that the developed states of the world would be the major beneficiaries of ocean enclosure.554 Consequently, these states, in combination with the land-locked, sought to temper the potential

552 Hollick, US Foreign Policy, p 261. 553 Mr Iturralde, Bolivia, 7th meeting of the 1st committee of the First United Nations Conference on the Law of the Sea, 7 March 1958, United Nations, United Nations Conference on the Law of the Sea: Official Records, Vol. III, p 16. 554 The Nigerian delegate said: “We found out much later that the economic zone concept helped the developed

186 excesses of the coastal states which fronted large expanses of ocean, and which stood to gain substantially from the institutionalisation of exclusive economic zones extending many miles off shore. These countries also opposed the broad margin states, whose geological continental shelves extended beyond two-hundred nautical miles. However, the challenges launched against the property rights order that seemed to be emerging did not contradict, and in fact reinforced, the fundamental principles underlining the proposals for the ocean property rights regime that had emerged gradually over the previous few decades.

The land-locked, in particular, drew on the same common property understanding as developing coastal states had done in 1958 to stake their claim to a legitimate right to the resources of the oceans. The summary of the third conference states in reference to maritime resources that one land-locked country,

Bolivia,

called for the granting to land-locked countries fair, and in some cases preferential, participation in the use of those resources, since any extension of State sovereignty or State jurisdiction, involving as it did the appropriation of part of the res communis of the sea, should at the same time make it incumbent on the beneficiary States to compensate the other members of the organized international community, in particular land- locked States which, owing to their geographical position, lacked the capacity to expand.555

Bolivia recognised that it was not in a position to make exclusive claims to national jurisdiction offshore itself, thereby reinforcing the consensus that had emerged before the conference on the means by which offshore jurisdiction would be allocated. However, its delegate drew on the common property construction to assert his country's legitimate interest in the marine order. Indeed, the land-locked and geographically disadvantaged states pursued a number of different avenues for maximising their rights in the oceans, none of which questioned the fundamental assumptions on which the ocean property rights order was based. One strategy was to try to ensure that the area beyond national jurisdiction – the resources of which were the common heritage of mankind – was as large as possible by attempting to moderate the ambitions of broad margin states to bring the whole continental shelf under national administration.556

countries most. It became clear when the United Nations produced its map in 1978. At Caracas nobody among us had any maps marked up.” Quoted in Sanger Ordering the Oceans, p 64. 555 Mr Medeiros Querejazu, Bolivia, 28th meeting of the 2nd session of the Third United Nations Conference on the Law of the Sea, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. I, p 105. 556 See, for example, the statement of Upadhyaya, Nepal, 39th meeting of the 2nd session of the Third United Nations

187 Many delegations at the conference proposed that the limits of the continental shelf should be fixed at a specified distance from the coast. A large number who advocated this solution suggested that the continental shelf regime should be subsumed within that of the Exclusive Economic Zone. The advantages of choosing such a limit were said to be that, unlike the somewhat arbitrary natural prolongation principle, it was fair and that the limit was easy to determine. Moreover, it would leave a greater portion of the seabed beyond national jurisdiction. Another suggestion was that the extent of coastal states' rights should be determined by reference to a particular depth. However, this idea suffered as much as the natural prolongation principle from a certain arbitrariness as it would provide some states with extensive entitlements, while others would barely receive anything.557 But while these proposals would have restricted the seaward limits of the continental shelf, they did not fundamentally challenge the normative consensus that underpinned the ocean property rights regime. The continental shelf would still be a national zone contiguous to the coastal state, it would simply have different limits to those favoured by the broad margin states.

Some countries challenged the emerging shape of the maritime jurisdictional order more fundamentally. A bolder proposal emanated from some members of the group of land-locked and geographically disadvantaged states: regional economic zones should be created in which the states of the region, whether coastal or land-locked, would have exclusive rights to the resources. The representative of

Lesotho explained the concept, saying that

His country supported the establishment of a regional resources zone in the international sea area superjacent to the territorial seas of coastal states. Such a regime would have the effect of limiting the jurisdiction of all coastal states to the extent of their territorial seas. At the same time, it would give them equal participation with all other states of the geographical region in the regional resources of the zone.558

Conference on the Law of the Sea, 12 July 1974, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. I, p 171. 557 See, for example, the statement of Mr Riphagen, Netherlands, 34th meeting of the 2nd session of the Third Untied Nations Conference on the Law of the Sea, 9 July 1974, n United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. I, p 141. 558 Statement of Mr Molapo, Lesotho, 20th meeting of the of the 2nd session of the 2nd committee of the Third United Nations Conference on the Law of the Sea, 30 July 1974, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. II, p 164.

188 The proposal was not as significant a departure from the proposals for national economic zones as might be thought. It still relied on a principle of proximity in so far as it was an exclusive zone off the coasts of a particular region for the states of that region only. It should be noted that no alternative principles for delimiting these zones was suggested, so it might be presumed the proposal was to do so on the same basis as had been suggested for national zones. Moreover, nobody suggested creating zones with no relationship to land and nobody suggested giving a particular region the right to establish exclusive zones off the coasts of other regions.

The land-locked states, in particular, relied on precisely some of the same natural proximity arguments that the coastal states had employed in 1958. They argued that the oceans were fertilised not only by the discharge from the rivers of coastal states, but also by those originating within the territories of land- locked states. A similar logic was suggested for the continental shelf: for example, the Netherlands asserted that “the sea-bed and subsoil constituted a natural prolongation of the territories of all States, land-locked, coastal or island.”559 However, while attempts to limit spatial jurisdiction and proposals for access rights or even regional zones did not challenge the basic idea of offshore jurisdictions over resources and where they would be, some states nevertheless did challenge in varying degrees the very project of dividing the oceans into exclusive resource zones.

The Federal Republic of Germany had been a vocal critic of the territorialisation of the ocean throughout the process of constructing offshore jurisdiction for coastal states. In justifying its position,

Germany's representative drew on equity concerns, saying that

an exclusive economic zone would mean that those resources would be monopolized by a limited number of coastal, mostly developed, states. His delegation could not agree that such a regime was more equitable than the existing regime of the high seas, which at least offered all states equal opportunities to share in the common resources of the ocean.560

559 Statement of Mr Riphagen, Netherlands, 34th meeting of the 2nd session of the Third United Nations Conference on the Law of the Sea, 9 July 1974, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. I, p 141. 560 Statement of Mr Janicke, Federal Republic of Germany, 24th meeting of the 2nd session of the 2nd committee of the Third United Nations Conference on the Law of the Sea, 1 August 1974, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. II, p 191.

189 Other countries made more limited proposals: for example, Sweden suggested that only developing countries and countries to whose economy fishing was essential should be entitled to declare Exclusive Economic

Zones, while the waters off most developed countries would remain high seas, open to fishing by anybody. 561

Critically, however, while these proposals challenged the whole project of constructing exclusive property rights offshore, they did not challenge the principles on which the shape of the proposed regime was based.

Besides, these kinds of proposals were very much in the minority, with the Netherlands recognizing

“the trend of opinion was rather to enlarge the sea areas to be placed under the national jurisdiction of some coastal States.”562 Ultimately, there would be neither a full nor partial return to the historic system of the complete freedom of the seas. Nor would there be any major alterations to the maritime zones that were proposed at the beginning of the conference in 1973. Those states favouring such outcomes were simply too few in number and weak in bargaining resources to impose their preferences on others. The territorial sea was extended to twelve nautical miles from a country's baselines and the Exclusive Economic Zone was created – itself extending up to 200 nautical miles. Finally, a convoluted formula for determining the limits of the continental shelf was established that enabled the coastal state to extend its jurisdiction over a sufficient extent of seabed to ensure that most of the hydrocarbon resources there would be under its control.

However, the land-locked and geographically-disadvantaged states would be compensated.

Indeed, another central argument from the geographically-disadvantaged, and particularly the land- locked states, was that they should receive some kind of right to access the resources of the maritime zones of the coastal state. The coastal states offered a preferential right for land-locked and geographically disadvantaged states to exploit the surplus fisheries that they themselves could not catch in their exclusive economic zones. Most, however, were wholly resistant to the notion that states other than the coastal state should have any right to the resources of the continental shelf. Given that direct access was not forthcoming, some land-locked and geographically disadvantaged states suggested that a proportion of the revenues from

561 Statement of Mr Lidbom, Sweden, 23rd meeting of the 2nd session of the Third United Nations Conference on the Law of the Sea, 1 July 1974, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. I, p 77. 562 Statement of Riphagen, Netherlands, 34th meeting of the 2nd session of the Third United Nations Conference on the Law of the Sea, 9 July 1974, in United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Vol. I, p 141.

190 exploitation of the continental shelf and indeed the EEZ should be paid into a fund and distributed equitably to compensate those that did not benefit from the regime of ocean property rights. Though it had some initial support, this common heritage fund proposal came rather too late in the conference and ran against the grain of expansive national offshore claims.563

Ultimately, then, it was the lesser proposals that were incorporated into the text of the Law of the Sea

Convention. The surplus that a coastal state was unable to harvest in its EEZ was to be made available to third states, with preferential rights for the land-locked and geographically disadvantaged. 564 This provision was somewhat weakened as the coastal state alone was to determine the total allowable catch in its EEZ and its decision could not be challenged under the UNCLOS dispute resolution mechanism. With regard to the continental shelf, although no direct rights of access were accorded to its resources for third states, a system was set up whereby the coastal state would contribute a percentage of the revenues from production taking place on its extended continental shelf beyond 200 nautical miles from its baselines.565 One per cent of revenues were to be contributed to a fund administered by the International Seabed Authority after five years of production, rising by one per cent each subsequent year to a maximum of seven per cent. Instead of challenging the basis of the marine property rights order that emerged early on in its genesis, then, the ultimate outcome in UNCLOS provided a system of non-territorial rights to compensate the land-locked and geographically disadvantaged. These rights were precisely to preserve that early consensus, which remained unchallenged even by those who did not benefit from it.

The provisions on maritime boundary delimitations were also modified from the Geneva

Conventions, but continuity rather than change marked the debates that led to these changes. The positions of the parties on the two sides of the debate were identical to those adopted at the prior conferences, though the delegates were unable to reach agreement on either standard. As a consequence, the outcome in UNCLOS is a somewhat uneasy compromise between the preferences of the two sides. Neither the median or equidistance line was mentioned, nor special circumstances. The following ambiguous formula was chosen

563 See Logue, 'Moment of Choice'. 564 UNCLOS Art. 62(2). 565 UNCLOS Article 82.

191 for the Exclusive Economic Zone and the Continental Shelf: “Delimitation... shall be effected by agreement on the basis of international law... in order to achieve an equitable result.”566 This outcome was criticized by those states who wished to see more precise guidance for the delimitation of maritime boundaries. 567

However, the essentials of the 1958 formulation were retained; delimitation could not be a unilateral act; the reference to international law hinted at objective rules and encouraged courts and tribunals to refine the provision to give it a more precise character; and the equitable result accommodated the wishes of those disadvantaged by a strict application of equidistance.

The Conference also reinforced the understanding of the ocean as a space that should support the self-determination of peoples rather than perpetuate domination. This principle was illustrated by the discussions relating to which states would be able to generate EEZ and continental shelf rights. Many former colonies were eager to ensure that those states which retained imperial possessions would not be able to benefit from the maritime resources off the coasts of these colonies. However, they were equally concerned to ensure that the peoples that continued to be subject to colonial domination would receive the benefits of these resources. Instead of denying these areas maritime zones, therefore, the conference determined to publish a resolution. In it, the conference declared that

In the case of a territory whose people have not attained full independence or other self-governing status recognized by the United Nations, or a territory under colonial domination, provisions concerning rights and interests under the Convention shall be implemented for the benefit of the people of the territory with a view to promoting their well-being and development.568

Once more, then, marine space was understood as having a relationship with land, but also a relationship with the people that lived on that land.

Although the ultimate outcomes of the effort to shape the marine property rights order in 1970s and

80s was the product of hard bargaining, it is not the case that the zones that were created lacked social significance or were somehow not the product of a consensus about legitimate behaviour. Indeed, that consensus persisted from the first and second Conferences on the Law of the Sea and was rooted in a

566 UNCLOS, Articles 74 and 83. 567 Johnston, Theory and History, p 164. 568 UNCLOS, Resolution III.

192 conception of the ocean as common property in which every coastal state had a stake. The growing numbers and political awareness of land-locked and geographically disadvantaged states meant, however, that more voices had to be accommodated in the compromise. These states drew on the common property norm to legitimate their interest in marine space, while, significantly, those that actively opposed the shape of the order that was created did not suggest alternatives that conflicted with the fundamental norms which shaped the original proposals. Still they assumed that every coastal state, or coastal region, would receive its own entitlement to offshore jurisdiction, that they would do so on the basis of proximity and that the boundaries set would be on the basis of general principles which were rooted in notions of spatial equity. The compromise that was crafted involved those states that lost out in this drawing of maritime boundaries being compensated with non-territorial rights to access the EEZs of neighbours and to revenue from extended continental shelves. Most important, however, was that these states would be compensated from revenues generated by the exploitation of resources beyond national jurisdiction. Indeed, the so-called 'area' and its resources became the centre of the agenda to introduce equity into the ocean regime.

Power Politics and the Deep Seabed

The regime governing the deep seabed beyond the limits of national jurisdiction was one of the most controversial subjects at the third Conference on the Law of the Sea. The now-familiar division between industrialised and developing states characterised the debate about how the area should be governed, with the former preferring a liberal regime and the latter a more developed system for active exploitation by an international authority. Led by the United States, the developed countries ultimately defected from the provisions detailing how the deep seabed would be administered and refused to sign UNCLOS until their demands were met. This unilateral option was available to these states because it was only they who possessed the technology to mine the deep ocean floor and they had already succeeded in preserving their interests in the rest of the Convention.

Consequently, these states made arrangements to exploit the resources of the area themselves, but they did so under the old regime of the freedom of the seas. Thus, although the developed countries

193 threatened to undertake activities that the third world states viewed as functionally equivalent to converting large parts of the ocean into their sole preserve, they never did take the full step of reducing the area to their exclusive sovereign control. All states were agreed that claims of sovereignty beyond the zones of national jurisdiction would not be recognised: this was the strongest statement outlawing territorial aggrandisement in

UNCLOS. In 1994, the international community succeeded in finding a compromise that enabled most countries to finally join the convention that they had been negotiating since the 1970s.

Indeed, after Arvid Pardo's speech in 1967, the United Nations General Assembly established the

Seabed Committee to investigate the issues. At its suggestion in 1969, the General Assembly, which was now dominated by developing states, adopted the 'moratorium resolution,' which directed that no exploitation of deep seabed resources should take place until a suitable international regime and machinery had been established to administer the process. The resolution stated that “no claim to any part of that area or its resources shall be recognized.”569 Sixty-two states voted in favour of the resolution, with twenty-eight states

– mostly industrialised – voting against and the same number abstaining. A year later, the General Assembly adopted a second resolution, which consisted of a Declaration of Principles that designated the minerals of the deep seabed as the common heritage of humanity. They must, it said, be exploited for the benefit of humanity as a whole, particularly taking into consideration the needs of the developing countries. 570 A large majority – 108 states – voted in favour of this resolution with only fourteen abstaining.

The resolution, however, did not precisely define what the common heritage principle was to mean and how it was to be implemented, which was to be fleshed out at the third conference. Maritime states were somewhat ambivalent about the principle, which, early on, they understood as simply another name for the freedom of the seas.571 Additionally, they saw the rules and prescriptions embodied in the moratorium

569 United Nations General Assembly Resolution 2574 D (XXIV) 'Question of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Underlying the High Seas Beyond the Limits of Present National Jurisdiction, and the Use of Their Resources in the Interests of Mankind', 24th session, 15 December 1969. 570 United Nations General Assembly Resolution 2749 (XXV) 'Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction', 25th session, 17 December 1970. 571 Friedheim, Negotiating the New Ocean Regime, p 233.

194 resolution and Declaration of Principles as moral, rather than legal ones. 572 After all, they were the ones developing technology that could be utilised in the exploitation of the resources of the deep seabed and were eager to maintain their access to it. Despite these interests, the developed states did not go so far as to claim ownership of the deep seabed. Indeed, in 1971, the United States Congress considered the Deep Sea Hard

Minerals Resources Bill. The legislation provided for blocks of 40,000 square kilometres to be licensed to corporations and was backed by the mining industry. Nevertheless, the US argued that the Bill was an interim measure only and countered criticisms of its unilateralism and defiance of the moratorium resolution saying that it “did not affect the rights of any other nation to use the seabed in accordance with existing international law.”573 Moreover, President Nixon insisted that “a substantial portion of the revenues derived by a state from exploitation beyond 200 meters during this interim period should be turned over to an appropriate international development agency for assistance to developing countries.”574 Eventually, the executive decided to oppose the enactment of the Bill because of international opposition that might endanger the package it sought in the law of the sea negotiations.575

Developing countries were keen to ensure that the freedom of the seas was not used as a pretext to exhaust the supplies of deep seabed minerals before they could catch up technologically, or to damage their own domestic mining industries. Friedheim comments that “the common heritage of mankind was viewed by many developing states as the ocean manifestation of a New International Economic Order. It was to be the ocean experiment which demonstrated how a new conceptual framework could be applied to North-South economic relations.”576 They considered that the Declaration of Principles had clearly specified a legal regime that meant the wealth of the ocean deep was common to humanity. 577 Unilateral exploitation, on the

572 Anand, Origin and Development, p 204. The US State Department Legal Adviser said: “The United States considers the recommendations contained in the Moratorium Resolution an important statement to be given weight in the determination of United States policy. The United States is not, however, obligated to implement the recommendations and has made clear its opposition to the concept.” Quoted in Brown, Sea-Bed Energy, p 28. And, with regard to the Declaration of Principles, the UK delegation stated that “like any other resolution of the General Assembly, the draft declaration has in itself no binding force.” Quoted in Brown, Sea-Bed Energy, p 29. 573 Buzan, Seabed Politics, p 154. 574 Quoted in Buzan, Seabed Politics, p 155. 575 Buzan, Seabed Politics, p 156. 576 Friedheim, Negotiating the New Ocean Regime, p 230. 577 Brown, Sea-Bed Energy, p 31.

195 other hand, was illegal and would not be recognised, according to a letter written by a Group of Legal

Experts to the Chairman of the Group of 77.578 The developing states were, therefore, passionately committed to establishing a machinery that would make this shift a reality.

When the Third UN Conference on the Law of the Sea was convened, the perspectives of developing and industrialised countries were divergent. Many of the former category of states wanted a strong machinery to administer the area and for it to be given the power to regulate prices in order to ensure no damage was done to domestic mining industries. They also wished to establish a special enterprise to exploit the resources itself on behalf of humanity. The developed countries, on the other hand, wished any international authority simply to play a coordinating role by licensing entities to exploit the resources of the deep seabed. They were keen to ensure that their private corporations would be able to exploit the resources and that regulation of their activities on the deep seabed would be laissez-faire. In 1974, Deep Sea Venture, which was an arm of a deep sea mining consortium, petitioned the US State Department to recognize its claim to nodules covering 60,000 square miles of seabed. This request was refused for the time being, but developed countries knew they had substantial bargaining resources at their disposal to ensure a favourable outcome in the negotiations.579

They knew that any international machinery would be dependent on their technology and expertise.

Ultimately, they could defect and undertake deep sea mining unilaterally and this option put the developing world in a comparatively weak position. Nevertheless, in an attempt to bridge the gap between developed and developing states, in the 1974-5 Geneva session of the third conference, the Soviet Union suggested a dual regime in which both states and the authority would conduct exploitation activities in the area. The idea of joint ventures became popular, and, in 1976, Henry Kissinger proposed a 'banking' system which would involve a private or state corporation nominating two areas of seabed that it wished to exploit: one would be licensed to the entity itself to exploit, while the other would be held in reserve for future exploitation by the international Enterprise.580 Still, the developing countries, represented by the G77 insisted on a stronger

578 Brown, Sea-Bed Energy, p 34-38. 579 Friedheim, Negotiating the New Ocean Regime, p 228. 580 See Hollick, US Foreign Policy, p 316 and p 356 for Kissinger's proposals, and Friedheim, Negotiating the New Ocean Regime, p 239.

196 machinery than the developed countries were willing to accept. Further negotiations appeared to move the parties closer to a consensus. In 1980, the US head of delegation stated that there were only three areas left to resolve, one of the most important being the question of participation in the International Seabed

Authority.581

It was widely agreed that the Authority would comprise an Assembly consisting of all the parties to the treaty. The developing countries preferred a powerful Assembly with wide-ranging decision-making powers. Fearing being out-voted, the developed countries argued that only a smaller Council would be capable of efficiently making decisions. The developing states fairly quickly agreed that an Assembly would be limited to supervising the decisions of the Council.582 With this in mind they were keen to ensure that the

Council would be dominated by themselves and not give any kind of veto power to the developed countries.

Against this, the US and Eastern European Group insisted on a guaranteed seat in the Council. Moreover, the spectrum of views relating to decision-making rules ranged from an insistence on consensus by some developed states to a simple majority.583 Friedheim, consequently, concluded that the superpowers were not willing to be “treated merely as sovereign equals.”584 Various formulas found their way into the negotiating texts. They all included a Council that was to be partly elected on the basis of equitable geographical representation, with guaranteed seats for states with special interests (the land-locked, geographically- disadvantaged and least developed countries), those that produced the minerals to be mined, the largest importers and the major investors. By 1980, the conference seemed close to consensus. Then came the election of the Reagan administration.

Committed as it was to free market principles and the private sector, the Reagan administration launched a full review of the US position on deep seabed mining. The US returned to the position that the only acceptable machinery would be one that simply regulated activities on the deep seabed, leaving exploitation to be conducted by private corporations and states. Moreover, national firms would not be subject to price controls. With regard to participation in the Council, the US policy proposals suggested that

581 Friedheim, Negotiating the New Ocean Regime, p 245. 582 Friedheim, Negotiating the New Ocean Regime, p 256. 583 Friedheim, Negotiating the New Ocean Regime, p 258. 584 Friedheim, Negotiating the New Ocean Regime, p 260.

197 the seats for major investors and major consumers should be elected from two lists of seven states, with the

US included in both. Friedheim writes that, in essence, “the United States was proposing a veto system.” 585

The Reagan administration was essentially signalling its desire to defect from the deep seabed mining provisions of the treaty, knowing that it would be able to enjoy the benefits of freedom of navigation regardless as these provisions were already settled. It also considered the process of negotiating UNCLOS to have crystallised customary international law regarding these issues.586

Ultimately Part XI of the treaty established an International Seabed Authority which would regulate the mining of the deep seabed. An Enterprise was established which would exploit minerals for the benefit of humanity, but states would also be entitled to engage in mining activities. The regime was, in essence, a dual one similar to that proposed by Kissinger where states would nominate two equal sized blocs and the ISA would select one which it would reserve for later exploitation by the Enterprise. Production limits were also established to protect land-based producers and provision was made for the transfer of technology.

Decision-making procedures protected the interests of the developed states to some degree. The

Council was to be composed of thirty six states, four of whom would be from those states that either consumed or imported more than 2 per cent of world output of minerals to be derived from the area, with the largest consumer guaranteed a seat. Four more were to be selected from the eight largest investors in seabed mining. Four major exporters of minerals to be derived from the area from their national jurisdictions were also to be included. Six members with special interests were to be given seats and a further eighteen elected on the basis of equitable geographical representation. For most decisions, a two thirds or three quarters majority was required meaning that the developed states were not certain that they would be able to block all problematic decisions. However, consensus decision-making was to be mandatory for the most important questions. Also included in the provisions on the area is the strongest explicit statement in the treaty of the invalidity of territorial aggrandisement at sea. Section 2 of Part XI of the Convention states: “No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any

State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or 585 Friedheim, Negotiating the New Ocean Regime, p 262. 586 Friedheim, Negotiating the New Ocean Regime, p 248.

198 sovereign rights nor such appropriation shall be recognized.” However, the deep sea mining provisions did not attract the assent of the developed states.

Indeed, when all efforts to reach consensus on a new Law of the Sea Treaty failed, the Convention was put to a vote. Viewing their interests as not met by the rules of Part XI, several industrialised states voted against the new convention or abstained. Despite the concessions to them embodied in the Treaty, the United

States and a number of other countries, many of them developed, ultimately refused to sign the Convention.

The possible alternatives to the Convention order were discussed widely in policy circles and within academia. In particular, a mini-treaty between the industrialized states was actively proposed and its legality widely debated.587 However, the voices advocating revision of the treaty did not call for any changes to the existing boundaries of national jurisdictions, focusing entirely on unilateral or limited multilateral exploitation of the deep seabed.

In pursuit of this policy, a number of states adopted legislation to enable their own nationals to exploit the deep seabed. Most of these instruments had common features. They stated that they were interim in nature until a satisfactory international regime for exploitation of the area could be agreed. 588 Moreover, every piece of legislation made provision for the sharing of revenues from their exploitation of the deep seabed with the international community, though these commitments were on more favourable terms than those embodied in UNCLOS. The Minister who introduced it said of the Bill the UK enacted that his

Government sought to demonstrate its “good intent towards the wider international community and, in particular, to developing countries, through the raising of the levy.”589 Nevertheless, the respective governments did recognize the potential for disorder and challenges to arise from their actions, either from other states acting unilaterally or from the advocates of UNCLOS.

The concern about reactions from the supporters of UNCLOS was apparent in the deep seabed mining legislation adopted by the industrialised countries. For example, Section 102(b)(4) of the US Act said: “In the event of interference with the exploration or commercial activities of a licensee or permittee by

587 e.g. Anthony D'Amato, 'An Alternative to the Law of the Sea Convention', The American Journal of International Law, 77:2 (1983), pp 281-285. 588 Brown, Sea-Bed Energy, p 247. 589 Quoted in Brown, Sea-Bed Energy, p 263.

199 nationals of other States, the Secretary of State shall use all peaceful means to resolve the controversy by negotiation, conciliation, arbitration, or resort to agreed tribunals.”590 Moreover, the Administrator was charged with making sure that the issuing of a licence would not “create a situation which may reasonably be expected to lead to a breach of international peace and security involving armed conflict.” Licenses could be revoked for the same reason. Similarly, the German legislation made provision for licenses not to be granted if the development would “materially impair the foreign relations of the Federal Republic of Germany.” 591 In short, these powers had no desire to engage in any kind of territorial fight. It was for this reason, too, that those who sought unilaterally to exploit deep seabed minerals sought mechanisms to coordinate their activities.

In 1982, a treaty – the Agreement Concerning Interim Arrangements Relating to Polymetallic

Nodules of the Deep Sea Bed592 – was concluded between France, Germany, the UK and the United States. A second treaty – named Provisional Understanding Regarding Deep Sea-bed Matters593 – was signed by

Belgium, Germany, France, Italy, Japan, the Netherlands, the UK and the United States in 1984. They were designed to identify and resolve conflicts over overlapping claims and included a commitment not to authorise operations in areas in which authorisations were already granted or applied for. The mutual recognition of each other signatory's mining areas was also provided for. Thus, even while challenging parts of UNCLOS, itself enacted to prevent anticipated threats to international peace and security, the industrialized countries reinforced the principle that territorial conflict was abhorrent and to be avoided.

They certainly made no effort to resurrect anything like a norm of conquest relating to the oceans, nor was this even countenanced.

Similarly, the industrialized states were also able to deny that they were engaging in illegitimate expansionism. Indeed, instead of challenging the boundaries of the area by asserting substantial sovereignty

590 Quoted in Brown, Sea-Bed Energy, p 253. 591 Quoted in Brown, Sea-Bed Energy, p 254. 592 Agreement Concerning Interim Arrangements Relating to Polymetallic Nodules on the Deep Sea Bed between France, the Federal Republic of Germany, the United Kingdom and the United States 21 ILM 950 (1982) / TIAS 10562 / 1871 UNTS 276. 593 Provisional Understanding Regarding Deep Seabed Matters between Belgium, France, the Federal Republic of Germany, Italy, Japan, the Netherlands, the United Kingdom and the United States TIAS 11066 / UKTS 24 (1985) / 1409 UNTS 464.

200 claims beyond those agreed at the third Conference on the Law of the Sea, the industrialized states chose to mine the deep seabed on the basis of the freedom of the seas. They also made some concessions to the common heritage rules embodied in UNCLOS. However, as Brown concludes, “the reality was that the

Reciprocating States Regime which was based on this unilateral legislation included only a selection of features suggested by the Convention, chosen and substantially modified by the States concerned.” 594 That said, all this became immaterial as the reciprocating states regime was relatively short-lived. Realising that further concessions would be essential to preserve the common heritage principle in anything like its original guise led to renewed efforts by developing countries to bring the industrialised powers on board with

UNCLOS.

A new consensus was embodied in an agreement negotiated at the United Nations and adopted in

1994. It is beyond the scope of this analysis to discuss the agreement in detail. The material changes it wrought related only to the governance of the area, however – not its spatial definition. The 1994

Agreement595 includes a compromise between the idea of the Enterprise as an effective and independent organ and the proposal for it only to operate as part of joint ventures. The obligation to fund the Enterprise's mine sites by states parties was removed by the agreement and the provisions on transfer of technology were watered down considerably.596 The system of production policies and price controls embodied in Article 51 of UNCLOS was superseded by a requirement for seabed mining to be conducted in line with sound commercial principles on the basis of non-discrimination between terrestrial and seabed mining. Provisions on economic assistance to compensate land-based producers from the results of competition from seabed mining were also altered. One of the most important changes was that the agreement mandated that decision- making in the Council of the ISA was to be by consensus. If all efforts to reach a consensus failed, decisions are to be made by a two thirds majority vote, as long as there is not more than a majority of opposition in any of the four 'chambers' of states representing seabed mineral consumers, investors in deep seabed mining, exporters of the minerals to be exploited and developing states. The 1994 Agreement paved the way for

594 Brown, Sea-Bed Energy, p 249. 595 Agreement Relating to the Implementation of Part XI. 596 Brown, Sea-Bed Energy, p 11.

201 many of the industrialised opponents of UNCLOS, such as the United Kingdom and Canada, to sign and ratify the Convention, although the United States has continued to face domestic legislative barriers to its so doing.

Conclusion

The many challenges to the marine property rights order at the third UN Conference on the Law of the Sea and beyond did not alter the fundamental basis upon which maritime boundaries would be drawn at sea.

Industrialised countries directed their extensive bargaining resources to achieve a machinery that would operate in 'the area' to their benefit, rather than to territorial aggrandisement that would challenge the fundamental normative consensus that was apparent from the early efforts to establish a marine property rights order. Even when defecting from the treaty, the industrialised states did not seek to engage in territorial revisionism by making claims to sovereignty in the area beyond established national jurisdiction. Instead, they exercised their unilateral option on the basis of the old doctrine of the freedom of the seas and they attempted to set up their own regime to avoid conflicts. Ultimately, the industrialised states came to terms with the rest of the international community and signed a new agreement enabling them to participate fully in the UNCLOS regime. This agreement, too, sought only to modify the means of exploiting the resources of the area, rather than change its boundaries.

Similarly, the negotiations relating to the national jurisdictions that defined these boundaries were structured by the different bargaining resources of the participants. Although land-locked and geographically disadvantaged states had little leverage over the negotiations, their arguments and proposals nevertheless reinforced rather than undermined the understanding of the ocean regime that was being created. Despite the hard bargaining that occurred, no state challenged the fundamental consensus that every coastal state would be entitled to its own offshore resource zones, proximate to its own coast and defined by equitable maritime boundaries. For the ocean was conceived as common property and this fundamental norm structured the way that justice and equity was understood when allocating marine space. A spatial conception of fairness underlines the maritime boundaries that have gradually been constructed, modified and institutionalised

202 throughout the twentieth century. Furthermore, the series of geographical, economic, social and security relationships between land and sea imbued areas of ocean proximate to coastal states with normative significance. Even as countries that did not benefit from the allocation that was being pursued sought to gain extra rights and benefits for themselves, they did not challenge the consensus on how marine space would be parcelled out.

This chapter and the one before have not sought to explain all the forces that created the law of the sea property rights regime. For many interests and factors drove the negotiations, from a desire to protect freedom of navigation, to gaining access to oil and deep seabed resources.597 States unashamedly used their bargaining resources to gain outcomes favourable to them. Instead, the analysis here has explained how unspoken assumptions structured this behaviour and constrained the positions that states were willing to pursue. It also assesses why they considered the maritime order they created to be a valuable contribution to peace and security. States believed their project would ameliorate perceived problems of disorder and prevent a potential future of territorial competition and conflict at sea. But the zones they created were about more than just order – a sense of justice also informed the understanding that maritime jurisdictions should be respected. Thus, though self-determination cannot underpin the norm of territorial integrity at sea in the same way as it does on land, the ocean regime is not one that was constructed in a normative vacuum.

Maritime jurisdictions are understood as having ethical significance due to a web of understandings about appropriate behaviour at sea. By understanding each coastal state to be entitled to its own share of maritime space, the ambitions of all states were contained to their own maritime backyards.

597 For an analysis of the domestic US political process that led to the formulation of its position, see Hollick, US Foreign Policy.

203 PART III

CASE STUDIES

204 CHAPTER 6

MARITIME BOUNDARIES, ISLANDS, DISPUTES AND THE LAW

It is not incorrect to consider the impressive line of maritime boundary decisions as forming a common law in a classic sense.

- Jonathan Charney

Chapters seven and eight will examine the contemporary politics of two maritime regions. First, however, it is necessary to establish theoretical expectations of how a norm similar to territorial integrity should condition states' practices at sea. First and foremost, understanding what the norm of territorial integrity and a similar standard for marine space proscribes is essential for generating the observable implications of its effect. Though territorial conflict is surely problematic, it is not clear that conflict over land or sea need necessarily amount to a breach of territorial integrity. The following chapter outlines what we might understand as the behaviour that is proscribed and enabled by the norm of territorial integrity by distinguishing between different political acts relating to territory. It concludes that conquest of territory – and by extension maritime space – is the clearest example of a breach of the norm and that legitimate boundary disputes reinforce, rather than undermine it. This situation is particularly the case at sea where many boundaries remain to be set. Maritime claims based on legal and normative principles are, therefore, a core observable implication of the hypothesis that a norm similar to territorial integrity operates at sea.

Indeed, the international law of maritime boundary delimitation has refined the norms that underpinned the allocation of maritime space at the law of the sea conferences, but no two situations are identical and existing precedents rarely fit a different situation perfectly. This situation leaves room for genuine debate about what is required in delimiting a maritime area. Moreover, there are areas of treaty law, such as the provisions in UNCLOS relating to islands, that contain uncertainties which may give rise to

205 legitimate disputes about the requirements of that body of law as well. The second part of this chapter, therefore, highlights some areas of legal controversy and case law that are relevant to understanding the disputes examined in the following two chapters. Though the legal vocabulary in cases and treaties provides room for disputes, its use in a maritime claim signals that the world has moved on from the days when territory – whether on land or at sea – was allocated primarily by force. Therefore, a legitimate dispute will involve a state asserting jurisdiction over marine space with reference to legal arguments and provides evidence for, rather than against, the existence of a norm of maritime territorial integrity.

Further observable implications of the theory that maritime space is partly stabilised by a norm similar to that of territorial integrity relate to the way behaviour at sea is justified by actors and received by the wider international community. Norms are often most apparent when they are breached. Given that there have been no acts of conquest offshore since the maritime property rights order was created, it is not possible to examine the discourses surrounding such breaches in this study. However, there have been a number of contemporary episodes of controversial behaviour at sea in which concerns about expansionism have been present. These episodes have provided data relating to how problematic behaviour at sea is understood and the solutions that are perceived to be available to tackle it. If the norm of territorial integrity at sea exists, reactions to the potential for disorder should be similar to those evident as the law of the sea property rights order was created. Clearly, therefore, during episodes of problematic behaviour there should be apparent a resistance to the possibility for conflict over maritime spaces. Additionally, we might expect there to be a discursive conflation of land and sea in assessments of problems of potential territorial disorder as well as solutions to it. Finally, confidence in regulation and, particularly, the drawing of clear boundaries should be evident as states and other actors attempt to tackle the possibility of disorder at sea.

Territorial Integrity, Expansionism, Disputes and Conflict

Zacher suggests that the rise of a norm of territorial integrity has been evident from the declining legitimacy of conquest, but that the norm prohibits territorial aggrandisement. However, territorial aggrandisement, conquest, territorial conflict, annexations and territorial disputes must not be conflated. Territorial

206 aggrandisement could, in principle, occur in a number of ways, which can be divided broadly by the object of expansionism and the means through which it is pursued. First, territorial aggrandisement could occur by means of peaceful activity or through forceful means. Secondly, the object could be the territory of another state (or states), territory not owned by any state, or it could target territory the ownership of which is unclear. Conquest would require the violent deprivation by one state of the territory of another. 598 Simple territorial expansionism would not necessarily require an act of conquest because it could take place without the use of force and in relationship to unowned or disputed territory. Disputed territory is not clearly owned by any one state; only those states with a valid claim to it could be understood to be parties to the dispute.

Territorial conflict may take place over owned or disputed territory or even in principle over territory to which no state has a valid claim.

In these circumstances, what precisely constitutes a breach of the norm of territorial integrity is somewhat unclear. However, Zacher's main conclusion is that “[b]oundaries have not been frozen, but states have been effectively proscribed from altering them by force.”599 Consequently, it seems that it is the means by which territorial aggrandisement is pursued that is important in deciding on cases of breach and the existence of a boundary appears to assume that the object of territorial aggrandisement is the legitimate territory of another state. Despite the broader understanding of territorial integrity subscribed to by lawyers,600 then, for Zacher, the taboo against territorial aggrandisement would appear to apply, most starkly at least, to cases of conquest. In other words, the territory must legitimately belong to another state and be

598 Conquest has been defined as “a cause of loss of sovereignty when there is war between two States and by reason of the defeat of one of them sovereignty over territory passes from the loser to the victorious State.” Legal Status of Eastern Greenland Case (Denmark v. Norway) (1933) PCIJ Reports, Series A/B, No. 53, p. 46, para 101, available at: {http://www.icjcij.org/pcij/serie_AB/AB_53/01_Groenland_Oriental_Arret.pdf} accessed on 12 July 2013. Lawyers have mostly understood it as necessary for three criteria to be present for a conquest to take place: 1) effective control over seized territory after hostilities, 2) a declaration of war, and 3) a treaty of peace which recognises the transfer of sovereignty from vanquished to victor. See Blay, 'Territorial Integrity'. These criteria help to distinguish an act of conquest from simple annexation, which is a unilateral act and could happen outside the context of a war, and belligerent occupation, which can happen without the formal conclusion of a war. MacMahon also distinguishes between the political military act of conquest and the legal condition. For a detailed discussion of various definitions of conquest, see Matthew M. McMahon, Conquest and Modern International Law: the Legal Limitations on the Acquisition of Territory by Conquest, (Washington: The Catholic University of America Press, 1975), pp 3-14. 599 Zacher, 'The Territorial Integrity Norm', p 246. 600 Legal scholars tend to view the intention of a use of force within the territory of another state as not material for determining a breach of territorial integrity. In other words, no policy of conquest or forceful annexation needs to be pursued. Asrat, Prohibition of Force, p 153.

207 acquired through violent means. Given his understanding of the roots of the norm, this assessment is unsurprising. Violence is no longer understood to be of utility and is actively shunned by international society and the concept of self-determination has altered the ethical status of state territory.

However, it would seem that two acts other than conquest of another state's territory should be understood as at least problematic in the contemporary normative context: the forceful pursuit of disputed territory601 and the peaceful pursuit of territory legitimately belonging to another state.602 The latter activity would seem incongruous with a normative understanding of self-determination as ethically valuable.

Although a claim to another state's territory could be understood as harmless in so far as it is not actively pursued, it might nevertheless be understood as pernicious because of its potential implications for international order and as a signal of revisionist intentions. However, these kinds of activities would seem intuitively to be less serious than overt acts of conquest. Indeed, though problematic given the understanding of war as socially deviant, cases of forceful territorial aggrandisement relating to disputed territory would not seem to involve a breach of the territorial integrity norm at all.

Territorial Disputes and the Norm of Territorial Integrity

Given that conquest has become a taboo practice in international society and this activity involves a state acquiring the legitimate territory of another by force, discourses about ownership of territory have become important in justifying disputes in which one state claims any given area of territory. For example, Saddam

Hussein's government partly justified Iraq's attempted annexation of Kuwait through a claim that the country was a historical part of Iraq under the Ottoman Empire until Britain split the area into two separate countries.603 Such justifications, at a minimum, exhibit a limited internalisation of the norm proscribing

601 There is indeed evidence of a decline in the use of force over territorial disputes. See Gary Goertz and Paul F. Diehl, Territorial Changes and International Conflict, (London: Routledge, 1992). p 52. 602 Hensel, Allison and Khanani discuss this norm. Paul R. Hensel, Michael E. Allison and Ahmed Khanani, 'Territorial Integrity Treaties, Uti Possidetis, and Armed Conflict over Territory', Paper presented at the 2006 Shambaugh Conference “Building Synergies: Institutions and Cooperation in World Politics,” University of Iowa, 13 October 2006. See also Markus Kornprobst, 'Argumentation and Compromise: Ireland's Selection of the Territorial Status Quo Norm', International Organization, 61:1 (2007), pp 69-98. 603 Majid Khadduri and Admund Ghareeb, War in the Gulf 1990-91: The Iraq-Kuwait Conflict and its Implications, (Oxford: Oxford University Press, 1997), p 4.

208 conquest. They suggest a recognition that such acts would be illegitimate and they represent weak compliance in so far as states do not attempt to justify their territorial aggrandisement in proscribed terms. To dispute ownership of a particular territory is, in effect, to say that the territory that is being claimed is legitimately a part of the claimant state. As a consequence, no breach of territorial integrity would result from the claim because the state is only claiming what it perceives to be its own territory.

While the forceful pursuit of disputed territory, therefore, would not amount to a breach of the norm of territorial integrity, it would undoubtedly breach the wider contemporary standard that views the use of force and war – especially in pursuit of territorial aims – as deviant. That said, even the forceful pursuit of such territory would not necessarily be as problematic as that involved in an act of conquest. To the degree that a discourse of ownership is present, it should serve to limit the extent of conflict. For example, if a state justified the forceful acquisition of territory to recover a disputed border area, it could hardly then seize the rest of a state's territory using the same justification. Conquest, on the other hand, is in principle unrestricted.

On the same basis, the peaceful pursuit of disputed territory should be viewed as normal and, far from being a breach of territorial integrity, it assumes the inviolability of the undisputed territory beyond the explicit claim. Both the forceful and peaceful pursuit of disputed territory should, then, be understood as activities that reinforce, rather than undermine, the territorial integrity norm, notwithstanding the problems associated with the use of force.

That said, if states could simply fabricate a territorial dispute, the concept of territorial integrity could have no effect on their behaviour. Discourses of ownership are not purely subjective, however.

International legal principles and inter-subjective standards of appropriate behaviour serve as important media for the assessment of those claims that are made. International law tends to favour the stability and so long-standing possession of a given territory tends to take priority over historical disputes. It is for this reason that land territory which was historically allocated by force cannot legally be questioned today even though conquest and annexation have become unlawful. The Iraqi justification for the annexation of Kuwait was partly rejected on the basis of its spurious historical territorial claim and its action was, therefore, firmly

209 understood to be breach of the territorial integrity norm.604 Moreover, though disputed territory does exist on land, boundaries have become more certain there as the territorial integrity norm has developed. However, this situation can be contrasted with maritime space in which there is much greater room for legitimate territorial disputes.

Boundaries and Disputes on Land and At Sea

Boundaries on land as we know them today evolved slowly. Medieval rule was not based on clearly demarcated territories. As Lowe explains, there were “kingdoms or other polities: but they were defined, as it were, from the centre outwards.”605 A major city would be surrounded by an area of territory regarded as that belonging to the king. These kings, therefore, mostly had spheres of influence rather than clearly demarcated areas of jurisdiction. As late as the eighteenth century, buffer zones were created by agreements such as the

Treaty of Constantinople between Russia and the Ottoman Empire. But boundaries on land have had a long time to develop. Latterly, then, they have become more certain: they are set based on clear coordinates marked on maps and often made physically apparent by markers on the landscape. Though some inevitably remain, many boundary disputes on land have been resolved, partly due to the passage of time. 606 Indeed, the growing certainty of boundaries has been associated with the development of a strong norm of territorial integrity and might sensibly be understood as a necessary condition for the existence and effect of the norm.

The situation at sea is considerably different. An overwhelming majority of coastal states have declared maritime zones in accordance with the Law of the Sea Convention, though this legislation is often fairly simple and may or may not contemplate the need to delimit boundaries with neighbours, whether their

604 United Nations Security Council Resolution 660, 2 August 1990 S/RES/660 (1990), available at: {http://daccess- dds-ny.un.org/doc/RESOLUTION/GEN/NR0/575/10/IMG/NR057510.pdf?OpenElement} accessed on 12 July 2013, United Nations Security Council Resolution 661, 6 August 1990 S/RES/661 (1990), available at: {http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/575/10/IMG/NR057510.pdf?OpenElement} accessed on 12 July 2013 and United Nations Security Council Resolution 665, 25 August 1990 S/RES/665 (1990), available at: {http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/575/15/IMG/NR057515.pdf?OpenElement} accessed on 12 July 2013. 605 Vaughan Lowe, International Law, (Oxford: Oxford University Press, 2007). p 136. 606 On the decline of territorial disputes, see Karen A. Rasler and William R. Thompson, 'Contested Territory, Strategic Rivalries, and Conflict Escalation'. International Studies Quarterly, 50 (2006), pp 145-167, p 150.

210 coastlines are opposite or adjacent to the state in question.607 Indeed, where states with territories opposite one another which are less than 400 nautical miles apart, (or 24 nautical miles for the territorial sea), share a unified continental shelf, or are adjacent to one another they will have maritime neighbours. However, partly because of the relative novelty of the property rights order in the oceans, many maritime boundaries remain to be settled.608 It may also be the case that states have not delimited their boundaries because there has arisen no pressing need for them to do so. After all, free fishing prevailed in these areas for a long time prior to the development of maritime zones in the twentieth century and these patterns may continue – at least amongst neighbours and especially those lacking the capacity to effectively police their boundaries anyway.

Oil and gas development, on the other hand, often provides an impetus for the delimitation of more certain boundaries, but hydrocarbon resources are not always present in a country's continental shelf and may be the cause of boundary disputes rather than boundary diplomacy.

Indeed, the politics surrounding unresolved boundaries that exist in the world may be characterised by various degrees of tension. It is possible to categorise maritime boundaries based on the level of political discord associated with them and the associated degree of management of the frontier zone. Some maritime boundaries remain undelimited without causing any perceptible political or administrative difficulties and no clear claims have been made by the neighbouring states – these boundaries can hardly be described as being currently disputed. For example, Indonesia extended its EEZ to the full 200 nautical miles it was entitled, even though this area overlapped the EEZ of Palau. Palau presently engages in enforcement activities in the area of overlap, however, and this has not been of concern to Indonesia.609 Yet more unresolved boundaries may have featured explicit claims on the location of the line by the relevant states. In some cases, there may be simple agreements to disagree on the location of the line610 whereas others may be managed to varying

607 Some states do actively state that the limits of their jurisdiction might terminate at an equidistance or median line for those neighbouring adjacent and opposite states respectively. Similarly, when two or more states have concluded maritime boundaries in the vicinity of the as yet undelimited maritime jurisdiction of another state, it has been common practice to terminate the agreed boundary short of the equidistance line with the hypothetical jurisdiction of that other state. 608 One study found that only just over a third of maritime boundaries had been delimited: Prescott and Schofield Maritime Political Boundaries, p 245. 609 Prescott and Schofield Maritime Political Boundaries, p 417. 610 This characterisation best explains the situation relating to many of the world's maritime disputes; for example, Canada and the United States in the Beaufort Sea or Puget Sound. See for example David H. Gray, 'Canada's

211 degrees even in the absence of a final boundary delimitation.611 A subset of boundaries are actively disputed and the disagreement on the location of the line has led to political tension or even conflict.

However, though many boundaries remain to be delimited, it is clearly not the case that offshore space is an area without rules. In the last two chapters, I outlined the set of norms that underpin the contemporary marine property rights order: every coastal state was understood to be entitled to the areas off its own coast in line with basic notions of fairness informed by a spatial conception of justice. Legal provisions on the setting of maritime boundaries have been included in all the major Law of the Sea

Conventions of the twentieth century and reflected – albeit ambiguously – this underlying consensus and the state practice associated with it on how marine space should be apportioned. Though many areas of uncertainty relevant to the drawing of maritime boundaries remain and have not been subject to much judicial determination, elements of these underlying norms can be understood as having been made somewhat more concrete by the adjudication of maritime boundary disputes by courts and tribunals. In short, over the course of the past several decades, a corpus of international law relevant to maritime boundaries has developed through the evolution and interplay of customary rules, treaties and the case law of international courts and tribunals.

However, while the law may provide a vocabulary for the making of maritime claims and provide some limits to what may be considered a legally defensible claim, it rarely determines the exact location of a line. For law regularly contains room for debate and attendant uncertainty. This uncertainty may arise from the difficulties of applying the facts and result of one case to a different situation, or ambiguous wording in treaties. But these disputed provisions and decisions provide limits to the claims states can make as legal uncertainty is not synonymous with a legal vacuum. It is this uncertainty in the law that can be the basis for a legitimate and limited dispute over maritime space. A state that accompanies even a forceful pursuit of a

Unresolved Maritime Boundaries'. IBRU Boundary and Security Bulletin Autumn 1997, Ted L. McDorman, Salt Water Neighbors: International Ocean Law Relations Between the United States and Canada. (Oxford: Oxford University Press, 2009). 611 For example, Russia and Norway engaged in extensive joint management of fisheries resources in a disputed area of the Barents Sea until they finally delimited a boundary in 2010. See Tore Henriksen and Geir Ulfstein, 'Maritime Delimitation in the Arctic: The Barents Sea Treaty', Ocean Development and International Law, 42:1-2 (2011), pp 1- 21.

212 claim in these circumstances can hardly be considered to breach the maritime “territorial integrity” of a neighbour. In short, as on land, a legitimate discourse of ownership accompanying a maritime claim exhibits a lack of will to reopen the possibility of the acquisition of territory through conquest. Maritime boundary and other disputes relating to the allocation of marine space that are argued in legal and normative terms, thus, provide evidence for the existence of a norm similar to territorial integrity at sea.

Therefore, before examining any cases of maritime disputes, it is necessary to outline the legal provisions relevant to the allocation of maritime jurisdiction between neighbours. The first element of this analysis involves an assessment of the law relating to the delimitation of maritime boundaries between states with coastlines opposite or adjacent to one another. These rules are those most frequently at issues in maritime disputes. Three further important areas of law are the provisions on the entitlement of islands to maritime zones, the determination of the limits of the continental shelf and the doctrines of historic waters and historic rights. All of these rules may affect the location of a particular boundary line between neighbours and they all feature either in the case study on the Arctic Ocean or that on the South China Sea below.

The Evolution of Maritime Boundary Law

In many cases, maritime disputes relate to contested land space as it is title to territory that generates maritime entitlements. Disputes over the ownership of islands, in particular, have become quite important since the negotiation of UNCLOS, as islands are often entitled to a full suite of maritime zones, meaning that a country possessing them may be able to augment its offshore jurisdiction considerably.612 Other disputes arise because of disputed land boundaries and affect offshore jurisdiction because maritime boundaries between adjacent states normally begin at the coast where the land boundary terminates. The Law of the Sea has nothing to say about these disputes as the resolution of the maritime dispute is dependent on the prior resolution of the territorial dispute. The Law of the Sea Treaty does contain provisions on what kinds of

612 Charney says “most disputes over these features are actuated by questions regarding their legal effect on zones of national maritime jurisdiction and the delimitation of international maritime boundaries.” Jonathan I. Charney, 'Rocks that Cannot Sustain Human Habitation', The American Journal of International Law, 93:4 (1999): pp 863- 878, p 863

213 islands are entitled to generate maritime zones, as will be discussed later, and some disputes are purely related to maritime space without any element of contestation over land territory being involved. It is these kinds of disputes that are of interest in this study and for which the law of maritime boundary delimitation provides something of a vocabulary for understanding.

When the continental shelf regime was codified in the 1958 Convention on the Continental Shelf, the need for written provisions on maritime boundary delimitation criteria became pressing for the first time.

The compromise between the supporters of equidistance and equity led to the formula in Article 6, which stated: “In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line.” The International Court of Justice had its first opportunity to rule on a maritime boundary dispute in 1969, when Germany and the Netherlands, joined by Denmark, sought to gain its advice on the delimitation of continental shelf boundaries in the North Sea. In the case, the court dismissed the argument that it was required to use the equidistance line either on its own or as a first step in delimiting a boundary. The court said that customary international law required delimitation to be

effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other.613

The resistance towards considering equidistance as anything other than one of a number of possible delimitation methods continued in the jurisprudence of the ICJ and arbitral tribunals until comparatively recently.614

This position was reinforced by the even vaguer wording of the UN Convention on the Law of the

Sea. The compromise between the supporters of equidistance and those of equity was manifested in Articles 613 North Sea Continental Shelf Case, para 101. 614 In the Gulf of Maine case, the ICJ said that “this concept [equidistance], as manifested in decided cases, has not thereby become a rule of general international law, a norm logically flowing from a legally binding principle of customary international law, neither has it been adopted into customary law simply as a method to be given priority or preference”. Gulf of Maine Case (Canada v. United States), [1984] I.C.J. Reports 246, para 107. In the Libya- Malta case, the court held that equidistance was “not the only method applicable” and it did “not even have the benefit of a presumption in its favor”. Case Concerning the Continental Shelf (Libya/Malta), [1985] I.C.J. Reports 13 at 50, para 63. Finally, the Court said in the Nicaragua v Honduras that equidistance “does not automatically have priority over other methods of delimitation...”. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 659, p. 742, para. 272.

214 74 and 83, which stated that delimitation of the exclusive economic zone and continental shelf respectively were to “be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” The reference to international law in this provision was supposed to limit the claims that states were able to make. The continual refusal of the judiciary to adopt a more concrete rule of delimitation, however, was criticised in some quarters for leading to vagueness.615

Some lawyers have indeed noted the lack of a clear norm evident in state practice for the delimitation of maritime boundaries. In one such study, which examined 134 instances of maritime boundary delimitations across the world, it was noted that,

[N]o normative principle of international law has developed that would mandate the specific location of any maritime boundary line. The state practice varies substantially. Due to the unlimited geographic and other circumstances that influence the settlements, no binding rule that would be sufficiently determinative to enable one to predict the location of a maritime boundary with any degree of precision is likely to evolve in the near future.616

However, though the refusal of the court to adopt a specific rule or formula for delimitation, combined with variable state practice, might seem open to abuse, it cannot be judged that the law of maritime boundary delimitation degenerated into enabling states to make any claims that suited their interests. In reality, equidistance lines have been used in many cases of negotiated boundaries – some 77 per cent of the total in the study of 134 boundaries mentioned above. Indeed, many instances of coastal geography would not seem to merit a departure from this practice and the requirement for equity has been understood in relatively limited terms in the case law, which one commentator has said amounts to “a common law in the classic sense” despite the lack of a principle of stare decisis in international adjudication.617

615 Gilbert Guillaume, 'Speech to the Sixth Committee of the General Assembly of the United Nations', October 31, 2001, available at {www.icj-cij.org/court/index.php?pr=81&pt=3&p1=1&p2=3&p3=1&PHPSESSID=} accessed 20 February 2012. 616 Jonathan I. Charney, 'Introduction', in J. Charney and L. Alexander (eds.), International Maritime Boundaries, vol. i, (Martinus Nijhoff Publishers, 1993), p xlii. 617 Jonathan I. Charney, 'Progress in International Maritime Boundary Delimitation Law' American Journal of International Law 88:2 (1994), pp 227-256, p 84. Masahiro Miyoshi also states that the case law has become the most important source of legal authority because the reasoning is clearly evident, unlike in cases of negotiated boundary delimitations between states. At any rate, state practice and judicial decisions seem to have converged to a large degree. Masahiro Miyoshi, 'Some Thoughts on Maritime Boundary Delimitation', in Seoung-Yong Hong and

215 To be sure, early case law may have given the impression of vagueness, but a growing consistency in the string of decisions over the past few decades has been evident.618 Relatively recently, the International

Court of Justice articulated a three step formula which it deemed appropriate for the process of deciding on a delimitation for most maritime boundaries. The judges in the Black Sea Case said “the first stage of the

Court’s approach is to establish the provisional equidistance line.” They continued: “the Court will at the next, second stage consider whether there are factors calling for the adjustment or shifting of the provisional equidistance line.” The third and final step is to check that there is no marked disproportionality in maritime areas, as compared to the ratio of the relative coastal lengths of the parties. 619 Ted McDorman comments that the use of a provisional equidistance line, that is then adjusted if circumstances merit, has been used in cases regardless of whether the parties have signed and ratified the Law of the Sea Convention or its forebears, suggesting the obligation is a customary one, as well as a requirement of the treaties.620

Consequently, international adjudications have evolved to the point that it is seemingly no longer the case that there is no presumption in favour of a particular delimitation method.621 Equidistance lines are now clearly the default unless there are reasons to adjust them in order to achieve an equitable result or, in particularly unique situations, a reason not to use any form of equidistance line at all. 622 How much a line is adjusted is up to the discretion of a court, although consistency with previous cases would seem to be an important criterion and adjustment that is seen as excessive has been criticised.623 One thing is clear, a burden

Jon M. Van Dyke, Maritime Boundary Disputes, Settlement Processes and the Law of the Sea, (Leiden/Boston: Martinus Nijhoff Publishers, 2009), p 108 and 118 618 See generally Jiuyong Shi, 'Maritime Delimitation in the Jurisprudence of the International Court of Justice', Chinese Journal of International Law, 9:2 (2010), pp 271-291. 619 Case Concerning Maritime Delimitation in the Black Sea (Romania v Ukraine), [2009] I.C.J. Reports 44, paras 118- 122. 620 McDorman, Salt Water Neighbors, p 157. 621 In fact, the tribunal in the Guyana and Suriname Arbitration explicitly said that recent cases evinced precisely that there was now a presumption in favour of equidistance. Arbitral Tribunal Constituted pursuant to Article 287, and in accordance with Annex VII of the United Nations Convention on the Law of the Sea in the Matter of an Arbitration between Guyana and Suriname (Guyana v. Suriname), Award of 17 September 2007, para 338, available at {http://www.pca-cpa.org/showpage.asp?pag_id=1147} accessed on 12 July 2013. 622 Not every case has used a provisional equidistance line. The North Sea Continental Shelf Case, the Gulf of Maine Case and the Nicaragua-Honduras Case as well as the Guyana and Suriname Arbitration all used other methods. 623 McDorman, Salt Water Neighbors, p 162. See Judge Gao's dissenting opinion in the Bay of Bengal Case. Judge Gao criticised the desire of ITLOS to stay within the mainstream of the case law by focusing on equidistance, favouring treating each case separately. Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Order of 28 January 2010, ITLOS Reports 2008-2010, p. 24, para 20.

216 now seems to be placed on a state that claims a maritime boundary that is not based on equidistance to justify why the situation in the maritime area merits it. Indeed, even in these cases, potential state claims are limited by how courts and other states have understood the concept of equity.

As the judgment in the North Sea Continental Shelf Cases made clear, the concept of equity is informed by a spatial conception of fairness similar to the one that underlined the negotiations at the law of the sea conferences. Although the court had said there were no legal limits to the circumstances that may be relevant to the equity of a line,624 later courts have confined their understanding of these relevant factors. The

Arbitral Tribunal summed up this position in the English Channel Continental Shelf Arbitration, stating that

“it is the geographical circumstances which primarily determine the appropriateness of the equidistance or any other method of delimitation in any given case.”625 More recently, the ICJ stated that it was the job of the court to use methods that were “geometrically objective and also appropriate for the geography of the area in which the delimitation is to take place”.626 All these cases agree that the geography to which they refer relates to the configuration of the coastlines of the parties to a delimitation.627 These characteristics are to the exclusion of other conceivable factors that might affect the equity of a delimitation such as the size of the territory of the state,628 the level of development of its economy,629 or other socio-economic considerations.630

Geographical features that have been considered sufficient for the adjustment of a provisional equidistance line have included rocks and islands. This was the case in the English Channel Arbitration where the tribunal decided to give the Channel Islands no effect in the delimitation of a boundary between the UK and France in the English Channel, enclaving them in a 12 nautical mile territorial sea, and the Isles

624 Bay of Bengal Case, para 93. 625 Case concerning the delimitation of the continental shelf between the United Kingdom of Great Britain and Northern Ireland and the French Republic, International Law Reports, Vol. 54, p. 66, para. 96. 626 Black Sea Case, para. 116. 627 The Court in the Libya/Malta Case said: “The juridical link between the State's territorial sovereignty and its rights to certain adjacent maritime expanses is established by means of its coasts... The legal basis of that which is to be delimited, and of entitlement to it, cannot be other than pertinent to that delimitation... The criterion (of delimitation) is linked with the law relating to a State's title...” paras 27 and 61. 628 Libya/Malta Case, para 61. 629 Libya/Malta Case, para 61. 630 Gulf of Maine Case, para 237. Although the court did leave open the possibility that a fundamental impact on the livelihoods of fishermen would have made a delimitation inequitable. In other words, socio-economic conditions are not wholly irrelevant, but the test represents a high hurdle.

217 of Scilly were only given half effect.631 That said, islands vary enormously in size, population and location.

As the next section will explain, they also vary in their entitlements to maritime space. State practice has, consequently, been somewhat inconsistent with regard to the effect islands have on boundary delimitation, with some small, uninhabited features being given full effect in the calculation of an equidistance line.632

Bowett comments that, in the case of islands close to a coast, but under a different sovereignty, it is “virtually impossible to identify a norm, a rule of general application.”633 Schofield comments that this could either be seen as unhelpful or illustrative of the flexibility of the method and that islands generally have not been given full effect.634 However, Bowett also notes that “a variation caused by the island which appears inequitable, given the location and size of the island, will be regarded as a 'distortion'” in cases where an island is proximate to a median line controlled by two mainlands.635 He also suggests that islands close to the mainland of the state to which they belong are often given full effect in the drawing of an equidistance line by being considered indistinguishable from the mainland coast or when they are balanced by similar islands close to the coast of the other party.636 Either way, what this varying practice does introduce is some uncertainty into the rules of maritime boundary delimitation in cases where islands are not simply close to the coast of the state under whose sovereignty they reside.

The configuration and comparative lengths of coastlines have also had an effect on maritime boundary delimitations. In the North Sea Continental Shelf Case, the ICJ decided that the concave nature of the German coast meant the equidistance lines between it and Denmark and the Netherlands cut off German maritime entitlements. Consequently, the court suggested a different mechanism altogether, known as the

631 This practice was followed by the ICJ in subsequent decisions: Tunisia-Libya Case, Gulf of Maine Case and Libya/Malta Case. See Jon M. Van Dyke, Joseph R. Morgan and Jonathan Gurish,'The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate an EEZ?' San Diego Law Review, 25:3 (1988): pp 425-494, pp 447-448. Charney says that even rocks, which would otherwise be unable to generate an EEZ and continental shelf could, in principle, influence a delimitation line, but that, in reality, they would do so to only a minor extent, if at all. Charney, 'Rocks that Cannot Sustain Human Habitation,' p 866. 632 For example, Venezuela's Aves Island. 633 Derek Bowett, 'Islands, Rocks, Reefs and Low-tide Elevations' in Charney, Jonathan and Lewis M. Alexander (eds) International Maritime Boundaries, (Leiden: Martinus Nijhoff, 2005), p 147. 634 Clive Scofield, 'The Trouble with Islands: The Definition and Role of Islands and Rocks in Maritime Boundary Delimitation', in Seoung-Yong Hong and Jon M. Van Dyke, Maritime Boundary Disputes, Settlement Processes and the Law of the Sea, (Leiden/Boston: Martinus Nijhoff Publishers, 2009), pp 35-36. 635 Bowett, 'Islands, Rocks, Reefs', p 144. 636 Bowett, 'Islands, Rocks, Reefs', p 139.

218 angle bisector method, in its advisory opinion to the parties. It involved the construction of a straight line across the concavity of the German coast and treating it as if it were, instead, the German coast. In the more recent Bay of Bengal Case, the International Tribunal for the Law of the Sea used an adjusted equidistance line in similar circumstances. A slightly different situation was apparent in the case between Libya and

Malta, where the ICJ drew a boundary that was substantially closer to Malta than Libya because of the shorter coastline of the former. These precedents are influential and limit the claims that may be made, but they also create space for disputes to emerge where the facts of similar situations are not identical.

Other factors that have been deemed relevant in some cases of maritime delimitation are prior agreements and the conduct of the parties as well as the presence of offshore resources in the delimitation area.637 Security considerations and navigability have also influenced delimitations, particularly in relationship to the territorial sea. Thus, the law has latterly achieved an impressive degree of consistency and clarity, though not determinacy, for maritime delimitations. However, all these cases have involved delimitations occurring within 200 nautical miles of shore: the legal principles are somewhat less clear with regard to the delimitation of the extended continental shelf.

The North Sea Continental Shelf Cases were also important for the ICJ's concept of natural prolongation. The court stated that continental shelves “are a prolongation or continuation of [the state's] territory, an extension of it under the sea.”638 This notion that the continental shelf was the natural prolongation of a state’s land territory also found its way into UNCLOS, Article 76 of which states: “The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin...” This natural prolongation language led several states to advance claims to maritime jurisdiction based on the geological and geomorphological characteristics of the seabed.

However, the Libya-Malta Case of 1982 limited the validity of this practice, which had already fallen out of favour in a number of decisions beforehand.639 In its decision, the ICJ stated that the geological and

637 See for example the Maritime Delimitation in the Area Between Greenland and Jan Mayen, [1993] I.C.J. Reports 38. 638 North Sea Continental Shelf, para 43. 639 See Miyoshi, 'Some Thoughts', pp 110-111.

219 geomorphological characteristics of the seabed were immaterial to the delimitation of maritime boundaries relating to overlapping exclusive economic zones.640 Because the EEZ was a regime based purely on distance, rather than the physical characteristics of the continental shelf, it made no sense to give these any effect in the delimitation of overlapping EEZs. However, this left the law relating to delimitation of continental shelves beyond 200 nautical miles unclear. The ICJ stated that privileging the status of distance in the delimitation of overlapping EEZ’s was “not to suggest that the idea of natural prolongation is now superseded by that of distance.”641 However, possibly because of a lack of data relating to it, state practice has apparently downplayed the relevance of the physical characteristics of the seabed in these delimitations.

One study found that, of seven agreements on maritime boundaries relating to the extended continental shelf, none changed the delimitation method used beyond 200 nautical miles from that used within that distance.642 In other words, the geomorphological characteristics of the seabed were used only to establish the end point of the boundary, not its course. Though the Australian agreement with New Zealand on the maritime boundary between those two countries may have taken these characteristics into account, 643 the emerging practice seems to point towards the irrelevance of geological and geomorphological factors in favour of delimitation methods based on the geography of the coasts of the parties. This position was also that which the International Tribunal for the Law of the Sea adopted in the most recent case of adjudicated maritime boundary delimitation – which related to the Bay of Bengal between Myanmar and Bangladesh.644

Myanmar sits on a different tectonic plate to most of the Bay of Bengal, as the boundary between the

Burmese and Indian plates lies within 200 nautical miles of the Myanmar coast. Bangladesh had argued that this tectonic plate boundary, combined with the fact that the sediments in the bay originated from rivers flowing through Bangladeshi territory meant that Myanmar should not be entitled to an extended continental

640 Libya/Malta Case, para. 34. Geology and geomorphology have likewise played no role in delimitations within 200 nautical miles between adjoining coastal states. See, e.g.: the Bay of Bengal Case, para. 322. (The tribunal said: “The location and direction of the single maritime boundary applicable both to the seabed and subsoil and to the superjacent waters within the 200 nm limit are to be determined on the basis of geography of the coasts of the Parties in relation to each other and not on the geology or geomorphology of the seabed of the delimitation area.”) 641 Libya/Malta Case para 34. 642 David Colson, 'The Delimitation of the Outer Continental Shelf Between Neighboring States', The American Journal of International Law, 97:1 (2003), pp 91-107. 643 See Clive Schofield, 'Australia's Final Frontiers? Developments in the Delimitation of Australia's International Maritime Boundaries', Maritime Studies, 158:1 (2008) pp 2-21, p 6. 644 Bay of Bengal Case.

220 shelf at all. The tribunal decided that Myanmar was entitled to a continental shelf because the geology of the seabed is not relevant to establishing a continental shelf entitlement. As long as the seabed off the coast of a state could be shown to reach the limits provided in Article 76 of UNCLOS, that state was entitled to an extended continental shelf. The tribunal, therefore, ruled that it had to delimit a boundary relating to a continental shelf that was shared between the two parties to the case. It further decided that the geological factors cited by Bangladesh were irrelevant as special circumstances in the delimitation and that the method it used within 200 nautical miles (an equidistance line, adjusted because of the characteristics of the coast) would be used to delimit the boundary beyond that distance. Consequently, it is perhaps becoming clearer that maritime claims based on the geological characteristics of the seabed are no longer valid, both in cases of delimitation and entitlement to an extended continental shelf. That said, the ITLOS decision has not been without criticism, even from within the judicial panel itself and state practice is limited on the issue.

Moreover, the tribunal in the Bay of Bengal Case had to deal with a relatively uncomplicated continental margin, which may not be the norm in some parts of the world ocean.

In sum, a relatively well-developed body of law has emerged based on state practice and treaties that states may draw on to legitimise their own maritime boundary claims. Although they have at times appeared vague, the decisions of international courts and tribunals have developed a formula for the delimitation of maritime boundaries that includes the use of an equidistance line in most cases and then adjusting it if relevant circumstances so require. The guiding principle for judges has been to arrive at an equitable delimitation, which has been understood to require a fair distribution of maritime space between the parties to a dispute. The factors that have been used to adjust equidistance lines or which have otherwise affected the assessments of courts and tribunals have been overwhelmingly geographical in nature and focused almost exclusively on coastal geography. These decisions have created a legal vocabulary that is often drawn on by states in the making of their boundary claims but, as with any body of law, it is not free from uncertainty.

This situation also prevails with regard to the limits of the continental shelf specified in UNCLOS, which contains considerable complexity.

221 Seafloor Highs and the Limits of the Continental Shelf

The model of continental shelf rights assumed in many analyses is based on a classic continental margin such as that in the Atlantic Ocean. In reality, the continental margin of some states is much more complex. The world's oceans contain many elevated areas formed by various processes, composed of various materials and which have varying relationships with the continental shelf on the one hand and the deep seabed on the other.

The issue arose in the third conference's discussions as to whether these features can be brought under national control, or whether they are a part of the international area. Some states wished to limit claims to these features while others wished to expand their rights over them as far as they could. A notable concern was that islands sitting on top of mid-ocean ridges could potentially extend their jurisdictions very far, 645 while other states wanted to ensure that more discreet seafloor highs attached to their continental shelves came fully under their control.646

Consequently, UNCLOS includes provisions on a number of different structures in the article on continental shelf rights. In particular, article 76 states that oceanic ridges may not be reduced to national control, that jurisdiction may be exercised over submarine ridges, but only up to a distance of 350 nautical miles from a state's baselines, if they extend that far, and submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs are, to all intents and purposes, to be treated as normal parts of the continental margin. Consequently, the 2,500 metre isobath plus 100 nautical miles limit is available for use relating to these features, unlike submarine ridges.

The difficulty is that the Convention does not define what each of these features is. 647 Nevertheless, the Commission on the Limits of the Continental Shelf, which plays an essential role in legitimising extended continental shelf claims, has provided some guidance on how it will interpret this portion of Article

645 Gorski suggests that the provision on submarine ridges was designed to prevent this scenario. Tomas Gorski, 'A Note on Submarine Ridges and Elevations with Special Reference to the Russian Federation and the Arctic Ridges', Ocean Development and International Law, 40:1 (2009), pp 51-60. 646 In 1980, Elliot Richardson told the Conference on the Law of the Sea that the Chukchi Plateau was the United States’ undersea territory. See Oceanlaw.org, 'Information: The US Extended Shelf North of Alaska', available at: {http://www.oceanlaw.org/index.php?module=News&func=display&sid=32}, accessed on 12 July 2013. 647 Macnab highlights a number of instances in which the application of Article 76 may be controversial, including the Reykjanes Ridge, Iceland, and the South Greenland Ridge. Ron Macnab, 'Submarine Elevations and Ridges: Wild Card in the Poker Game of UNCLOS Article 76', Ocean Development and International Law, 39:2 (2008), pp 223- 234.

222 76.648 Given that the Convention does not specify that entitlement to an extended continental shelf is premised on a natural prolongation of undersea land being composed of a particular kind of crust, the

Commission did not rule out oceanic ridges being considered natural components of the continental margin of some states. This seemed to reinforce the possibility for islands sitting on top of mid-ocean ridges claiming at least part of those structures. It further stated that features generated by specific processes that are naturally associated with the two types of geological settings649 in the world's oceans should be considered natural components of the continental margin. However, the Commission was careful to state that it would consider the status of different submarine highs on a case-by-case basis.

Despite this seeming uncertainty, a number of academics have sought to clarify the treaty provisions on ridges and other submarine elevations.650 The consensus that has emerged seems to be that oceanic ridges exist beyond the foot of the slope regardless of crust type.651 Submarine ridges are incorporated geomorphologically into the continental shelf, but discontinuous along at least a part of their extent with the geological composition of the continental margin. Incorporation into the continental margin requires that a continuous foot of the slope envelope can be drawn around the feature and that any saddle area between the continental shelf and the elevation is distinguishable from the surrounding deep ocean floor.652 Finally, submarine elevations are features that are incorporated into the continental margin and which are continuous in terms of crust-type with it. According to Symonds and Brekke, “the CLCS makes an assessment as to

648 CLCS, 'Scientific and Technical Guidelines'. 649 Convergent settings are those where tectonic plates are moving towards one another and divergent settings are where they are spreading apart. 650 See, for example, Philip A. Symonds and Harald Brekke, 'Submarine Ridges and Elevations of Article 76 in Light of Published Summaries of Recommendations of the Commission on the Limits of the Continental Shelf', Ocean Development and International Law, 42 (2011), pp 292; Weiguo Wang, 'Geological structures of ridges with relation to the definition of three types of seafloor highs stipulated in Article 76', Acta Oceanol. Sin. 30:5 (2011) pp 125. 651 Harald Brekke and Philip A. Symonds, 'The Ridge Provisions of Article 76 of the UN Convention on the Law of the Sea', in Myron H. Nordquist, John Norton Moore & Tomas H. Heidar (eds.), Legal and Scientific Aspects of Continental Shelf Limits, (Dordrecht: Martinus Nijhoff, 2004), p 185. 652 Symonds and Brekke note that Norway tried to use foot of the slope points on the Mohns-Knipovich Ridge system, claiming that it was a submarine ridge by arguing that it was morphologically connected to the continental margin of Norway by the Bjørnøya Fan. However, the CLCS considered that the seafloor in the area was too flat, and concluded that “the Mohns-Knipovich Ridge system, including its central valley, is considered to be part of the deep ocean floor and/or rise provinces on morphological and geological grounds.” Similarly, the CLCS concluded that the UK could not use foot of the slope points on the mid-Atlantic Ridge because “Ascension Island is distinct from the surrounding ocean floor, morphologically, geologically, geophysically and geochemically.” Symonds and Brekke, 'Submarine Ridges', p 292.

223 what extent such an elevation is geologically associated or continuous with the landmass of the coastal state, and to what extent it is geologically different to the surrounding deep ocean floor.” 653 At the same time, they point out that some countries disagree with this approach.654 Australia was particularly keen to prevent the development of a precedent by the CLCS, preferring that it continue to decide the status of ridges on a case- by-case basis. Yet as Weber rightly concludes, ultimately the practice of the CLCS will combine with state practice to determine the outcome of this debate.655

The limits of the continental shelf are predominantly an issue that does not involve other states directly, and so generally will not be a feature of disputes similar to those over maritime boundaries. That said, states may arguably protest the final limits declared by a coastal state and thereby potentially undermine their validity in international law. However, although some states have been keen to protest the claimed limits that others have brought before the CLCS, they do not have standing to prevent the Commission from considering the claims unless they have rights in the area themselves.

That said, as in the case of the Bay of Bengal delimitation between Myanmar and Bangladesh, the issue of continental shelf entitlement can become bound up with that of delimitation. Given that there is no case law on the issue of the influence of ridges on maritime delimitation, and given how different and uncertain the legal rules may be in relationship to the ridge provisions of UNCLOS, they could provide room for the development of a dispute as we will see in the next chapter. The Commission will undoubtedly play an important part in legitimising the claims of countries relating to ridges, although there is no comparable body that routinely provides recommendations on other contentious issues, such as which maritime zones islands may generate.

653 See: Symonds and Brekke, 'Submarine Ridges', p 299. See also Bjørn Kunoy, 'The Terms of Reference of the Commission on the Limits of the Continental Shelf: A Creeping Legal Mandate', Leiden Journal of International Law, 25:1 (2012), pp109-130, pp 120-121. 654 Australia deemed the geological test to be relevant only in the case of ridges, with all other features being considered natural components of the continental margin on the basis of morphology alone. This approach seems problematic, given the non-exhaustive nature of the list and the definition of a spur. 655 Mel Weber, 'Defining the Outer Limits of the Continental Shelf across the Arctic Basin: The Russian Submission, States’ Rights, Boundary Delimitation and Arctic Regional Cooperation. International Journal of Marine and Coastal Law', 24:4 (2009), pp 653-681, p 669.

224 The Regime of Islands

Though the law of the sea does not include provisions that would help states to decide the ownership of territory or islands, it does contain standards on the circumstances under which islands and insular features are entitled to maritime zones. These provisions are codified in UNCLOS and have yet to be the subject of any judicial determinations. The rules in UNCLOS reflected the difficult negotiations and lack of consensus at the conference over whether islands should be entitled to maritime zones and what effect they should have on maritime boundary delimitation. The articles on islands in the convention have, however, been the subject of a lively academic debate, which illustrates the space in the provisions for legitimate dispute.

Understanding these provisions is essential to appreciating the issues addressed in chapter eight on the South

China Sea.

The Convention distinguishes between three types of features: low-tide elevations, islands, and

“rocks which cannot sustain human habitation or economic life of their own.” As discussed in chapter two, states may use islands as a justification for drawing straight baselines if they fringe their coasts and low tide elevations may be used as base points in this endeavour if they have lighthouses constructed on them, or if their use for this purpose has received general international approval. Normal territorial sea baselines may also be drawn so as to include low-tide elevations if they are twelve nautical miles or less from the coast or another island. If such features are greater than twelve nautical miles from the coast of the mainland or an island, they are not able to generate any maritime zones at all.656

Islands, on the other hand, can generate a full suite of maritime zones from a territorial sea to an extended continental shelf. If it had no neighbours to constrain it, such an island could generate at least

125,664 square nautical miles of jurisdiction.657 An island is defined in the Law of the Sea Convention as “a naturally formed area of land, surrounded by water, which is above water at high tide.” 658 Though there is some controversy over the methodology used to calculate high tides,659 the interpretation of this section is

656 UNCLOS, Article 13(2). 657 Schofield, 'The Trouble With Islands', p 21. 658 UNCLOS, Article 121(1). 659 Schofield, 'The Trouble With Islands', pp 24-25. cf. Barbara Kwiatkowska and A.H.A. Soons, 'Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of their Own', Netherlands Yearbook of International Law, 21 (1990), pp139-181, pp 171-173, though they suggest a test based on whether the

225 relatively uncontested. It should be noted that the reference to being “naturally” above water at high tide precludes an island being artificially augmented to meet this standard, according to most authors, 660 and that artificial islands are not entitled to any maritime zones at all. However, a subset of islands are to be distinguished as “rocks which cannot sustain human habitation or economic life of their own.” 661 These features are entitled only to a territorial sea of twelve nautical miles and a further contiguous zone of the same breadth.662 Therefore, states may not claim an EEZ or continental shelf from these features. Though the

Geneva Continental Shelf Convention had been relatively uncomplicated, offering a continental shelf to all permanently emerged features,663 the rocks provision of UNCLOS has confused the situation. The interpretation of these provisions in the convention that together make up the regime of islands has been controversial and, therefore, Article 121 is widely regarded as being one of the most ambiguous in the

Convention.664

It could, for example, be suggested that the exception for rocks is confined only to those features that are geologically rocky, excluding small, isolated sand banks and islets. However, it has been noted that this interpretation would lead to an absurd result, being that one set of small, uninhabited features would be entitled to all maritime zones while another set would not.665 This outcome would also be counter to the apparent purpose of Article 121, which is to limit the encroachment of national jurisdiction on the area. 666

Finally, Kwiatkowska and Soons conclude that this interpretation is inconsistent with the legislative history

augmentation was designed to strengthen the case for maritime zones, or incidental to it. At It is important to note that the augmentation of low-tide features in order to convert them into islands is definitely not permitted. 660 Charney, 'Rocks', p 867. 661 UNCLOS, Article 121(3). 662 Although on some occasions, even extending a territorial sea to 12 nautical miles is deemed excessively burdensome, as is the case in the Aegean Sea. 663 Charney, 'Rocks', p 865. 664 See Van Dyke et. al. explain: “Proposals for giving all islands the same status as continental nations were submitted by the Pacific island and Greek delegates. Romania, Turkey, and a group of African nations, on the other hand, proposed limiting the maritime zones of islands depending on factors such as size, habitation, and population. The resulting compromise was the ambiguous language of article 121.” Van Dyke et. al., 'The Exclusive Economic Zone', p 435. See also Kwiatkowska and Soons, 'Entitlement', pp 141-142. 665 Alex Oude Elferink, 'Clarifying Article 121(3) of the Law of the Sea Convention: The Limits Set by the Nature of International Legal Processes', IBRU Boundary and Security Bulletin, Summer 1998, p 435. 666 Pardo said 'If a 200 mile limit of jurisdiction could be founded on the possession of uninhabited, remote or very smal lislands, the effectiveness of international administration of ocean space beyond national jurisdiction would be gravely impaired.' Quoted in Kwiatkowska and Soons, 'Entitlement', p 144.

226 of Article 121(3).667 Rocks, in the terms of the Convention, then, must apply to a different category of features, and it has been suggested by some commentators that the purpose of the Law of the Sea Convention is relevant to making the distinction.

Given that the Convention was designed to give exclusive resource rights to coastal populations, it has been argued that only inhabited islands should be given maritime zones beyond the territorial sea and contiguous zone.668 However, some uninhabited islands are very large and it has been pointed out that the size of an island featured prominently in the discussions relating to what kinds of islands should generate maritime zones at the third Law of the Sea Conference.669 Some case law has been relevant to this point, with the ICJ having decided that the island of Jan Mayen should influence the maritime delimitation with

Greenland, despite its lack of a permanent population. Elferink, therefore, summarises the consensus that some islands are simply too large to be considered rocks, regardless of whether they are populated or sustain economic life.670

Indeed, the human habitation and economic life tests were additional to the distinction between rocks and islands. Thus, it would seem a feature that is geologically a rock could generate an EEZ and continental shelf if it passed these tests as all the words in the provision must be interpreted together. 671 However, the human habitation and economic life criteria have proved the most controversial. As Elferink explains, “the terms 'cannot sustain', 'human habitation', 'economic life' and 'of their own' leave significant scope for different interpretations.”672 Despite van Dyke and his co-authors' suggestion that the test be taken as a whole by insisting that an island could support nearby human habitation provided it did so for economic purposes,673 it is relatively clear that the two tests are alternatives and need not both be satisfied.674 667 Kwiatkowska and Soons, 'Entitlement', p 151-153. 668 The “Volga” Case (Russian Federation v. Australia), Prompt Release, ITLOS Case No. 11, Judgment of 23 December 2002. Declaration of Vice-President VukasVolga Case. available at: {http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_11/decl.Vukas.E.pdf} accessed on 16 July 2013. 669 Kwiatkowska and Soons, 'Entitlement', p 157. Moreover, some proposals, e.g. Romania, conflated the habitation and size criteria, suggesting that islands below a specific size simply were not habitable. 670 Marius Gjetnes, 'The Spratlys: Are they Rocks or Islands?' Ocean Development and International Law, 32 (2001), pp 191-204, p 193. 671 Charney, 'Rocks', p 866. 672 Elferink 'Clarifying Article 121(3)', p 59. 673 Van Dyke, 'Disputes Over Islands', p 437. 674 Though the Norwegian text of the Convention seems to suggest the satisfaction of both tests as necessary, the presence of human habitation and economic life was deliberately dropped in favour of the tests being human

227 The central questions relating to economic life is whether that economic activity may take place only on the island itself, or whether it could take place in the territorial sea. Charney prefers the latter view, suggesting that fishing activities in an island's territorial sea constitute an economic life of its own, 675 while

Gjetnes suggests that a strict interpretation would dictate that it is the island itself that should be able to sustain economic life.676 Most commentators are, however, agreed that the classification of the feature depends on the potentiality for economic life at a given moment, not some hypothetical future, though this is not the same as saying that the economic life must be taking place at that moment.677 More clearly for some authors, the economic life that is required must be sufficient to generate enough revenue to purchase in outside supplies necessary to sustain that economic activity. Consequently, the activity itself need not be wholly sustained from the island itself, but should be significant.678 Gjetnes has further suggested that given that the economic life must be the island's own, an activity that could be conducted anywhere, such as the running of an online casino from it, would not be sufficient.679 Others prefer a more expansive view, such as that the presence of a lighthouse gives an island an economic value to shipping.680

In terms of human habitation, it has been concluded that the discussion at the third conference indicates that the population cannot simply be of conservationists, scientists and military personnel. 681

Nevertheless, the habitation need not be permanent,682 though it must be relatively significant and certainly enough to constitute a stable community. One study has suggested that five persons inhabiting an island would be too few to enable it to generate an EEZ and continental shelf, while fifty “could well serve as a population of sufficient size.”683 Again, the test would appear to require the potential for human habitation,

habitation or economic life at the negotiations. Gjetnes, 'The Spratlys', pp 194-195. 675 Charney, 'Rocks', p 870. Kwiatkowska and Soons, 'Entitlement', p 168 agree. 676 Gjetnes, 'The Spratlys', p 196. 677 For example, the presence of resources that may be hypothesised to become recoverable at a future date would not be sufficient to provide an island with an economic life, while resources that could be exploited, but which are not presently being exploited could. See Charney, 'Rocks', p 867 and Gjetnes, 'The Spratlys', p 197 678 Charney, 'Rocks', p 871. Jon M. Van Dyke and R.A. Brooks, 'Uninhabited Islands: Their Impact on the Ownership of the Oceans' Resources,' Ocean Development and International Law, 12:3-4 (1983) pp 265-300, pp 286-288, go a little further, suggesting that an island's human habitation and economic life must be truly sustained without outside support, and with a stable community of human beings. 679 Gjetnes, 'The Spratlys', p 198. 680 Kwiatkowska and Soons, 'Entitlement', p 168. 681 Gjetnes, 'The Spratlys', p 195. Van Dyke et. al., 'The Exclusive Economic Zone', p 438. 682 Charney, 'Rocks', p 868. 683 Van Dyke et. al., 'The Exclusive Economic Zone', p 438.

228 rather than its actual occurrence, though the burden would be on the claimant to prove its possibility. 684 Some authors have suggested that evidence of past habitation could be useful in making a case for its potential habitation, though only by showing that such past habitation could be replicated today.685 Gjetnes goes further than some, suggesting that proving the possibility for human habitation would require demonstrating the presence of essential ingredients for survival, such as food, fresh water and shelter. 686 Kwiatkowska and

Soons, on the other hand, point to inconsistencies, with some small rocks having shrubs and grasses, and some sand islands being devoid of vegetation.687

Schofield concludes that a definitive interpretation of Article 121 would be inconceivable on the basis of an analysis of the text alone.688 Consequently, van Dyke et. al. note that “how these terms ultimately will be interpreted depends of course on the actual maritime claims made by nations on behalf of their uninhabited insular formations and the extent to which those claims are accepted by other nations.”689 A further possible mechanism through which this is achieved is through the making of agreements. An additional possibility is for the Article to be clarified through judicial determinations.

However, as Schofield notes, states and courts have often been successful in side-stepping the issue in their agreements and decisions. Many states have, however, made expansive claims to maritime zones from features, the exclusion of which from the terms of Article 121(3) is dubious.690 It remains the case that the United Kingdom's roll back of its claims from Rockall is the only example of such an effort to modify a claim to make it compliant with the Convention,691 although other states have made more modest claims in the first place in relationship to their islands and insular features. 692 For now, then, it seems the island provisions in UNCLOS are unclear and an area of law which is ripe for generating disputes. As one author

684 Gjetnes, 'Rocks', p 196. 685 Kwiatkowska and Soons, 'Entitlement', pp 161-162. 686 Kwiatkowska and Soons, 'Entitlement', pp 161-162. 687 Kwiatkowska and Soons, 'Entitlement', p 167. 688 Schofield, 'The Trouble With Islands', p 27. 689 Van Dyke et. al., 'The Exclusive Economic Zone', p 439. 690 Van Dyke et. al., 'The Exclusive Economic Zone', p 439. 691 Schofield, 'The Trouble With Islands', p 29. 692 Van Dyke et. al., 'The Exclusive Economic Zone', pp 464-465, suggest that some of this practice relates to the size of islands, their relationship to a mainland coast or that of a larger island.

229 put it, Article 121(3) is “intolerably imprecise” and “a perfect recipe for confusion and conflict.” 693 However, that imprecision is limited and it is certainly not sufficient to enable states legitimately to claim rights to resources off the coasts of islands belonging to other states. This situation is not the case with a further set of principles on which some states could make maritime claims.

Historic Waters and Historic Rights

The maritime zones codified in UNCLOS are not exhaustive of all the claims to resources that states can make at sea. States have also made historic claims to maritime space, which consist of a category of rights that received little mention in UNCLOS. After all, the entire project of establishing exclusive rights for coastal states to the resources proximate to their coasts was designed to bring an end to the historic fishing patterns of the major long-distance fishing nations. Nevertheless, there have been two different categories of historic claims, each with different features: claims to historic waters and claims to historic rights.694

Historic waters have the same status as internal waters or territorial sea, meaning states can exclude or regulate foreign navigation within them. An article in UNCLOS on the territorial sea mentions historic title and an article on bays mentions a category of historic bays, but does not define them. 695 Historic waters and the narrower category of historic bays have existed for a very long time and have been considered to be regulated by customary international law.696 An International Law Commission (ILC) study in 1962 outlined the conditions that must be fulfilled for historic waters legally to exist.697 States must make a claim to waters that is backed up by exercises of authority over them. That authority must be exercised continuously and foreign states must acquiesce to it. The degree to which each of these criteria must be met is uncertain.698

Historic waters involve a claim to exclusive sovereignty over a maritime area, but the second

693 Edward Duncan Brown, 'Rockall and the Limits of National Jurisdiction of the UK, Part 1', Marine Policy, 2:3 (1978) pp181-211, p 206. 694 On the general distinction between historic rights and historic waters, see Clive Symmons, Historic Waters in the Law of the Sea: A Modern Reappraisal, (Leiden: Martinus Nijhoff Publishers, 2008). 695 UNCLOS, Articles 15 and 74. 696 Tunisia-Libya Continental Shelf Case, para 74. 697 United Nations Secretariat, 'Juridical Regime'. 698 D.P. O'Connell, The International Law of the Sea, pp 433-434.

230 category of historic claims – those to historic rights – only relate to particular resources. 699 The preamble to

UNCLOS states that “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.”700 Therefore, historic rights are also regulated by customary international law. The tests for making out a claim of historic rights are the same as those for historic waters, except the degree of authority exercised needs only to relate to the extent of rights claimed. In other words, states do not need to demonstrate long-held exclusive authority over a maritime area, but only such control of the resources to which their claim relates. Such historic rights claims have been made in instances of international litigation, notably in the maritime delimitation case between Libya and Tunisia and in the arbitration between Eritrea and Yemen.

Though there are a number of precedents for historic waters worldwide, these, relate to bays and other areas proximate to land. Many authors simply conclude that expansive historic waters claims unrelated to the coast of a state are incompatible with UNCLOS because it does not mention them beyond the territorial sea and bays.701 However, the status of historic rights is more problematic and it seems they could be claimed anywhere. For example, traditional fishing patters were mentioned in UNCLOS as a factor that states needed to take into account when considering giving other states access to the fisheries in its EEZ. In addition, archipelagic states are also under a duty to recognise traditional fishing rights in their archipelagic waters. Thus, the historic rights of states towards an area with which they may not even be proximate are contemplated by UNCLOS. That said, these exceptions are limited and though historic rights may exist as a matter of customary international law, there are few precedents for them existing within or beyond the EEZ and continental shelf. Moreover, there has been little judicial clarification of the principles relevant to making a claim to historic rights.

Indeed, it has been noted that international courts and tribunals have treated historic rights

699 Symmons, Historic Waters, p 1. 700 UNCLOS, Preamble. 701 Beckman, 'China, UNCLOS', p 12. For a broader discussion, see, United Nations Secretariat, 'Juridical Regime'. Dutton suggests one of the ways in which a Chinese historic waters claim fails is that the waters of the South China Sea around the Spratly Islands do not display a close enough relationship with the land. Dutton, 'Three Disputes', p 47. See UNCLOS Arts 15 and 10(6). See also Florian Dupuy and Pierre-Marie Dupuy, 'A Legal Analysis of China's Historic Rights Claim in the South China Sea', The American Journal of International Law, 107:1 (2013), pp 124- 141, p 139.

231 conservatively. In the litigation between Libya and Tunisia, the court did not pronounce on the validity of

Tunisia's purported historic rights as the boundary it found to be valid was drawn without reference to them and included areas in which Tunisia claimed to exercise the rights anyway. The historic rights of Eritrea similarly did not influence the boundary delimited in its case with Yemen. In that case, the tribunal concluded that:

The conditions that prevailed during many centuries with regard to the traditional openness of the Red Sea marine resources for fishing, its role as a means for unrestricted traffic from one side to the other, together with the common use of the islands by the populations of both coasts, are all important elements capable of creating certain 'historic rights' which accrued in favour of both Parties through a process of historical consolidation as a sort of 'servitude internationale' falling short of territorial sovereignty.702

The tribunal concluded that, notwithstanding the allocation of various islands to each party, the traditional fishing regime in the region was to be perpetuated. There are no similar determinations on the validity of claims to historic rights over continental shelf resources.

Historic rights claims to the resources of the continental shelf are more problematic in doctrinal terms than claims to fisheries. The continental shelf has been considered to be the natural prolongation of the territory of the coastal state. The rights of the coastal state to jurisdiction over its continental shelf, consequently, have been considered to be inherent. Jurisdiction over the continental shelf does not need to be actively declared, unlike the Exclusive Economic Zone. For other states to exploit the resources of a state's continental shelf without its permission is, therefore, proscribed. It is for this reason that the ICJ in the

Tunisia-Libya Case said that

the notion of historic rights or waters and that of the continental shelf are governed by distinct legal regimes in customary international law. The first regime is based on acquisition and occupation, while the second is based on the existence of rights “ipso facto and ab initio.”703

In other words, the rights of the coastal state to the resources of its continental shelf trump the historic rights of other states to those resources. O'Connell says that this was the very purpose of the “inherent” status of

702 Eritrea v Yemen Arbitration, Award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation, Para 126, available at: {http://www.pca-cpa.org/showpage.asp?pag_id=1160} accessed on 17 September 2013. 703 Tunisia-Libya Case, para 100.

232 continental shelf rights.704

Historic claims may, therefore, in some limited circumstances be valid in international law, even though they would appear to contradict UNCLOS. Historic waters may only exist close to the coast of a state which declares them. Historic rights could, conceivably, exist anywhere and need not be proximate to the coast of the state claiming them. The lack of precedents for them make the rules surrounding claiming historic rights under-developed. For his part, Zou has commented that there are “no definitive rules in international law which govern the status of maritime historic rights.”705 This opens up the possibility for legitimate legal disputes. At the same time, however, the inherent flexibility in the doctrines is constrained by the criteria for claiming historic waters and historic rights drawn from the ILC study referenced above.

That historic rights could be claimed close to the coast of other countries and within the maritime zones codified in UNCLOS would represent a challenge to the norms of spatial fairness and proximity on which that treaty was based. However, the doctrine of historic rights cannot be used to acquire new rights to maritime spaces and the evidence necessary to make a valid claim to them should constrain the degree of this challenge. In short, historic rights claims should be, and seemingly are, quite rare, so the disputes that they might generate will also be infrequent. However, disputes such as these, especially if born of claims that appear to over-step the bounds of legitimate legal argument, might be expected to generate further observable implications for the existence of a norm similar to that of territorial integrity.

Further Observable Implications

As the law of the sea property rights order was established in the second half of the last century, a clear picture emerged of states discursively eschewing the historical experience with land and resisting any possibility of its repetition at sea. Negotiators at the law of the sea conferences saw the construction of a marine property rights order and clear maritime boundaries as solutions to disorder, rather than its cause.

However, the discursive commitments of negotiators in a legal conference and how issues play out in real world events might be different. Consequently, further evidence for the theory that behaviour at sea is 704 O'Connell, The International Law of the Sea, p 482. 705 Keyuan Zou, Law of the Sea in East Asia: Issues and Prospects, (Oxford: Routledge, 2005), p 163.

233 conditioned by a norm related to that of territorial integrity would be provided by evidence that the perspectives that were evident at the conference are replicated during contentious episodes of the implementation of the law of the sea property rights order.

Though there have been no actual acts of conquest at sea in the last half century, there have been episodes related to ongoing disputes in which behaviour has appeared to signal possible future maritime revisionism. The following two chapters analyse two such episodes relating to the Arctic Ocean and the

South China Sea. The reaction to such a possibility of revisionism should, then, be to reinforce the norm of the inviolability of maritime jurisdictions. Territorial conflict and particularly anything resembling conquest should be regarded as deviant and backward-looking, as it was when the law of the sea property rights regime was negotiated in the twentieth century. Indeed, the solution to such perceptions of disorder should be considered to be greater regulation and, particularly, the establishment of certain maritime boundaries. Any claims made should be justified by references to law and norms of equitable division of maritime space and we may expect references to be made to the land when problems and solutions relating to disorder at sea are evaluated. Such references reinforce the notion that the land and sea are not so different as is often thought and that the standard of the inviolability of maritime boundaries and that of land borders are related principles.

Conclusion

Behaviour that is clearly proscribed by a norm of territorial integrity is the forceful acquisition of territory or maritime space legitimately under the jurisdiction of another state. Peaceful claims without legal justification are pernicious, but not a breach of territorial integrity norm as conceived by Zacher and understood in this study. The forceful acquisition of disputed territory is problematic, but not a clear breach of the norm of territorial integrity either. Peaceful territorial and maritime disputes, for their part, provide evidence of the effect of the norm as they involve claims to legitimate ownership of the contested territory or maritime space. In order to be legitimate, however, disputes must be justified in legal terms or on the basis of the norms that underpinned the allocation of maritime space in the twentieth century. For legal rules inevitably

234 contain uncertainties and room for honest disagreement over the outcomes they require.

Maritime boundary law and the general norms it refines provide a vocabulary for states to use in their claim-making and ensures there are limits to legitimate claims. Other areas of legal uncertainty relate to the status of islands, including their ability to generate maritime zones and influence delimitations. Similarly, the provisions on ridges in the establishment of the outer limits of the continental shelf are less than clear and there are few precedents for historic rights to maritime space. Finally, in episodes in which maritime claim- making and disputes are highly politicised, we should see evidence that states view territorial conflict and particularly conquest as deviant and legal regulation and particularly definite boundaries as solutions to disorder. References to the similarities between land and sea might reinforce the notion that security problems and solutions are conceived to be similar in marine and territorial spaces. The next two chapters will examine two contemporary cases of maritime regions that have been highly politicised for evidence of these observable implications.

235 CHAPTER 7

THE ARCTIC OCEAN

Safeguarding security and developing cooperation in the North is an international matter and by no means depends on us alone... The main thing is to conduct affairs so that the climate here is determined by the warm Gulf Stream of the European process and not by the Polar chill of accumulated suspicions and prejudices.

- Mikhail Gorbachev

For centuries, harsh weather conditions and almost permanent ice-cover on both land and at sea has meant that the Arctic has been peripheral to the international system. Although parts of the area have been visited for centuries, it is only comparatively recently that the very top of the world has been explored. Throughout the Cold War, the region was militarised to an unprecedented degree, but it was little more than a site for early warning radar systems and a place for ballistic missile submarines to hide. 706 Therefore, much like the dominant historical construction of the ocean, the Arctic has been popularly conceived as a great white void, at most a space to explore, one in which missiles might be launched, or over which they might cross on their way to targets further south. However, climate change has begun to transform the Arctic's physical characteristics and the role it plays in the global system.

In 2007, the summer sea ice retreat in the Arctic Ocean was the most extensive since records began.707 This low of ice coverage was beaten again in 2012. The trend of ever-shrinking and thinning sea ice coverage is expected to continue as global temperatures rise due to the effects of climate change. Scientists have increasingly become concerned that feedback mechanisms may mean the Arctic has reached a tipping

706 See Charles Emmerson, The Future History of the Arctic, (New York: PublicAffairs, 2010) and Michael Byers, Who Owns the Arctic? Understanding Sovereignty Disputes in the North, (Vancouver: Douglas and Mcintyre, 2009). 707 Total coverage fell to 1.65 million square miles. See Andrea Thompson, 'Record Low Arctic Sea Ice Confirmed', Live Science, 1 October 2007, available at: {http://www.livescience.com/1895-record-arctic-sea-ice- confirmed.html} accessed on 16 July 2013.

236 point, which could lead to rapid loss of ice coverage. 708 Predictions have ranged from the Arctic becoming seasonally ice-free in several decades time,709 to the ice disappearing in the summer by 2016.710 The destruction of the Arctic environment by pollution from the use of fossil fuels will, ironically, enable the extraction of oil and gas resources both on land and at sea and potentially provide new navigation routes for international shipping.

It has been estimated that the Arctic may be home to some 90 billion barrels of oil, 1,669 trillion cubic feet of natural gas, and 44 billion barrels of natural gas liquids. Moreover, 84 per cent of these resources are understood to be located offshore.711 In summary, the Arctic continental shelves have been considered to potentially “constitute the geographically largest unexplored prospective area for petroleum remaining on Earth.”712 Though this conclusion is perhaps unsurprising given how much of the Arctic remains unexplored in comparison to the rest of the earth, it has nevertheless been the partial cause of considerable political excitement. Indeed, the anticipation surrounding the potential future Arctic resource bonanza caused a flurry of activity, which reached a crescendo in 2007 with a Russian scientific mission to the north pole.

A period of frenzied speculation about the future ensued after the Russian mission, much of it reflecting uncertainties and misconceptions about the legal and political status of the Arctic, especially the ocean. This uncertainty, even if it was perceived rather than real, provides insights into the fears surrounding the potential for disorder and the responses that were advocated to resolve it. The period of, largely ill- informed, speculation was replaced by political and academic action which reinforced, rather than undermined, the integrity of the law of the sea property rights order and revealed the same patterns pointed 708 Fred Pearce, 'Arctic sea ice may have passed crucial tipping point', New Scientist, 27 March 2012, available at: {http://www.newscientist.com/article/dn21626-arctic-sea-ice-may-have-passed-crucial-tipping-point.html} accessed on 17 September 2013. 709 Eric De Waever. 'Uncertainty in Climate Model Projections of Arctic Sea Ice Decline: An Evaluation Relevant to Polar Bears', US Geological Survey, 2007, pp 17-22. available at: {http://www.usgs.gov/newsroom/special/polar_bears/docs/USGS_PolarBear_DeWeaver_GCM-Uncertainty.pdf} accessed on 17 September 2013. 710 Richard Black, 'New warning on Arctic sea ice melt', BBC News, 8 April 2011, available at: {http://www.bbc.co.uk/news/science-environment-13002706} accessed 18 June 2012. 711 United States Geological Survey, 'Circum-Arctic Resource Appraisal: Estimates of Undiscovered Oil and Gas North of the Arctic Circle', USGS Fact Sheet 2008-3049, 2008, available at: {http://pubs.usgs.gov/fs/2008/3049/fs2008- 3049.pdf} accessed on 16 July 2013. 712 United States Geological Survey, 'Circum-Arctic'.

237 to earlier.

Indeed, three things were apparent from the politicisation of the Arctic: the distinction between land and the sea was blurred by politicians, activists and commentators alike, particularly when identifying problematic behaviour in the oceans. A possibility for territorial competition in the region was certainly appreciated, but this territorial contestation was understood to be deeply problematic and deviant, reinforcing the perceived need to regulate the oceans and draw certain maritime boundaries. Indeed, the processes of drawing those boundaries which had, in some cases, been ongoing since the 1970s continued as normal, though perhaps with added impetus. Finally, although territorial conflict was considered possible in some quarters, the re-emergence of conquest was regarded as unthinkable and states justified their overlapping maritime claims in legal terms, further reinforcing the standard of the inviolability of legitimate maritime jurisdictions.

Land, Sea and Conflict in the Arctic

At the beginning of August 2007, two Russian mini-submersibles – Mir I and Mir II – descended under the

Arctic ice to the bottom of the sea. Artur Chilingarov, the leader of the Russian mission, was reported to have said that his mission was to prove the Arctic was Russian. “The Arctic always was Russian,” he was quoted as saying “and it will remain Russian.”713 One of the submersibles dropped a titanium Russian flag at the north pole setting off a firestorm of media interest and political concern relating to the Arctic. Indeed, though the mission had been a scientific one to examine the characteristics of the seabed, for the world's media, the symbolism was clear: the flag-planting stunt was widely perceived to signal Russian assertiveness, if not outright future expansionism, in the Arctic. For example, the National Geographic headline reporting on the mission was “Russia Plants Underwater Flag, Claims Arctic Seafloor”714 suggesting that renewed territorial

713 Andrew Chung, 'The Arctic Cold War', Toronto Star, 12 August 2007, available at: {http://www.thestar.com/sciencetech/Ideas/article/245440} accessed on 16 July 2013. 714 Richard A. Lovett, 'Russia Plants Underwater Flag, Claims Arctic Seafloor', National Geographic, 3 August 2007, available at: {http://news.nationalgeographic.com/news/2007/08/070802-russia-pole.html} accessed on 16 July 2013. Similarly, the Telegraph headline was “Russia Claims North Pole with Arctic flag stunt”. Adrian Blomfield, 'Russia Claims North Pole with Arctic flag stunt', The Telegraph, 1 August 2007, available at: {http://www.telegraph.co.uk/news/worldnews/1559165/Russia-claims-North-Pole-with-Arctic-flag-stunt.html} accessed on 16 July 2013.

238 aggrandisement at sea might be the order of the day. Other media outlets portrayed the situation as a race for

Arctic resources amounting to a kind of gold (or oil) rush. 715 This imagery of unregulated competition was reinforced by warnings that the Arctic powers were augmenting their military capabilities in the region and possibly igniting an arms race.716

Even some academic commentators joined the speculation that the Arctic could become an arena for political tension. This view was encouraged by an assessment in some quarters that the Arctic was without a legal regime.717 Borgeson warned that “the region could erupt in an armed mad dash for its resources.”718

Other authors favoured the view that, even though a legal regime was in place, it might have little effect. In a commentary on the Arctic published in the Wall Street Journal, the legal scholar Eric Posner explained that

Power, not international law, will settle the issue [of sovereignty claims in the Arctic]. Indeed, international law recognizes this fact by making title dependent on a nation's ability to exert control over an area. That is why Russia is sending ships into the Arctic, and why Canada is saying that it will patrol the Northwest Passage. As long as such expressions of power are credible, other nations, disadvantaged by distance, will generally acquiesce and sovereignty will be extended accordingly.719

Though Posner was perhaps referring to the lack of incentives for extra-regional powers to become involved in the region, the effect of analyses like these was to fuel concerns about looming conflict. Indeed, Posner continued, stating that Russia was “re-emerging as a global troublemaker” and that it was positioned to take the “lion's share” when the Arctic was carved up because of its power and propinquity.

715 The Economist, 'Gold Rush Under the Ice', The Economist, 3 August 2007, available at: {http://www.economist.com/node/9607005} accessed on 16 July 2013. Book titles have used similar imagery. See, for example, Roger Howard, Arctic Gold Rush: The New Race for Tomorrow's Natural Resources, (London: Continuum, 2009). Though it should be noted that the National Geographic and Economist reports are considerably less alarmist than the headlines. 716 Bob Weber, 'Denmark Joins Arctic Arms Race', Toronto Star, 26 July 2009, {http://www.thestar.com/news/world/article/672104--denmark-joins-arctic-arms-race} accessed on 17 September 2013; Rob Huebert, 'Arctic Sovereignty: Let's join the Texan and St. Nick', The Globe and Mail, 12 November 2009, available at: {http://www.theglobeandmail.com/commentary/arctic-sovereignty-lets-join-the-texan-and-st- nick/article1204657/} accessed on 17 September 2013; Rob Huebert, 'Welcome to a New Era of Arctic Security', The Globe and Mail, 24 August, 2010, available at: {http://www.theglobeandmail.com/news/opinions/welcome-to- a-new-era-of-arctic-security/article1682704/} accessed on 17 September 2013. 717 For example, Scott Borgeson noted “The Arctic region is not currently governed by any comprehensive multilateral norms and regulations because it was never expected to become a navigable water- way or a site for large-scale commercial development.” Scott Borgeson, 'Arctic Meltdown: The Economic and Security Implications of Global Warming', Foreign Affairs, 87:2 (2008), pp. 63-77, p 65, 718 Borgeson, 'The Arctic Region'. 719 Eric Posner, 'The New Race for the Arctic', Wall Street Journal, 3 August 2007, available at: {http://online.wsj.com/article/SB118610915886687045.html} accessed on 24 July 2013.

239 This construction of the Arctic as an arena of conflict and potential expansionism has doggedly persisted and permeated the collective consciousness, and a clear theme has been the conflation of the Arctic offshore with land territory and concepts associated with it.720 One article referred to the situation as the

“world’s last colonial scramble.”721 Similarly, a commentator described the situation in the high north as akin to the scramble for Africa, which took place in the nineteenth century in the absence of a functioning agreed framework for how to divide the continent.722 Additionally, one satirical media cartoon depicted five submarines all trying to plant signs saying “Mine” and “My land” on the same part of the seabed. 723

Statements from policymakers, too, have drawn on this land-like construction of the Arctic and national rights in the region. Visiting the members of a 2009 military operation in Nunavut, Canadian Prime Minister,

Stephen Harper, said “[p]rotecting national sovereignty, the integrity of our borders, is the first and foremost responsibility of a national government.”724 Indeed, the discourse of “Arctic Sovereignty”725 that has become popular in the last several years perhaps exhibits this same blurring of the distinction between land and sea, suggesting as it does that the state extends unproblematically offshore. Although parts of the disputed jurisdictions in the Arctic do involve claims of exclusive sovereignty – particularly the North West Passage –

Arctic issues tend to be conflated under the banner of Arctic sovereignty and territorial disputes.726

This trend seemingly creates and reproduces a widespread perception of the new importance of

720 A Gordon Foundation study found: “Without reflection, the top-of-mind imagery of Arctic Security is dominated by 'classical' security. Terms like 'threats', 'border disputes', 'integrity', and 'sovereignty' are most commonly cited by respondents.” Ekos Research Associates, Munk School of Global Affairs and Walter and Duncan Gordon Foundation, 'Rethinking the Top of the World: Arctic Security Public Opinion Survey,' January 2011, available at: {http://gordonfoundation.ca/sites/default/files/publications/24-05-2011%20Rethinking%20the%20Top%20of %20the%20World%20(3)%20(3)_0.pdf} accessed on 24 July 2013. 721 Blomfield, 'Russia Claims North Pole'. 722 Prof Tom Burke suggested “There's a real scramble going on for resources, a kind of mini-version of the scramble for Africa... There is a tremendous heightening of the political tensions around this issue.” Meirion Jones and Susan Watts, 'Wikileaks cables show race to carve up Arctic', BBC News, 12 May 2011, available at: { http://news.bbc.co.uk/2/hi/programmes/newsnight/9483790.stm } accessed on 24 July 2013. 723 Kevin Kallaugher, 'KAL's cartoon', The Economist, 16 August 2007, available at: {http://www.economist.com/node/9669712} accessed on 17 September 2013. 724 Bruce Campion-Smith, 'PM Issues Arctic Warning', Toronto Star, 19 August 2009, available at: {http://www.thestar.com/news/canada/2009/08/19/pm_issues_arctic_warning.html} accessed on 24 July 2013. 725 Jill Mahoney, 'Canadians rank Arctic sovereignty as top foreign-policy priorit', The Globe and Mail, 24 January 2011, available at: {http://www.theglobeandmail.com/news/politics/canadians-rank-arctic-sovereignty-as-top- foreign-policy-priority/article1881287/} accessed on 24 July 2013. 726 See, for example, Terry Macalister, 'Rush for Arctic's Resources Provokes Territorial Tussles', The Guardian, 6 July 2011, available at: {http://www.guardian.co.uk/world/2011/jul/06/arctic-resources-territorial-dispute} accessed on 24 July 2013.

240 maritime spaces and a sense that they are simultaneously a part of national territory and worthy of protection as if they were identical to it. One study commented that “[t]he depth of public commitment to Arctic sovereignty, and its strong connection to national identity and sovereignty, renders this a politically charged issue, rife with opportunity and risk.”727 However, rather than signalling a renewal of the appetite to acquire territory, the politicisation of the Arctic offshore and its conflation with land has catalysed efforts to reinforce political stability in the region. Both the public and policymakers prefer cooperation over confrontation728 and there has been a lively debate on how to bring order to the Arctic.

Some of these proposals have also blurred the distinction between land and sea. This trend was clearest in the comparisons between the Antarctic and Arctic, which became popular among some commentators, activists and politicians. The Antarctic treaty system was developed in response to the existence of territorial disputes and the possibility of territorial competition being brought to the continent. It dealt with these potential problems by freezing sovereignty claims in the world's southernmost landmass and by demilitarizing the entire continent.729 Indeed, the perception of possible territorial conflict in the Arctic, combined with the fragile environment of the region, became the basis of several calls for a new, comprehensive treaty, modelled on the Antarctic regime.730

Some of the most vocal demands for a new treaty came from the Parliament of the European Union, which passed a resolution in 2008 calling for an Arctic treaty. 731 The body held a further debate on the topic

727 Ekos Research Associates et. al. 'Rethinking the Top of the World', p iv. 728 Ekos Research Associates et. al. 'Rethinking the Top of the World', p vii. 729 Bulkeley states that one of the main problems being grappled with at the time of the conclusion of the treaty was “the resumption of the territorial conflict between Argentina, Britain and Chile in respect of the Antarctic Peninsula.” Rip Bulkeley, 'The political origins of the Antarctic Treaty', Polar Record, 46:1 (2010), pp 9-11. Article I(1) states: Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measure of a military nature, such as the establishment of military bases and fortifications, the carrying out of military manoeuvres, as well as the testing of any type of weapon. And IV states: No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force. Antarctic Treaty. 730 See Timo Koivurova and Erik J. Molenaar, 'International Governance and Regulation of the Marine Arctic: Overview and Gap Analysis, WWF, available at {http://www.wwf.se/source.php/1223579/International %20Governance%20and%20Regulation%20of%20the%20Marine%20Arctic.pdf} accessed on 24 July 2013. 731 European Parliament Resolution on Arctic Governance, 9 October 2008, available at {http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008- 0474+0+DOC+XML+V0//EN&language=EN} accessed on 24 July 2013.

241 of Arctic governance in March 2010, which clearly revealed the impetus for this drive. During the proceedings, the MEP Satu Hassi stated “an oil and gas rush has started in the Arctic,” with another MEP suggesting that Russia had expansionist tendencies that could become apparent there. 732 The concern about the perceived lawlessness of the region was also manifest: Zigmantas Balčytis agreed that the “region is becoming very vulnerable because of environmental problems and the division of its resources between states and this may have negative consequences for international stability and the interests of European security.” He continued: “I feel that it is also time to start thinking about an international convention on the governance of this region.” Søren Bo Søndergaard drew an explicit comparison between the Arctic and the resolution of the political status of the Antarctic, saying it was “interesting that we have succeeded in forging a treaty on the Antarctic, in which we have ruled out military presence and stipulated that this region may only be used for peaceful purposes.” Though this debate was not conducted on the basis of well-developed legal expertise, it illustrates concerns relating to possible territorial-like competition at sea and the blurring of the land-sea distinction.

An article in the Christian Science Monitor about the Arctic best illustrated the simplistic conflation of the characteristics of land and sea that was common in the calls for a new Arctic treaty modelled on that which regulates Antarctica:

In the mid-20th century, the contest to exploit the Antarctic led to a treaty calling for the southern polar region to be used “in the interests of all mankind.” That was in contrast to the 1884-85 Berlin Conference that tried to resolve claims on Africa between imperialist Britain, France, and Germany – only to see a damaging “scramble for Africa.” And in Southeast Asia today, oil riches under the Spratly Sea remain a source of high tension between China, Vietnam, Taiwan, the Philippines, and other bordering nations.733

Though more informed analyses dismiss the possibility of negotiating a new Arctic Treaty modelled on that in place for Antarctica because of the existence of UNCLOS, the debate has been instructive, showing that territorial competition at sea as on land is a particular fear that is seen as backward-looking and uncivilised.

732 See statement of Charles Tannock, EU Policy on Arctic Issues (debate), 10 March 2010, available at {http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20100310+ITEM- 011+DOC+XML+V0//EN} accessed on 24 July 2013. 733 'Scramble for the Arctic', Christian Science Monitor, 21 August 2007, available at: {http://www.csmonitor.com/2007/0821/p08s01-comv.html} accessed on 24 July 2013.

242 The favoured alternative that is contrasted with this problematic scenario is proper legal regulation.

Thus, though the media and, in some cases, the political discourse relating to the Arctic problem has been relatively ill-informed and certainly sensationalised, it has demonstrated a number of clear understandings. Though media sensationalisation of political problems may be judged problematic in many instances, particularly as it often occurs to promote commercial objectives, in this case it reinforces and reflects the wide diffusion of the problematisation of territorial conflict and aggrandisement. To be sure, media sensationalism suggests that the activity engaged in is not commonplace or expected, but represents a departure from expected or appropriate standards of behaviour. The same conclusions can be drawn from the expert opinion and politicisation of the issue in governmental circles. Though the perception of lawlessness was incorrect, it demonstrates the similarity of thinking about the modern-day Arctic to the thinking about the oceans more generally as the law of the sea property rights order was created: disorder and territorial competition is to be eschewed, in favour of the stability brought about by legal regulation. This understanding reinforces the interpretation that boundaries, were they present, would not, and certainly could not legitimately, be changed by force.

Indeed, perhaps the best illustration of how illegitimate territorial expansionism at sea is viewed today among practitioners came from within the government of an Arctic coastal state itself. In Parliament,

Canada’s foreign minister, Peter MacKay, stated in response to the Russian scientific mission to the pole:

“this isn’t the 15th century. You can’t go around the world and just plant flags and say ‘We’re claiming this territory’.” This statement made no distinction between land and sea and reinforced the interpretation of unregulated territorial aggrandisement as deviant and backward-looking. MacKay continued: “There is no threat to Canadian sovereignty in the Arctic… we’re not at all concerned about this mission – basically it’s just a show by Russia.”734 This view was echoed by a legal adviser from the Danish Foreign Ministry who said “[w]e note . . . [the Russian flag event] with a smile . . . . It’s more a media stunt than anything else.”735

734 Reuters, 'MacKay mocks Russia’s ‘15th century’ Arctic claim', canada.com, August 2, 2007, available at" {http://www.canada.com/montrealgazette/story.html?id=3f4b4327-92a7-4043-ae95-3575763d7b08} accessed on 24 July 2013. 735 Quoted in Ted L. McDorman 'The Continental Shelf Beyond 200 NM: Law and Politics in the Arctic Ocean', Journal of Transnational Law and Policy, 18:2 (2009) pp 155-194, p 158.

243 Perspectives like these suggest that a return to conquest was both backward and not in any way anticipated by the very states with the greatest interest in the region. Importantly, private communications made by key decision-makers relating to the Arctic corroborate their public positions. These perspectives demonstrate neatly the impression that a country might conquer Arctic maritime jurisdictions was thought absurd and that the politicisation of the Arctic was essentially seen as bravado.

Wikileaks released a set of US Embassy Cables relating to the political discussions over Arctic off- shore jurisdiction in 2011.736 Canadian rhetoric relating to the Arctic was dismissed by the American communications as simple grand-standing. One cable reported that in a long and wide-ranging meeting between the US Ambassador to Canada and Prime Minister Stephen Harper, the PM “did not once mention the Arctic.” The cable concluded that “the PM's public stance on the Arctic may not reflect his private, perhaps more pragmatic, priorities.”737 The US perspective is that Canadian sabre-rattling in the Arctic is a useful political device for the Conservative Party, not a threat to Arctic Security. Indeed, another cable confirms that Prime Minister Harper thought relations with Russia in the Arctic were good and there was no chance of Arctic states going to war with one another. It has also been noted elsewhere that there has been no contract yet signed on the much-vaunted new icebreakers that had been proposed by the then opposition

Conservatives in Canada in 2005 in an effort to bolster the Canadian government's presence in the high north.738

Finally, particularly notable is a joke made by then Danish Foreign Minister Per Stig Moller at a meeting of Arctic Ocean states: he said that if the US failed to ratify UNCLOS “the rest of us will have more to carve up in the Arctic.”739 The fact that the minister joked about such an issue demonstrates clearly how unthinkable such a concept was thought to be. Similarly, while a senior NATO Naval Commander warned of the danger of conflict in the Arctic, he did not contemplate a return to conquest in the region, instead

736 The cables are available at: http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/12_05_11_wikicables_artic.pdf. 737 The Canadian Press, 'Wikileaks: US Dismisses Harper’s Arctic Talk', CBC News, 12 May 2011, available at: {http://www.cbc.ca/news/canada/story/2011/05/12/wikileaks-cable-arctic-harper.html} accessed on 24 July 2013. 738 Robert Huebert, 'Canadian Arctic Maritime Security: The Return to Canada's Third Ocean', Canadian Forces Journal, 8:2 (2008), available at: {http://www.journal.forces.gc.ca/vo8/no2/huebert-eng.asp} accessed on 24 July 2013. 739 See http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/12_05_11_wikicables_artic.pdf.

244 concentrating on the possibility for maritime boundary disputes to become tense.740 To be sure, the political activity that followed the Russian expedition to the pole saw the reaffirmation among the Arctic coastal states of the legal order applicable to maritime space in the region and demonstrated there was no appetite to return at sea to the territorial conflict that had marked the historical experience with land. Throughout this process, it was taken for granted that maritime jurisdictions would be inviolable.

Order Reaffirmed

In hindsight, it is clear to many that the law of the sea property rights order applies unproblematically to the

Arctic Ocean. However, this position was not always obvious and, although the idea that the region is lawless is incorrect, that is not to say that there has not been some anticipation that a choice had to be made between governing regimes for the Arctic. Indeed, the Arctic has been constructed not as simply another ocean. Whether because of its unique physical characteristics as an ice-covered space, or because of its particular environmental vulnerability, the Arctic has often been constructed as an exception. 741 For some authors and commentators this has meant a different kind of treatment is necessary for the Arctic Ocean. The calls for an Antarctic-style treaty for the Arctic reflected this understanding and, in short, the distinctiveness of the region seemed to provide bases for challenging the law of the sea property rights order. For example,

Borgeson commented: “The region’s unique geographic circumstances do not allow for a neat application”742 of the law of the sea framework, before calling for a special treaty for the region.

Although the freezing of national claims to the Arctic was widely perceived to be impractical, the history of the Antarctic appeared to provide a model for the Arctic in a different way. Prior to the negotiation of the Antarctic Treaty, jurisdiction over the continent had been marked out on the basis of national sectors by claimant states. This model had also historically been advocated for the Arctic. Indeed, an alternative

740 Admiral James G Stavridis, supreme allied commander for Europe, said "For now, the disputes in the north have been dealt with peacefully, but climate change could alter the equilibrium over the coming years in the race of temptation for exploitation of more readily accessible natural resources." Quoted in Terry Macalister, 'Climate change could lead to Arctic conflict, warns senior Nato commander', The Guardian, 11 October 2010, available at: {http://www.guardian.co.uk/environment/2010/oct/11/nato-conflict-arctic-resources} accessed on 24 July 2013. 741 For instance, the special status of the Arctic Ocean was, in effect, recognised by the law of the sea convention, Article 134 of which gives states different rights to regulate ice-covered waters to those applicable elsewhere. 742 Borgeson, 'The Arctic Region', p 72.

245 framework to that contained in the Law of the Sea Convention and the treaties and customary law prior to it had been urged for the Arctic at various points and is known as the sector theory. The sector theory originated in the Canadian Parliament in 1907 when Senator Pascal Poirier counselled the mutual division of the Arctic's islands among the coastal states. He said

a country whose possession today goes up to the Arctic regions will have a right, or should have a right, or has a right, to all the lands that are to be found in the waters between a line extending from its eastern extremity north, and another line extending from the western extremity north. All the lands between the two lines up to the North Pole should belong and do belong to the country whose territory abuts up there.

This idea was implemented in Canadian and Soviet legislation around two decades later.743 Although Poirier's original plan had been only for the lands falling within the respective coastal states' sectors to come under their jurisdiction, the view that the theory could be extended to include ice and water in the region became common, though still contested.744

Even up until the end of the last century, the positions of the two principal proponents of the sector theory were ambiguous. The Soviet Union and, later, Russia relied on sector lines – though not simply the sector theory – in its maritime boundary claims with Norway. It also agreed a boundary based on a meridian line in the Chukchi Sea with the United States and the distinctive environment of the Arctic appeared to provide credible reasons to depart from the legal framework applicable to other regions. 745 Expansionism in violation of the norms embodied in the law of the sea convention therefore seemed to be possible in the

Arctic right up until the latest period of politicization of the region. Such expansionism would not have represented a breach of the norm that national maritime zones were inviolable, as it merely represented a different – and some might say still equitable – division of the Arctic between coastal states. On the other hand, it would have obliterated the admittedly small areas of probable international seabed in the region and thus represented the expansion of coastal state continental shelf rights beyond those codified in UNCLOS.

However, the trend has been for the gradual abandonment of the notion that the sector theory could be used

743 See Leonid Timtchenko, 'The Russian Sectoral Concept: Past and Present', Arctic, 50:1 (1997), pp 29-35, p 29. 744 Timtchenko, 'The Russian Sectoral Concept', pp 30-31. 745 This view was drawn on by some authors. See Timtchenko, 'The Russian Sectoral Concept'.

246 to assert rights to the maritime areas of the Arctic, reinforcing the global scope of the law of the sea treaty.746

In 2006, the Canadian Prime Minister definitively abandoned claims based on the sector theory in a speech in Nunavut. He said:

I am here today to make it absolutely clear there is no question about Canada's Arctic border. It extends from the northern tip of Labrador all the way up the East coast of Ellesmere Island to Alert. Then it traces the western perimeter of the Queen Elizabeth Islands down to the Beaufort Sea. From there is hugs the coasts of the Northwest Territories and Yukon to the Canada-U.S. Border at Alaska. All along the border, our jurisdiction extends outward 200 miles into the surrounding sea, just as it does along our Atlantic and Pacific coastlines. No more. And no less.747

The Russian position also evolved during the latter stages of the Cold War and recent developments, including its submission to the CLCS, confirm that it, too, has abandoned any notion of challenging the property rights regime embodied in the Law of the Sea Convention. The first minor challenge to the supremacy of the law of the sea property rights order in the Arctic, therefore, seems to have been defeated.

Legal regulation was seen as a solution to the problem of disorder in the region by policymakers and commentators alike, and it was the regime embodied in the law of the sea that was confirmed as that which would be appropriate for use in the Arctic. Indeed, the reaction to the politicisation of the Arctic in the wake of the Russian flag-planting has been to deny any intention to engage in expansionism. This view emanated perhaps most clearly from Russia itself.

To be sure, the response within Russia to the planting of its flag at the north pole was to deny any intention to engage in illegitimate expansionism. Viktor Posyolov, deputy director of Russia's Institute of

World Ocean Geology and Mineral Resources told the Associated Press that the expedition to the north pole

“means nothing”748 from a legal standpoint and that “a unilateral annexation of the area by Russia is impossible.”749 The notion that Russia somehow had expansionist intentions was later dispelled at the highest levels by the Russian Prime Minister, Vladimir Putin. At a news conference shortly after the flag-planting, he said that Russia “has the right to a part of the shelf, but we are conducting it in line with international laws, 746 Timtchenko, 'The Russian Sectoral Concept', 747 Stephen Harper, 'Securing Canadian Sovereignty in the Arctic', speech delivered at Iqaluit, Nunavut, August 12, 2006, available at: {byers.typepad.com/arctic/2009/03/securing-canadian-sovereignty-in-the-arctic.html} accessed on 24 July 2013. 748 Lovett, 'Russia Plants Underwater Flag'. 749 Blomfield, 'Russia Claims North Pole'.

247 under the auspices of the UN”. He also reacted to the Canadian protest asking, “why be so nervous?

Americans once planted their national flag on the moon. Why should we be worrying about this? The moon did not become the property of the US.”750 The publication of a Russian Security Council multi-year Arctic policy document saw this view reaffirmed a year later and the Foreign Ministry asserted that “Russia strictly abides by the norms and principles of international law and is firmly determined to act within existing international agreements and mechanisms.”751 Far from representing an episode of intended or actual territorial expansionism at sea, then, Russian policymakers have stressed the innocuous nature of the flag planting and Russia’s focus on proving its own rights to resources under the existing rules and procedures of the law of the sea, rather than challenging those of others. This behaviour, therefore, reinforced the inviolability of ocean jurisdictions and compliance with UNCLOS, rather than undermined these standards.

The north pole flag-planting episode catalysed a broad political effort to calm tensions relating to the

Arctic and its future governance. The Danish foreign ministry convened a meeting of representatives from

Arctic coastal states at Ilulissat, Greenland, in May 2008 to discuss the framework that would apply to the region. The Declaration published after their meeting said: “the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea. We remain committed to this legal framework...” 752 Any lingering doubts as to what the legal regime of the Arctic should be, therefore, began to erode. It is critical that by committing themselves to the global law of the sea, all the Arctic states collectively agreed not only to respect each other’s jurisdictions, but also by implication the international rights in the High North both to common heritage seabed resources and to high seas fisheries.

The practical behaviour of the Arctic coastal states appears to conform to the public and private statements of their policies. In terms of the seaward limits of their jurisdictions, all the Arctic coastal states

750 Quoted in 'Russia Seeks to Prove it has Rights to Part of Arctic Shelf', RiaNovosti, 14 February 2008, available at: {http://en.rian.ru/world/20080214/99207378.html} accesed on 17 September 2013. 751 Betsy Baker, 'Law, Science and the Continental Shelf', American University International Law Review, 25 (2010) pp 251-281, p 274. 752 The Ilulissat Declaration is available at: http://guides.lib.uchicago.edu/northpolesovereignty.

248 have established exclusive economic zones in accordance with the treaty and they have been making efforts to determine the limits of their continental shelves. Though media have focused on what some have characterized as incipient arms races and military build-ups in the Arctic, it is hardly the case that the Arctic coastal states are preparing to annex the maritime jurisdictions of their neighbours, or indeed of the international community in the area beyond national jurisdiction. Instead, all the Arctic coastal states have sent ice-breakers north, full, not of soldiers, but of scientists, to establish their jurisdiction over their extended continental shelf. Even the United States, which has not ratified UNCLOS, has sent the US Coast

Guard Icebreaker Healy to map the Beaufort Sea floor in order to be able to gather scientific data to support its jurisdiction over the resources there.753 The other coastal states have also been engaged in extensive seafloor mapping in order to establish the limits of their respective extended continental shelves.754

Furthermore, Russia has already submitted information to the CLCS, though it has been asked for more.

Norway has provided data and its submission has been accepted, and Canada and Denmark have yet to reach the deadlines for their submissions, though their preparations for submitting their claims to the CLCS are well advanced. The outcome of this process is, therefore, still uncertain, although it appears that some of the

Arctic Ocean continental shelf may be shared which would require its delimitation between the opposite and adjacent states.

Indeed, the Ilulissat Declaration contained one further important commitment “to the orderly settlement of any possible overlapping claims.” To be sure, much of the unease about possible conflict in the

Arctic emanates from concern about the set of existing and possible overlapping claims to maritime space among the coastal states. It is perhaps with this in mind that a number of Arctic countries have conducted military exercises in the region. Canada has held small and localised military operations in the southern

Arctic every year since 2007, and even did so collaboratively with the Danes in 2010. It goes without saying

753 The United States considers the main provisions of UNCLOS to reflect international customary law. See US Department of State, 'Defining the Limits of the US Continental Shelf', available at: {http://www.state.gov/e/oes/continentalshelf/} accessed on 25 July 2013. 754 See for example Denmark's 'The Continental Shelf Project', available at: {http://a76.dk/lng_uk/main.html} accessed on 25 July 2013. Or Canada's Extended Continental Shelf Project. Foreign Affairs, Trade and Development Canada, 'Canada's Extended Continental Shelf', available at: {http://www.international.gc.ca/continental/index.aspx?view} accessed on 25 July 2013.

249 that the justification for these activities has been that they have been undertaken for the purpose of augmenting defence, not in preparation for engaging in acts of conquest. 755 Given that the norm of maritime territorial integrity does not predict a lack of legitimate disputes, or even those disputes becoming violent, the anxieties these preparations reveal do not suggest any appreciation that there is a possibility of the renewal of conquest in the region. At most they merely reflect the possibility that disputes, wherever they are and to whatever they relate, could be dangerous. Indeed, that states have been eager to resolve their maritime boundary disputes is testament to this point of view and the internalisation of the standard that maritime jurisdictions are sacrosanct.

The negotiation of final boundaries has been viewed as a prerequisite to entrenching the peace and stability of the region. For example, the website for Canada's Northern Strategy states “Canada is demonstrating effective stewardship and leadership internationally, to promote a stable, rules-based Arctic region where the rights of sovereign states are respected in accordance with international law and diplomacy.”756 Implementing this vision, Canada signalled its desire to enter into boundary negotiations with its northern neighbours in the Speech from the Throne in 2011 and has held preliminary discussions on the

Beaufort Sea dispute with the United States.

Similar sentiments were echoed in an article written by the Russian and Norwegian foreign ministers in Canada's Globe and Mail after the negotiation of the treaty delimiting their respective maritime zones in the Barents Sea. In it, they said “we firmly believe that the Arctic can be used to demonstrate just how much peace and collective interests can be served through the implementation of the international rule of law.

Moreover, we believe that the challenges in the Arctic should inspire momentum in international relations, based on co-operation rather than rivalry and confrontation, and we believe that important steps have already been taken toward this goal.” Hailing their agreement, they continued: “We hope that the agreement will inspire other countries in their attempts to resolve their maritime disputes, in the High North and elsewhere, in a way that avoids conflict and strengthens international co-operation.”757 Thus, legal regulation, and

755 See Harper, 'Securing Canadian Sovereignty'. 756 Government of Canada, 'Canada's Northern Strategy: Exercising Our Arctic Sovereignty', available at: {http://www.northernstrategy.gc.ca/sov/index-eng.asp} accessed on 25 July 2013. 757 Sergei Lavrov and Jonas Gahr Støre, 'Canada, take note: Here's how to resolve maritime disputes', The Globe and

250 especially the delimitation of firm and final boundaries in the Arctic has been seen as a solution to the potential for disorder. Indeed, the existence of the disputes and the perception of the danger of their escalation has put pressure on states to resolve them. This suggests a mechanism through which the effect of the maritime territorial integrity norm is strengthened. Moreover, these views are decidedly similar to those which prevailed as the law of the sea property rights order was created. They reflect the fact that maritime territorial integrity has been taken for granted, a conclusion that is also apparent from the claims made by the

Arctic coastal states in the very boundary disputes they seek to resolve.

The Physical and Political Geography of the Arctic Ocean

The Arctic Ocean is the smallest of the world's oceans, surrounded by five coastal states – Canada, Denmark

(Greenland), Norway, the Russian Federation and the United States. It has a narrow entrance through the

Bering Strait between Alaska and Russia's far east and is connected to the Atlantic Ocean by the Greenland and Labrador Seas. The ocean includes a number of peripheral seas, such as the Beaufort and Barents Seas, north of Alaska and the Yukon and Russia and Norway respectively.758 The Arctic Ocean is also the shallowest of the world's oceans, and includes extensive continental shelves, with the Siberian shelf being the largest in the world. Complexity is introduced into the continental margin by a series of ridges that intersect the seafloor and divide it into two large basins and four smaller sub-basins.

A distinctive and large ridge, known as the Lomonosov Ridge extends some 1,800 km across the floor of the Arctic Ocean from the Siberian shelf to the area around the continental margins of Canada's

Ellesmere Island and Greenland. It subdivides the Arctic Ocean into two large basins – the Amerasian and

Eurasian Basins. Located within the Eurasian basin is the Gakkel Ridge, which is part of the mid-ocean spreading ridge system and is located between Greenland and Siberia. This ridge subdivides the Eurasian

Basin into the Fram and Nansen basins. In the Amerasian Basin is a ridge system known as the Alpha-

Mendeleev Ridge. It, too, splits the Amerasian Basin into two further subdivisions – the Makarov and

Mail, 21 September, 2010. available at: {http://byers.typepad.com/arctic/2010/09/canada-take-note-heres-how-to- resolve-maritime-disputes.html#more} accessed on 25 July 2013. 758 Other peripheral seas include Baffin Bay, the Chukchi Sea, East Siberian Sea, Grennland Sea, Hudson Bay, Hudson Strait, Kara Sea, Laptev Sea, Lincoln Sea and White Sea.

251 Canada Basins.

Because of the ridge-like structures of the Arctic Ocean seabed, coastal states may be able to extend their jurisdiction over almost all the Arctic Ocean. If the ridges are agreed to be natural components of the continental margin, only two small areas of common heritage of humanity seabed would remain. One would be in the Amerasian Basin and has been described as “a roughly trapezoidal zone in the Mendeleev Abyssal

Plain in the Canada Basin that is circumscribed by both the 350-nm limits and the 2500-m isobath projected seaward by 100 nm, combining the outer limits of Canada, Russia, and the US.” 759 The second is in the

Eurasian Basin and incorporates the Gakkel Ridge – an oceanic ridge not susceptible to national jurisdiction.

Maritime boundaries in the Arctic Ocean have been established between Canada and Greenland in the Davis Strait, Baffin Bay and the Nares Strait; between the USSR (now Russia) and the United States in the Bering Sea, Bering Strait, and north through the Chukchi Sea; and, most recently, between Norway and

Russia in the Barents Sea. The Canada-Denmark boundary is a negotiated line based largely on the equidistance principle.760 It was concluded in 1973 and terminates where the Nares Strait opens up into the

Lincoln Sea. The USA-USSR boundary was agreed in 1990 and is based on a Convention signed between the USA and Russia in 1867. The boundary runs along the 168° 58' 37” W meridian “into the Arctic Ocean as far as permitted by international law.”761 The Barents Sea boundary treaty was concluded in 2010 after four decades of negotiations between Norway and the Soviet Union, later Russia, discussed below. It is a negotiated boundary and the methodology used to calculate it is hard to discern, though it is consistent with being a modified equidistance line. The boundary runs from the coast at the terminus of the land boundary between the two countries, north between Norway's Svalbard Islands and Russia's Novaya Zemlya and Franz

Josef Land. No exact point at which the boundary terminates was provided in the agreement given that continental shelf limits have not been finally decided (see figure 2).762

759 Weber, 'Defining the Outer Limits', p 671. 760 It is notable that the delimitation area includes a small island, known as Hans Island, the ownership of which is disputed by Canada and Denmark. The maritime boundary divides all the waters right up to the low water mark of the island, so no maritime areas are engaged in the dispute. 761 Agreement between the United States of America and the Union of Soviet Socialist Republics, Article 2. 762 Norway has made a submission to the CLCS, which has been accepted, but Norway wishes to retain the option of making a further submission for the area north of Svalbard at a future date.

252 Figure 2: Arctic Ocean Maritime Boundaries and Disputes (used with permission of the International Boundaries Research Unit, Durham University, UK. Available at: http://www.durham.ac.uk/ibru/resources/arctic)

253 Arctic Claims and Disputes

Arctic Ocean maritime boundaries are incomplete. This situation does not necessarily equate to there being disputes in all areas where the neighbouring coastal states may have overlapping claims, and much less to the idea that the Arctic offshore is a lawless zone. As was explained above, legitimate maritime boundary disputes do not represent challenges to the norm of maritime territorial integrity. In fact boundary disputes reinforce it, if they are consistent with the law and equitable principles that underpinned the allocation of maritime space in the last century, by emphasising the inviolability of undisputed waters and the role of law and norms in the apportionment of offshore jurisdiction.

The Arctic has been home to four historic and current boundary disputes. Two are clearly argued within the context of international law, one was technical in character, while the fourth has featured some arguments that appear inconsistent with case law, but nevertheless uses the vocabulary of equitable apportionment of maritime space. Finally, the central Arctic Ocean is not the site of any maritime boundary disputes yet. So far, however, the parties are committed to abiding by the process of submitting data to the

CLCS as they determine the extent of their legitimate extended continental shelf jurisdiction, which is complicated by the Arctic Ocean ridges. It is likely that after this process is complete, a delimitation issue may arise if the ridges enable Canada, Russia and Denmark each to extend their jurisdiction into the central

Arctic Ocean. This may or may not lead to overlapping claims, like those that have been present in other parts of the Arctic Ocean, such as the Beaufort Sea.

The Beaufort Sea

Canada and the United States have a number of disputed maritime boundaries, including in the Dixon

Entrance off the Alaska and British Columbia border, in the Juan de Fuca Strait west of Vancouver Island and in the Beaufort Sea. Indeed, the two countries have only managed to delimit one of their shared maritime boundaries, seaward of the Gulf of Maine, and only after taking their dispute to the International Court of

Justice. However, all the disputes can be characterised as well-managed. Both sides have adhered to a de facto moratorium on oil and gas exploration and exploitation in the disputed area of the Beaufort Sea.

254 Figure 3: The Beaufort Sea Dispute (used with permission of the International Boundaries Research Unit, Durham University, UK).

The origins of the dispute go back to 1976, when the United States protested the line that Canada was using to demarcate areas for oil and gas exploration concessions. The following year, both countries used different lines to mark out the extent of their exclusive fishing zones out to 200 nautical miles (see figure 3). The dispute arises from a difference in interpretation of a treaty concluded in 1825 between

Britain, which was succeeded by Canada, and Russia, which was then in possession of the area that became the US state of Alaska. The Treaty established Alaska's border at “the “meridian line of the 141st degree, in its prolongation as far as the Frozen Ocean.”763 Canada interprets this provision to include the maritime

763 Great Britain/Russia: Limits of Their Respective Possessions on the North-West Coast of America and the Navigation of the Pacific Ocean, Great Britain-Russia, February 16, 1825, 75 Consolidated Treaty Series 95.

255 boundary, which continues straight north. The United States disagrees with this interpretation.

The American position is that the treaty established the land border only: a literal construction of the text, which is required as the first stage of treaty interpretation by the Vienna Convention on the Law of

Treaties, is that the boundary extends as far as the Frozen Ocean, not into the frozen ocean. As a consequence, normal methods of maritime boundary delimitation must be used beyond the low water line.

The US has argued that an equidistance line should be used to establish boundary between its jurisdiction and that of Canada. No special circumstances demand its adjustment, according to Washington. The equidistance line trends gradually further east of the Canadian-preferred meridian line in the Beaufort Sea, roughly to the edge of the exclusive economic zones of the two countries, before changing course and crossing back over the Canadian line because of the presence of Canada's Banks Island. What was once a simple wedge of disputed maritime area, amounting to some 6,250 square nautical miles, has thus potentially been converted into a much larger dispute, incorporating a further area of possible extended continental shelf. However, neither country has publicly expressed a position on the location of the line beyond 200 nautical miles, so it must not be assumed that they would use the same methodology to justify their claims beyond that distance as they do within it.

There have been a number of scholarly assessments of the two legal positions, which reinforce the notion that they could be supported by valid legal arguments. For its part, Canada might argue that the object and purpose of the 1825 treaty was to deal with maritime issues. In 1821, the Russian Tsar made a claim to exclude foreigners from the coast of northwest North America, up to a distance of 100 Italian miles. Great

Britain and Russia entered into negotiations to limit this claim. However, two authors have investigated the history of the negotiations and they could not find any evidence of an intention to delimit a maritime boundary.764 Moreover, the Russian claim referred to the North Pacific, not the Beaufort Sea.

Canada might also be able to argue that the United States acquiesced to its use of the 1825 Treaty line as it only protested Canadian oil and gas concessions several years after Ottawa began to issue them. 765

764 C.B. Bourne and D.M. McRae, 'Maritime Jurisdiction in the Dixon Entrance: The Alaska Boundary Re-Examined', Canadian Yearbook of International Law, 14:183 (1976). 765 See Ted L. McDorman, Salt Water Neighbors, p 184. It is worth noting that the United States protested the Arctic Waters Pollution Prevention Act, which sought to extend pollution control measures 100 miles off the coast of Arctic

256 Perhaps more compelling is a potential Canadian argument that, after a century-long acceptance of it as an agreement relating to maritime space, the United States used the 1867 Treaty to delimit its maritime boundary with the Soviet Union. Although it uses a slightly different formulation, the Treaty explicitly references the 1825 Treaty in doing so. Camille Antinori has observed that “the United States is virtually saying that the same treaty that delimits a maritime boundary in the west does not delimit a maritime boundary in the east.”766 Canada's position has also been bound up with its past reliance on the sector principle, though this would no longer seem to provide a compelling basis for its claim given that the sector theory would no longer appear to be favoured by Ottawa.

In support of its argument, it has been suggested that the United States could refer to the fact that, when the treaty was negotiated in 1825, national maritime jurisdiction only extended a few nautical miles offshore. On the basis of this logic, it simply could not have been the intention of the framers of the treaty to delimit a boundary between jurisdictions that did not exist.767 The United States could also point to a difference in the language between the 1825 Treaty and the one signed in 1867 that was agreed to delimit the maritime boundary in the Bering and Chukchi Seas. Whereas that treaty established a boundary “into the same Frozen Ocean,” the 1825 treaty only established a boundary “as far as the Frozen Ocean.” The latter formulation, it could be argued, was designed to delimit a maritime boundary while the former was concerned only with dividing territorial possessions on land.768 David Colson and Mark Feldman have further suggested that the terms of the 1867 Treaty, which transferred “territory and dominion” rather than simply

“possessions” as used in the 1825 Treaty, can be understood to apply to continental shelf rights.769

Regardless of the merits of the parties' arguments, the dispute is clearly circumscribed by legal arguments on both sides. Canada's position is that a Treaty has already delimited the maritime boundary,

Canada, but that they did not explicitly protest the use of the 1925 Treaty line for its demarcation. However, it may also be argued that they thought this additional detail unnecessary insofar as they protested the legislation in its entirety. 766 Camille M. Antinori, 'The Bering Sea: A Maritime Delimitation Dispute Between the United States and the Soviet Union', Ocean Development and International Law, 18:1 (1987), pp 1-47, p 34. 767 Michael Byers, Who Owns the Arctic, p 100. 768 See Karin L. Lawson, 'Delimiting Continental Shelf Boundaries in the Arctic: The United States-Canada Beaufort Sea Boundary', Virginia Journal of International Law, 22:1 (1981), pp 221-246, p 232. 769 Mark B. Feldman and David Colson, 'The Maritime Boundaries of the United States', The American Journal of International Law, 75:4 (1981), pp 729-763, p 751.

257 while the United States denies this argument and asserts that ordinary maritime boundary delimitation methods should apply to the Beaufort Sea area. The academic debate surrounding the dispute suggests that the positions on both sides are arguable within a legal framework. Of even greater practical importance is that the dispute has been well-managed and Canada and the United States have entered into talks regarding the boundary after an invitation to engage in discussions by the Canadian government. Despite the existence of a dispute, then, the behaviour of both sides in no way challenges the notion that legitimate maritime boundaries are inviolable. On the contrary, their behaviour suggests that both states consider international law to be the sole determinant of a legitimate dispute and agreed boundaries to be a useful solution to the potential for disorder.

The Lincoln Sea

The dispute between Canada and Denmark in the Lincoln Sea no longer actually exists because of a change in policy by Copenhagen and a tentative agreement between it and Ottawa. Regardless of its current status, it has nevertheless been the smallest of the Arctic Ocean maritime boundary disputes. When the dispute emerged, it related to a grand total of no more than about 65 nautical miles of maritime space north of

Greenland and Ellesmere Island and caused no discernible tension between the parties. The dispute emerged as a result of a disagreement over the drawing of straight baselines around Greenland by the Danish government and the effect these baselines had on the equidistance line Copenhagen declared as appropriate to mark the edge of its exclusive economic zone in the Lincoln Sea (see figure 4).

In 1973, Canada and Denmark delimited a maritime boundary that stopped at the mouth of the Nares

Strait. Four years later, Canada claimed an exclusive fisheries zone around its Arctic coastline that used the equidistance line with Greenland for its boundary in the Lincoln Sea. Denmark delineated straight baselines around the coast of Greenland three years later, arguing that it was deeply indented and cut into like the coast of Norway, which the ICJ had agreed could be simplified by drawing straight baselines in 1951. However, though it too used an equidistance line to define the boundary of its jurisdiction in the Lincoln Sea, Denmark did so taking into account the straight baselines. The use of straight baselines, rather than the low water line

258 to generate the equidistance line had the minor effect of pushing the line slightly westwards of the Canadian equidistance line in two places because of the baselines drawn from the small Beaumont Island. Two disputed areas of roughly 31 and 34 square nautical miles were created as a result.

Figure 4: The Lincoln Sea Dispute (used with permission of the International Boundaries Research Unit, Durham University, UK).

The dispute arose because Canada disagreed with the use of Beaumont Island as a basepoint for the drawing of straight baselines. Gray has described Canada's legal position as being based on the position of

Beaumont Island as somewhat west of the other islands in the fringe off Greenland's coast, thus rendering it not a part of that fringe. He also states that Canada protested the straight baselines as they did not follow the

259 trend of the coast, were overly long and did not cross the mouths of intervening fjords.770 The Canadian position, therefore, relied on a disputed interpretation of aspects of the Anglo-Norwegian Fisheries Case.

UNCLOS, which incorporates the outcome of this decision, does not include any criteria other than the relatively vague requirement that the coast be deeply indented and cut into, or fringed with islands, that the straight baselines follow the general direction of the coast and that the areas enclosed by the baselines are closely associated with the land domain. For its part, Denmark could easily point to the varying interpretations of what these provisions mean, as discussed in chapter one.

However, in 2004, Denmark modified its straight baselines around Greenland, including those which were drawn from Beaumont Island.771 The result has been that the difference between the Canadian and

Danish equidistance lines has all but disappeared. It became probable that the dispute no longer existed as

Canada did not publicly announced a position on the legality of the new baselines. Since then, the parties have reportedly reached a preliminary agreement on where to set a boundary. Regardless of the current status of the dispute, the positions of Ottawa and Copenhagen on the placement of the boundary between their maritime jurisdictions in the Lincoln Sea have both been justified in legal terms and represent a legitimate disagreement on the requirements of the law of the sea. Like the Beaufort Sea dispute, then, the Lincoln Sea dispute represented no challenge to the inviolability of maritime jurisdictions.

The Barents Sea

The Barents Sea is situated to the north of Norway and Russia. The maritime area is dominated by the northern coastline of mainland Norway and Russia's Kola peninsula, along with a number of islands – Franz

Josef Land and Novaya Zemla, which belong to Russia and the Svalbard Archipelago, which is under the

770 Gray, 'Canada's Unresolved Maritime Boundaries', p 65. 771 See 'Royal Decree on Amendment of Royal Decree on Delimitation of the Territorial Waters of Greenland, 15 October 2004,' in United Nations, Law of the Sea Bulletin 56, (New York: United Nations, 2005), p 126-133, available at: {http://www.un.org/Depts/los/doalos_publications/LOSBulletins/bulletinpdf/bulletin56e.pdf} accessed on 25 July 2013. The new base points are as follows: Cape Bryant 82°20’.234 N, 55°14’.984 W; Northernmost point of Beaumont Island 82°45’.346 N, 50°47’.051 W; Northernmost point of John Murray Island 82°50’.190 N, 49°03’.203 W; Cape Benét 82°59’.816 N, 47°16’.698 W; Cape Payer 83°05’.275 N 46°15’.167 W; Cape Ramsay 83°10’.915 N 44°53’.891 W. Cape Distant is no longer used as a base point. It is subsumed by the straight baseline connecting Cape Payer to Cape Ramsay.

260 sovereignty of Norway. Most of the Barents Sea is comprised of the EEZs of one or other of Norway and

Russia and the fisheries protection zone of Svalbard. Although Svalbard is under the sovereignty of Norway, it is regulated by a treaty, which gives rights to signatories to engage in fishing, hunting and mineral exploitation activities on the islands of the archipelago. The unique political status of Svalbard has complicated the legal issues surrounding the delimitation of the maritime boundary between it and Russia's

Arctic islands. There is also a small area of maritime space in the central Barents Sea in which the parties have continental shelf rights, but, because it is beyond 200 nautical miles from any coast, no EEZ rights.

The 1970s saw efforts to resolve the delimitation dispute relating to the continental shelf jurisdictions of each party. Later in the decade, both countries established EEZs, necessitating their delimitation also. The result was not a formal boundary, but, rather, an agreement relating to the disputed area in which both countries would regulate the fishing vessels flying their own flag. The dispute has, therefore, been well-managed, even in the context of Cold War tensions, but it was significant in spatial terms, covering some 175,000 square kilometres.772 The disputed area arose because Norway argued that a median line between the two countries' coasts and the islands belonging to them should be used to delimit the area, which otherwise lacks special circumstances necessitating its adjustment. The Soviet Union as it then was, on the other hand, argued that there were special circumstances and based its claim on a sector line originating at the territorial sea boundary in Varangerfjord and continuing towards the north pole. A central argument was that the Russian coast is longer than that of Norway, rendering a strict equidistance line inequitable. Churchill and Ulfstein have stated that it is possible to understand the ratio of the proportion of the respective coasts as being anything from 66:33 in Russia's favour, to 75:25. Given that the equidistance line delivers Norway roughly 40% of the maritime area, it is possible to justify a claim that the line is inequitable.773

The Soviet Union also based its maritime claim on a number of other factors, including geological, social and economic ones. Geological factors fell out of favour with international courts and tribunals and

772 Henrikson and Ulfstein, 'Maritime Delimitation', p 1. 773 Robin Churchill and Geir Ulfstein, Marine Management in Disputed Areas: The Case of the Barents Sea, (London: Routledge, 1992), p 72.

261 social and economic factors have never played a major role in maritime delimitation cases, which have favoured objective geographical circumstances. Security issues have only been treated as relevant in the immediate proximity of a country's coast, particularly within the territorial sea. It has also been judged by two leading legal scholars as inappropriate for the Soviet Union to have relied on the sector theory as a special circumstance in the drawing of a maritime boundary with Norway, especially as the latter has not acquiesced to the use of a sector line as the boundary.774 The sector theory also never achieved the status of a customary rule.775 Finally, the argument that Svalbard should not be given a full entitlement to maritime jurisdiction because of its special status has been dismissed by two other leading legal scholars.776

Consequently, it seems that the Soviet, and later Russian, claim in the Barents Sea certainly pushed the limits of legitimate legal argumentation. However, it can hardly be seen as a fundamental breach of either the norms underlying the allocation of maritime space in the twentieth century or of the norm that proscribes the alteration of maritime boundaries by force. Indeed, neither the USSR, nor its successor ever pursued their claim forcefully, and, although Moscow's position stretched the legal precedents, it was justified in equitable terms, which at least partly relied on coastal geography. Thus, although the Russian position is not wholly consistent with international case law, it is not wholly inconsistent with it either.

Most important is that the Barents Sea dispute is no longer active as the parties reached agreement on a maritime boundary in 2010. It is perhaps this outcome which is of more importance for judging the relevance of the dispute for the concept of maritime “territorial integrity”. Indeed, the parties were keen to emphasise the legal basis of the agreement they reached. The Norwegian Prime Minister said that the median line had been used as a point of departure, which is consistent with judicial practice, and then adjusted to account for Russia's longer coastlines.777 In September 2010, the Norwegians further emphasised that the agreement was “based on modern principles of international law.”778 Similarly, the Ministry of Foreign

Affairs in Moscow said that the provisions of the treaty “fully comply with the norms and principles of

774 Churchill and Ulfstein, Marine Management, p 75. 775 Churchill and Ulfstein, Marine Management, p 76. 776 Alex Oude Elferink and Donald R. Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation, (The Hague: Kluwer Law International, 2001), p 78. 777 Elferink and Rothwell, The Law of the Sea, p 6. 778 Elferink and Rothwell, The Law of the Sea.

262 international law.”779 International law, it seems, did indeed provide the prime basis for a legitimate maritime delimitation in this case. Of course, Norway might have been keen to emphasise the legal basis of the resolution to disguise the fact that Russia had arguably gained a greater share of the delimitation area than that to which it was entitled. However, even if this were the case, the result was not so distant from a delimitation based on relevant law as to make the invocation of legal principles as its basis absurd.

Consequently, even if Russia did push the boundaries of acceptable legal argumentation, its behaviour could hardly be classed as maritime territorial revisionism and a fundamental breach of Norway's entitlement to an equitable portion of offshore jurisdiction.

The Bering and Chukchi Seas

The Bering and Chukchi Seas lie south and north of the Bering Strait respectively, which is itself between the most westerly point of North America and the most easterly point of Asia. Russia and the United States have a common maritime boundary in this area and agreed to delimit it in 1977, when Russia was a part of the Soviet Union. The Soviet-USA boundary was agreed to follow the meridian line established by the 1867

Treaty of Cession of Alaska to the United States. The subsequent dispute arose because the United States and the Soviet Union used different methodologies for drawing the straight line as there is no standard method for the translation of a straight line onto a curved surface.780 The dispute was, consequently, technical in nature, though it did give rise to an area of overlapping claims amounting to some 15,000 square nautical miles. The parties agreed in 1990 simply to divide the disputed area in half and the episode can hardly be judged to represent any kind of challenge to the established maritime boundary, although the United States originally gained more from the use of the 1867 treaty line than it would have had an equidistance line been used.781 Though the Russian duma has yet to ratify the treaty, the parties have applied it as a de facto boundary for over twenty years.782

779 Elferink and Rothwell, The Law of the Sea. 780 The United States used a geodetic line and the USSR a rhumb line. See Alex Oude Elferink, 'The 1990 USSR-USA Maritime Boundary Agreement', International Journal of Estuarine and Coastal Law, 6:1 (1991), pp 41-52, p 43. 781 Elferink, 'The 1990 USSR-USA Maritime Boundary', p 44. 782 Elferink and Rothwell, The Law of the Sea, p 183

263 The Central Arctic Ocean

In 2001, Russia submitted data to the Commission on the Limits of the Continental Shelf. According to the map that accompanied the submission, Russia claimed that a large part of the Arctic Ocean seabed – amounting to some 1,191,000 square kilometers and extending right up to the North Pole – was part of its extended continental shelf. The Deputy Minister for Natural Resources of the Russian Federation summarized his country’s position in 2002, saying that the Lomonsov Ridge and the Alpha-Mendeleev

Ridges were composed of continental crust and, therefore, natural components of the continental margin.783 A sub-commission considered the submission and recommended that the Russian government provide more information as it was unable to determine the extent of the Russian continental margin on the basis of that which had been provided.

The United States objected to the Russian submission at the time, concluding that the Lomonosov

Ridge was a “free-standing feature in the deep, oceanic part of the Arctic Ocean Basin, and not a natural component of the continental margins of either Russia or any other State.”784 The US position was that all the

Arctic Ocean ridges were not continental in origin and that they could not, therefore, be used to extend the

Russian continental shelf. Denmark and Canada were less concerned about the character of the ridges than the possibility that they may also wish to lay claim to them for the purposes of extending their own continental shelf rights. For its part, Norway did not object to the submission, though it reserved its position regarding areas that it, too, might at a future date wish to claim jurisdiction over. A greater appreciation of the scientific data has apparently encouraged an evolution in the US view, and it now seems to consider the

Lomonosov Ridge to be continental in origin.785 This also appears to be the view of both Canada and

Denmark, which have both engaged in extensive mapping and data gathering relating to the area north of

783 Statement Made by the Deputy Minister for Natural Resources of the Russian Federation During Presentation of the Submission Made by the Russian Federation to the Commission on 28 March 2002. Quoted in Gorski, 'A Note', pp 53-54. 784 See 'Letter from the Permanent Representative of the United States of America to the United Nations', 28 February 2002, UN Doc. CLCS.01.2001.LOS/USA, available at: {http://www.un.org/depts/los/clcs_new/submissions_files/rus01/CLCS_01_2001_LOS__USAtext.pdf} accessed on 26 July 2013. 785 See H. Ruth Jackson, Trine Dahl-Jensen and the LORITA working group, 'Sedimentary and crustal structure from the Ellesmere Island and Greenland continental shelves onto the Lomonosov Ridge, Arctic Ocean', Geophysical Journal International, 182:1 (2010), pp 11-35.

264 Ellesmere Island and Greenland.786 Their scientists have openly reported that the Lomonosov Ridge is incorporated by a common foot of the slope envelope with the rest of the continental margin, which, if correct, might enable them to use the Lomonosov Ridge to extend their jurisdictions far into the central

Arctic Ocean.

Therefore, Canada and Denmark's position would seem to be that at least a portion of the

Lomonosov Ridge is a natural component of their shared continental margin, while Russia would seem to believe the same. This would appear to create the conditions for a dispute, but, in fact, if all the countries are correct it merely necessitates the agreement of a common boundary. No explicit official claims have yet been made as to where that boundary should lie, partly because it is impossible to say with absolute certainty whether the extended continental shelf entitlements of Russia, Canada and Denmark do overlap until after the Commission has considered submissions from all three countries. Should this be the Commission's view, a dispute may arise, or a relatively easy negotiation may ensue regarding where the boundary line should be set. For now, Russia, Canada and Denmark, in particular, have sought to head off any potential tension by mutually committing to abide by the rules laid out in the law of the sea convention and by agreeing to allow the Commission to decide which countries have jurisdiction over the ridge.

Conclusion

The depositing of a Russian flag on the seafloor at the North Pole in 2007 was widely – if incorrectly – interpreted as the opening move in a game of territorial competition in the Arctic offshore. Media, commentators and politicians alike have conflated land and sea in their descriptions of problematic offshore behaviour and the potential solutions to it, reinforcing the tendency to think about land and sea in similar terms, at least with regard to conflict and security. The media and expert commentary clearly established territorial competition as problematic and the solution was widely perceived to be some form of legal regulation. In particular, the drawing of clear maritime boundaries was seen as a solution to possible disorder, reinforcing the idea that conquest at sea has become unthinkable. In reality, the disputed boundaries

786 See Michael Byers, International Law and the Arctic, (Cambridge: Cambridge University Press, 2013), chapter 4.

265 that exist in the Arctic have tended to be justified in legal and equitable terms and, consequently, do not represent a challenge to the inviolability of legitimate offshore jurisdictions. Such disputes instead reinforce the inviolability of the undisputed waters beyond and are well-contained, hardly signalling a return to unregulated territorial competition. Although these disputes, like any other, have the potential to become violent, if they did, this would not by itself signal a return to the era of legitimate conquest. That the Arctic coastal states have, instead, responded to fears of conflict by negotiating and delimiting their boundaries strengthens the stability of the region. This perhaps represents a way in which thinking about territory reinforces the territorial integrity norm even in the absence of settled boundaries. Contemporary politics in the Arctic reinforce the standard that unrestrained territorial conflict is deviant and belongs in the past – both on land and at sea.

266 CHAPTER 8

THE SOUTH CHINA SEA

We do not take a position on competing territorial claims over land features and have no territorial ambitions in the South China Sea; however, we believe the nations of the region should work collaboratively and diplomatically to resolve disputes without coercion, without intimidation, without threats, and without the use of force.

- US State Department Spokesman

In contrast to the high Arctic, the South China sea has been a hive of activity for centuries. It is rich in fisheries and regularly traversed by ships carrying goods and commodities both to and from the busy ports in the region. The sea lines of communication are strategically important for countries such as Japan, which relies on them for imports of oil from the Middle East and they are a source of prosperity for all the trading nations of the region.787 Ten per cent of the global annual fisheries catch takes place in the South China Sea and it is, therefore, home to an important fishing industry for the littoral states.788 The seabed is likely also to be relatively rich in oil and gas deposits, though estimates vary as to how much is present.

It is difficult to come to an accurate prediction because political tensions have prevented serious exploration.789 Some commentators have described the South China Sea as a possible “second Persian

Gulf”.790 More informed analyses suggest that the hydrocarbon resource potential may be much more

787 Ted L. McDorman, 'The South China Sea Islands Dispute in the 1990s – A New Multilateral Process and Continuing Friction', The International Journal of Marine and Coastal Law, 8:2 (1993), pp 263- 285, p 264. 788 International Crisis Group, Stirring up the South China Sea (I): Asia Report No. 223, 23 April 2012, p 1, available at: {http://www.crisisgroup.org/en/regions/asia/north-east-asia/china/223-stirring-up-the-south-china-sea-i.aspx} accessed on 26 July 2013. 789 International Crisis Group, 'Stirring'. See also Mark John Valencia, Jon M. Van Dyke and Noel A. Exdwig, Sharing the Resources of the South China Sea, (Dordrecht: Kluwer Law International, 1997), pp 9-10. 790 See NIDS China Security Report Task Force 'NIDS China Security Report 2011', Report, National Institute for Defense Studies, February 2012, p. 21, available at: {http://www.nids.go.jp/english/publication/chinareport/pdf/china_report_EN_web_2011_A01.pdf} accessed 27 March 2013.

267 modest, however, because only a small portion of the available resources are recoverable.791 A good estimate might be that the area might contain between 1.4 and 5 billion barrels of oil and perhaps more substantial gas reserves.792 Though these levels would be insufficient to deal permanently with the energy security concerns of any country in the region, they would be a substantial addition to domestic supply. Regardless of the exact level of accessible resources, littoral states, and especially China, are eager to support their economic development and reduce their dependency on imported oil.793 Indeed, of the South China Sea littoral states, only Brunei is a serious net exporter of oil.794 Moreover, some states – notably China – at least perceive the area as possibly abundant in hydrocarbons.795

It is the possibility of a rich resource endowment that has driven political interest in the South China

Sea and a series of claims to offshore jurisdictions there. China is popularly reported to have claimed almost the entire South China Sea,796 which, on its face, would appear fundamentally to challenge the order established in UNCLOS in the late twentieth century. However, the South China Sea has been described as

“the most topographically complicated maritime area off China's coasts.”797 The Sea is punctuated by a series of islands and other features, the sovereignty of which is disputed. This introduces complexities into the legal status of the waters and seabed of the South China Sea and invites legitimate legal disputes. Moreover, it is not possible simply to say categorically that China has claimed the whole South China Sea. Arguably, it has opted for a strategy of deliberate ambiguity about what its claims in the South China Sea represent. The lack of clarity in Beijing's legal position suggests the norm proscribing conquest is influencing the dynamics of the South China Sea dispute. Beijing would appear to be being cautious by not overtly pressing a legally

791 See Nick Owen and Clive Schofield, 'Disputed South China Sea Hydrocarbons in Perspective', Marine Policy, 36:3 (2012), p. 809-822. 792 Total world consumption in 2010 was 31.7 billion barrels. Owen and Schofield, 'Disputed', p 815. 793 In 2011, the Chinese government announced that its dependence on imported oil was 55.2% and predicted that it would reach 60% of domestic demand by 2020. NIDS China Security Report Task Force 'NIDS China Security Report', p 5. 794 Owen and Schofield, 'Disputed', p 811. 795 Joshua P. Rowan, 'The U.S.-Japan Security Alliance, ASEAN, and the South China Sea Dispute', Asian Survey, 45:3 (2005), pp 414-436, p 417. 796 See, for example, 'Philippines to Host Meeting on South China Sea Disputes', Voice of America, 21 November 2012, available at {http://blogs.voanews.com/breaking-news/2012/11/21/philippines-to-host-meeting-on-south-china-sea- disputes/} accessed on 26 July 2013. 797 Greenfield, Jeanette, 'China and the Law of the Sea', in James Crawford and Donald Rothwell (eds.) The Law of the Sea in the Asian Pacific Region, (Dordrecht: Martinus Nijhoff Publishers, 1995) pp. 21-40, p. 20.

268 groundless claim. Finally, China has not used military force to unilaterally exploit the resources of the South

China Sea.

That said, China's policies in the South China Sea have caused serious unease in the region and beyond it. Overlapping claims to territory and maritime space have led one commentator to conclude that the disputes are “perhaps the main source of international tension in Southeast Asia with the end of the Cold

War.”798 It is precisely the lack of clarity in the Chinese position that has created tension. As with Russia's behaviour in the Arctic, there have been – similarly overplayed – suspicions that Beijing's policy-makers may harbour expansionist intentions.799 Many have analysed the disputes through a realist lens, pointing to the strategic vacuum left at the end of the Cold War, China's realpolitik policies and the balancing behaviour of the other claimants to the Sea.800 However, it is difficult to fully understand the reaction to the dispute without considering the prohibition relating to conquest. The South China Sea dispute has been politicised to an unparalleled degree both inside the region and beyond. Tellingly, it is China's claims that have caused the most concern. Though it is difficult to oppose China's claims while they remain unclear, states have, nevertheless, called for international law to be respected in the making of maritime claims and repeatedly urged the peaceful settlement of the dispute.

Perhaps more important is that the perception of the threat posed by China's rising power has

798 Gallagher, 'The Risk', p 133. cf. Yee, who suggests that the East China Sea dispute is a greater international security concern. Andy Yee, 'Maritime Territorial Disputes in East Asia: A Comparative Analysis of the South China Sea and the East China Sea', Journal of Current Chinese Affairs, 40:2 (2011), pp 165-193. 799 Valencia comments that some of the less sanguine observers of China's behaviour perceive it to be embarking on military modernisation to “allow it to assert control over the islands – and eventually the entire South China Sea and even South-east Asia.” Mark Valencia J., China and the South China Sea disputes: Adelphi Paper 298, (Oxford: Oxford University Press, 1995). Others fear that China is attempting to exert its control step-by-step and in a piecemeal fashion. John Garver, 'China’s Push Through the South China Sea: the Interaction of Bureaucratic and National Interests', The China Quarterly, 132 (1992), pp. 999-1028; Michael Gallagher, 'China's Illusory Threat to the South China Sea', in Brown, Michael E. Sean M. Lynn-Jones and Steven E. Miller (eds.), East Asian Security: An International Security Reader, (Boston: The MIT Press, 1998), pp159-187, p 136. Renato Cruz De Castro, 'The Risk of Applying Realpolitik in Resolving the South China Sea Dispute: Implications on Regional Security', Pacific Focus, 27:2 (2012), pp 262-289, p 275. 800 Christopher Joyner, 'The Spratly Islands Dispute: Rethinking the Interplay of Law, Diplomacy, and Geo-Politics in the South China Sea', International Journal of Marine and Coastal Law, 13:2 (1998) pp. 193-236, p 194. Wendy N. Duong, 'Following the Path of Oil: The Law of the Sea or Realpolitik – What Good Does Law do in the South China Sea Territorial Conflicts?' Fordham International Law Journal, 30:4 (2006), pp 1098-1207. Bennet states that the strategic vacuum left at the end of the Cold War could lead China to adopt a military solution to the issue of sovereignty and sovereign rights over the South China Sea and its islands. Michael Bennett, 'The People's Republic of China and the Use of International Law in the Spratly Islands Dispute', Stanford Journal of International Law, 28 (1991-1992), pp 425-450, p 450.

269 interacted with concerns about its territorial and maritime policies. In short, it is not just Chinese power that is of concern, but the ends to which it is put.801 Commentators and policy-makers have used China's South

China Sea policies as a litmus test for what kind of power China will be. These perspectives have blurred the distinction between land and sea, demonstrating concern about potentially illegal expansionism wherever it may take place. In short, understandings of, and legitimate behaviour relating to, the sea are not so different to the land as may be thought. It remains to be seen whether China will ultimately fundamentally challenge the norms constituting and regulating the contemporary maritime order. However, it appears that other states continue to subscribe strongly to them regardless of Beijing's orientation.

The Physical and Political Geography of the South China Sea

The South China Sea is a marginal sea of the Pacific Ocean, consisting of approximately 3.5 million square kilometres of maritime space. There are seven littoral states, including the People's Republic of China, the

Republic of China (Taiwan), the Philippines, Vietnam, Malaysia, Singapore, Brunei and Indonesia. The

South China Sea is a semi-enclosed sea in the terms of the Law of the Sea Convention, meaning it is comprised primarily of the territorial seas and EEZs of the coastal states. This status places a special requirement on the regional states to seek to cooperate in its management. The South China Sea may contain small areas of high seas and international seabed, but this outcome depends on the legal status of its islands.802

The sea is punctuated by a series of reefs, cays, sandbanks and islets that make up a series of distinct island groupings. The Pratas Islands are located in the Northeast of the South China Sea. The Paracel Islands along with Macclesfield Bank are located to the north of the South China Sea, south of Hainan and east of

Vietnam's coast. The Spratly Islands are widely dispersed to the south, covering an area of 240 nautical miles

801 Japanese power is increasingly contrasted with Chinese power in Asia, with the latter once having been a serious concern due to the legacy of World War II now being welcomed by regional states because of the threat perceived from China. See Martin Fackler, 'Japan is Flexing its Military Muscle to Counter a Rising China', New York Times, 26 November 2012, available at {http://www.nytimes.com/2012/11/27/world/asia/japan-expands-its-regional- military-role.html?pagewanted=all&_r=0} accessed on 26 July. 802 Jon M.Van Dyke and Mark J. Valencia, 'How Valid Are the South China Sea Claims Under the Law of the Sea Convention?' Southeast Asian Affairs, (2000), pp 47-63, p 58.

270 from east to west and 315 nautical miles from north to south.803 The Scarborough Shoal is to the east near to the Philippines' main island of Luzon. These features are universally small: the largest (Itu Aba) is a mere

400 metres wide and 1,400 metres long.804 Only 48 features among the Spratlys group are thought to rise above water at high tide, perhaps fewer.805 Sovereignty over all these features is disputed by one or more of the coastal states, making the South China Sea dispute a mixed territorial and maritime dispute.

The People's Republic of China claims all the islands and features in the Spratly and Paracel groups, as well as the Pratas Islands, Macclesfield Bank and the Scarborough Shoal. Taiwan's claim overlaps with that of the PRC. Vietnam also claims all the Paracel and Spratly Islands, while Malaysia claims some of the latter group. The Philippines claims a different proportion of the Spartly Islands as well as the Scarborough

Shoal. Brunei's position is unclear, but it may claim small features within its EEZ. The island dispute is bound up with the disputed maritime boundaries of the region as it is presently unclear which features may generate territorial seas, EEZs and extended continental shelves. Currently, no maritime boundaries have been established in the central portions of the South China Sea. However, China and Vietnam have delimited a maritime boundary in the Gulf of Tonkin by a treaty signed in 2000 and Indonesia has agreed its maritime boundaries in the southern portion of the South China Sea. Until the ownership of the islands is made clear, the delimitation of maritime boundaries is likely to remain complicated.

The Spratly Islands Dispute

Sovereignty over land, unlike at sea, may be acquired by discovery, which generates an inchoate title that must then be perfected by effective occupation. These principles were outlined in the Clipperton and Isle of

Palmas Arbitrations, which suggested that effective occupation need not be so extensive for small or inhospitable locations.806 Nevertheless, states must show that the territory is at their “absolute and undisputed disposition.” In the Land, Island and Maritime Frontier Dispute between El Salvador, Honduras and

803 For a description of the area covered, see McDorman, 'The South China Sea Islands', p 267. 804 For the sizes of some of the other islands, see Van Dyke and Valencia, 'How Valid', p 51. 805 Owen and Schofield, 'Disputed', p 809. Although Van Dyke and Valencia estimate the figure to be between 25 and 30. Van Dyke and Valencia, 'How Valid', p 51. 806 See Bennett, 'The People's Republic', p 436.

271 Nicaragua, the ICJ stated that exercise of authority and acquiescence by other states were the key measures of ownership of territory.807 The Spratly Islands are the most relevant to the generation of maritime claims and the delimitation of maritime boundaries in the South China Sea and will, therefore, be the focus of this section. All claimants to the Spratlys make some kind of effective occupation claim, although these are frequently combined with other principles.

The PRC claim is based on its history of discovery and contact with the islands. Analysts have pointed to a number of references to the South China Sea islands in historical Chinese literature and it has also been pointed out that Chinese authorities made several visits to the islands throughout the period before western intrusion into Asia.808 It is relatively well established that China did have the earliest contact with the islands.809 However, Valencia et. al. point to the difficulties inherent in the historical claims of China relying on activities in a period in which western international legal principles had not extended to Asia. At that time,

China considered itself the centre of a universal state, which dominated Vietnam.810 Indeed, China's historical understanding of law was markedly different to that in the west.811 This at the very least complicates the

Chinese legal position regarding the distant past of its claims to the islands.

China further claims that military weakness and internal upheavals prevented it from materially enforcing its claims during the colonial period, though it says it continued to protest the actions of other states during this period.812 Although Japan occupied some of the islands during World War II, it renounced any claim over them in the treaty of peace signed in 1951. That said, the treaty did not explicitly assign the islands to any country, though China claims ownership reverted to it as a consequence. More recently, China

807 Land, Island and Maritime Frontier Dispute (El Sal. v. Hond: Nicar. intervening), 1990 I.C.J. 146 (Order of Sept. 14). 808 Teh-Kuang Chang, 'China's Claim of Sovereignty Over Spratly and Paracel Islands: A Historical and Legal Perspective', Case Western Reserve Journal of International Law 23:3 (1991), pp 399-420. 809 Greenfield, Jeanette, 'China and the Law of the Sea', in James Crawford and Donald Rothwell (eds.) The Law of the Sea in the Asian Pacific Region, (Dordrecht: Martinus Nijhoff Publishers, 1995) pp. 21-40, p 32. 810 Valencia et. al., Sharing, p 20. 811 See Greenfield, Jeanette, China's Practice in the Law of the Sea, (Oxford: Clarendon Press, 1992), chapter 1. 812 For example, as Beckman and Davenport point out, China protested the French attempt to claim sovereignty over the islands in the 1930s. Robert C. Beckman and Tara Davenport, 'CLCS Submissions and Claims in the South China Sea', Paper presented at The Second International Workshop: The South China Sea: Cooperation for Regional Security and Development, 10-12 November 2010, Ho Chi Minh City, Viet Nam, p 4, available at: {http://southchinaseastudies.org/en/conferences-and-seminars-/second-international-workshop/608-clcs- submissions-and-claims-in-the-south-china-sea-by-robert-c-beckman-a-tara-davenport} accessed on 26 July 2013.

272 has consistently protested the assertions of authority by the other claimants in the area. 813 The Taiwanese claim draws on the same historical arguments to those of the PRC.

Until the 1970s, China's legal position was undermined because it did not actually occupy any of the features it claimed. Much worse, those features were, in some cases, occupied by foreign powers. In the case of the Paracel Islands, this position changed in 1974, when Chinese forces ejected Vietnamese troops from the islands in a brief battle that resulted in seventy deaths. China occupied further islands in 1988, when it engaged in a militarised incident with Vietnam in Johnson South Reef. This action took place amid a competitive scramble with Vietnam to occupy the islands and so cannot simply be judged a Chinese unilateral act. China also managed to erect military installations on Mischief Reef in 1995 without Filipino knowledge, despite the reef being within the Philippines' EEZ.

These tactics have caused some to suggest that China is attempting to take over the South China Sea islands in a piecemeal fashion, so as not to cause a major international incident. 814 De Castro concludes that this demonstrates China's realpolitik tactics, but Fravel suggests China has been fairly restrained in its policies in the South China Sea.815 For its part, Taiwan has taken a more cooperative approach. Its South

China Sea Policy Guidelines, which were published in 1993, reiterated Taiwan's island claims, but spoke of the need to oppose provocative moves that could trigger conflict in the region. 816 A central plank of the proposed Code of Conduct for the South China Sea would prevent the enlargement of any claim or the occupation of more features. China has been equivocal about the benefits of such a Code, reinforcing concerns about its intentions towards the South China Sea islands, but it has been vociferously supported by

South East Asian claimant states.

Vietnam makes similar claims to the discovery of the islands of the South China Sea and it also claims that it succeeded to the title claimed by France after decolonization.817 According to Hanoi, King Le

813 Valencia et. al., Sharing, p 21. 814 See, for example, Ian Storey, 'China's Missteps in Southeast Asia: Less Charm, More Offensive', China Brief, 10:25 (2010), pp 4-6. 815 De Castro, 'The Risk', p 267 816 For more detail, see Rowan, 'The US-Japan Security Alliance', p 424. 817 Rowan, 'The US-Japan Security Alliance', p 425.

273 Thanh Tong claimed sovereignty over the islands in his reign at the end of the 15th century.818 Moreover,

Vietnamese administration and effective occupation, it claims, has existed continuously since the 17 th century.819 Vietnam also occupied several features in advance of any similar occupations by China and it currently occupies 21 islands and islets, including Spratly Island itself.820

The Philippines claims only a group of the Spratly Islands, which it terms the Kalayaan Island

Group. The Philippines' claim is based on discovery and occupation of some of the features by one of its citizens, Tomas Cloma. Cloma travelled to the islands in 1956 and claimed the islands, naming them

“Freedomland”. It was not until 1971 that the Filipino Government took on Cloma's claim on the basis that the islands were res nullius. The Philippines makes a further argument that the islands are under its sovereignty based on their proximity and relationship to the country's continental shelf.821 Malaysia makes a similar claim based on the presence of some of the features of the South China Sea on its continental shelf and an additional claim based on effective occupation and control.822 Malaysia occupies all but three of the features it claims, which are presently occupied by the Philippines or Vietnam.823 Though it is unclear, Brunei may make a claim to Louisa Reef and Rifleman Bank.824

Assessment

All the territorial claims to the Spratly Islands contain weaknesses. Regardless of their claims to historic discovery of them, China and Vietnam cannot demonstrate continuous effective occupation of the features. 825

Additionally, for other claimants, the doctrine of continental shelf jurisdiction provides no grounds for claiming permanently emerged islands, as the continental shelf is a submerged feature, although it does,

818 Rowan, 'The US-Japan Security Alliance', p 425. 819 Beckman and Davenport, 'CLCS Submissions', p 6. 820 Robert C. Beckman, 'China UNCLOS and the South China Sea', Paper presented at the Asian Society of International Law, Third Biennial Conference, Beijing, China, 27-28 August 2011, available at{http://cil.nus.edu.sg/wp/wp-content/uploads/2009/09/AsianSIL-Beckman-China-UNCLOS-and-the-South-China- Sea-26-July-2011.pdf} accessed on 26 July 2013. 821 Valencia et. al., Sharing, p 33. 822 Valencia et. al., Sharing, p 36. 823 Beckman and Davenport, 'CLCS Submissions', p 13. For a list of those claimed, see Rowan, 'The US-Japan Security Alliance', p 420. 824 See Joyner, 'The Spratly Islands Dispute', p 203. 825 Valencia et. al., Sharing, p 23; Joyner, 'The Spratly Islands Dispute', p 199.

274 consequently, provide grounds for claiming features that are beneath the sea.826 Conversely, the law does not permit sovereignty claims to features that are not at least above the water at low tide. Finally, the claims and occupations of the more recent claimants are undermined by the protests they have drawn. In short, the argument that the Spratly Islands were res nullius after the Second World War is hard to sustain. The actions of Tomas Cloma would, therefore, appear to be insufficient to generate a claim for the Philippines.827

One author has concluded that “any further debate on which of these claimants has the better historic title will always be inconclusive and therefore futile.”828 Valencia et. al. assert similarly that “all claims to sovereignty over the features are weak.”829 With ownership of the islands so unclear, it has been argued that an international court or tribunal might simply divide them between the claimants based on some principle of equity,830 but the claimants would first have to assent to dispute settlement. Alternatively, the occupations that have taken place may ripen into enforceable sovereignty claims. Although the dispute has crystallised, meaning that no actions can be taken to improve the legal position of any one of the claimants, the disputing parties have all attempted to defend their claims.

Some of these actions have even been forceful and one authoritative study cites the following list of efforts by the claimant states:

Using military force, 'showing the flag,' occupying and fortifying islets, building up features, establishing structures and markers on islands, establishing scientific research stations, enacting laws, incorporating the area into nearby provinces, publicizing maps showing claims, releasing historical documents to substantiate claims, allowing tourists and journalists to visit 'their' islands, and granting concessions to oil companies.831

All of these actions are designed to demonstrate effective administration of the islands and, therefore,

826 Additionally, the Palawan trough interrupts the natural prolongation of Filipino territory under the sea, which would make its continental shelf-based claim hard to sustain, even if it were accepted by other states. Valencia et. al., Sharing, p 35. 827 That Cloma was a private citizen at the time of his 'discovery' also renders any legal claim based on his actions by the Philippines suspect. 828 Gerardo M.C. Valero, 'Spratly Archipelago Dispute: Is the Question of Sovereignty Still Relevant', Marine Policy. 18:4 (1994), pp 314-344, p 325. 829 Valencia et. al., Sharing, p 39. Greenfield also suggests that it would “be difficult to decide between competing states on the existing criteria.” Greenfield, 'China and the Law of the Sea', p 29 and Bennett doubts that Chinese contacts with the islands are sufficient to prove sovereignty. Bennett, 'The People's Republic', p 435. 830 Van Dyke and Valencia, 'How Valid', p 50. 831 Valencia et. al., Sharing, p 9. For an outline of some of the territorial and maritime moves in the early 1990s, see McDorman, 'The South China Sea Islands', p 277.

275 ordinarily have legal implications. Indeed, that the claimants have undertaken, albeit futile, policies designed to bolster legal claims to the features demonstrates clearly how important states consider legal ownership arguments to be in situations in which they dispute territory. To be sure, that the status of the islands is unclear in law led Mark Zacher to conclude that even the forceful actions and territorial redistributions that have taken place could not be considered a breach of the territorial integrity norm.

That said, the territorial dispute has been part of the impetus for major regional and international concern. It has been concluded that the result of the disputing parties' actions “has been an impressive zigzag of occupied islets and low-level military confrontation with the always present possibility of miscalculation or mistake leading to explosion.”832 Consequently, there have been several high level efforts to engage the disputing parties, and repeated calls for calm, but so far the territorial dispute remains unresolved. A further implication of it is that it makes determining where the maritime boundaries with neighbouring littoral states should be set nearly impossible. The South China Sea is, therefore, the site of numerous overlapping claims to offshore jurisdiction in addition to the territorial dispute over the islands (see figure 5).

832 McDorman, 'The South China Sea Islands', p 270.

276 Figure 5: Map of the South China Sea Maritime Claims (used with permission of its creator, Andi Arsana, Dept. Geodetic and Geomatic Engineering, Gadjah Mada University, Indonesia and Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, Australia).

Vietnam and Malaysia's Maritime Claims

The maritime claims of Vietnam and Malaysia may be considered together because, despite their significantly different territorial claims, they have cooperated in establishing their positions relating to the continental shelf in the South China Sea. On 6 May 2009, Malaysia and Vietnam jointly submitted data to the Commission on the Limits of the Continental Shelf. Joint submissions are ordinarily a useful way to

277 internalise any disputes within the submission, as the CLCS cannot consider any data relating to an area of overlapping claims if an affected state objects to it so doing.833 Perhaps more importantly in this case, a joint submission also sent a message of unity to other disputants – particularly China.

Malaysia's position regarding the status of the islands it claims has changed little from before the submission. Kuala Lumpur produced a map of its continental shelf claim in 1979. This map did not appear to include any continental shelf areas drawn from the features over which it purported to exercise sovereignty in the South China Sea. Nor did legislation implementing an Exclusive Economic Zone indicate that it would be claimed from the features.834 On the other hand, prior to 2009, Vietnam had not delineated a continental shelf or EEZ from the Spratly Islands, although it had apparently signalled its intention to claim full maritime zones from the Spratly and Paracel Islands when it ratified UNCLOS in 1994.835 Its Statement on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf established a 200 nautical mile EEZ from the baselines used to measure its territorial sea. The Statement confirmed

Vietnam's position that all islands and archipelagos forming part of Vietnamese territory beyond its territorial sea were entitled to territorial seas, contiguous zones and continental shelves. 836 The joint submission, however, would appear to indicate that Vietnam's position has shifted.

It seems Vietnam no longer considers the islands to be entitled to full maritime zones. The area in question in its joint submission with Malaysia was beyond the 200 nautical mile limits of the territorial sea baselines of the two countries, determined using their mainland coasts. Malaysia and Vietnam have also delineated the outer limits of their exclusive economic zones, publishing and circulating their coordinates.

No EEZ was claimed from the features of the South China Sea, which suggests that they do not consider the

South China Sea islands to be entitled to maritime zones beyond the territorial sea. 837 Vietnam also made a

833 See Commission on the Limits of the Continental Shelf, 'Scientific and Technical Guidelines'. 834 Beckman and Davenport, 'CLCS Submissions', p 14. 835 Beckman and Davenport, 'CLCS Submissions', p 9. 836 Beckman and Davenport, 'CLCS Submissions', p 8. 837 Davenport, Tara, Ian Townsend-Gault, Robert Beckman, Clive Schofield, David Ong, Vasco Becker-Weinberg and Leonardo Bernard, 'Conference Report', Conference on Joint Development and the South China Sea, Grand Copthorne Hotel, Singapore, 16-17 June 2011, p 10. available at :{http://cil.nus.edu.sg/programmes-and- activities/past-events/international-conference-international-conference-on-joint-development-and-the-south-china- sea/} accessed on 26 July 2013.

278 further independent submission regarding the area north of the joint submission area, which drew a protest from China, as did the joint submission. The Philippines also protested the joint submission,838 asking the

Commission not to consider it.

The Philippines' Maritime Claims

Formerly, the Philippines had made excessive claims to maritime sovereignty predicated on the so-called

“Treaty Limits” – an area defined in the Treaty of Paris of 1898 839 within which Manila claimed to exercise exclusive sovereignty. This position was enshrined in its constitution and, consequently, became politically difficult to change. The Philippines had previously also made what has been widely understood to be an excessive claim to archipelagic baselines using submerged and partially submerged features. The waters within the baselines were claimed as internal waters in contravention of UNCLOS provisions, and were widely protested.840 The Archipelagic Baselines Act passed by the Philippines in 2009 is, however, now seemingly more consistent with international law. In the opinion of Nguyen-Dang and Nguyen, the excessive claim has been withdrawn, clarifying that states cannot have sovereignty over submerged and semi- submerged features beyond its territorial sea.841

The Philippines has also improved the clarity of its claims in relationship to the Spratly Islands and

Scarborough Shoal. Though the 1956 Presidential Directive establishing control over the Kalyaan Islands suggested the Philippines would claim a continental shelf from them, it has been argued that the Philippines' continental shelf data submitted to the CLCS relates to its mainland coast only.842 Another Presidential

Directive established an Exclusive Economic Zone around Filipino territory, which may or may not apply to

838 The Philippines objection was based on its claims to the South China Sea islands, but also to its claim to part of northern Borneo, the Malaysian State of Sabah. 839 This treaty ceded control of the Philippines and other territories from Spain to the United States. 840 Beckman and Davenport, 'CLCS Submissions', p 11. The USA, USSR and Australia also all protested the claim relating to the treaty limits. See Beckman and Davenport, 'CLCS Submissions', p 30. 841 Nguyen-Dang Thang and Nguyen Hong Thao, 'China's Nine Dotted Lines in the South China Sea: The 2011 Exchange of Diplomatic Notes Between the Philippines and China', Ocean Development and International Law, 43:1 (2012), pp 35-56. 842 Nguyen-Dang and Nguyen 'China's Nine Dotted Lines'. Although Dutton points out that the Philippines' continental shelf legislation is out of date, referencing the 1958 Continental Shelf Convention exploitability criterion. Peter Dutton, 'Three Disputes and Three Objectives: China and the South China Sea', Naval War College Review, 54:4 (2011), pp 42-67, p 52.

279 the KIG as there have been no charts published by Manila.843 However, the Archipelagic Baselines Act states that the Philippines necessarily exercises sovereignty and jurisdiction over the waters around or adjacent to each relevant geological feature in the KIG as provided for under the law of the sea convention. Nguyen-

Dang and Nguyen conclude that the reference to “relevant” geological features suggests the Philippines accepts not all of the Spratly Islands are entitled to all the maritime zones, as some may be classified as rocks which cannot sustain human habitation or an economic life of their own.844

Assessment

Though the record of the South East Asian claimants has not been perfect, and difficulties remain, the recent moves by the Philippines, Malaysia and Vietnam have helped to clarify their claims in the South China Sea.

Moreover, the excessive claims of some of them have been brought further into conformity with the Law of the Sea Convention. It seems that these policies have been part of a deliberate strategy among the South East

Asian claimants to improve their legal compliance in order to isolate China and imply that its assumed claims are excessive.845 As will be discussed further below, there has also been an active campaign within

ASEAN to undermine China's claims that it is a good international citizen.846 All the Southeast Asian states have also sought to enlist international support against China and what they perceive to be its excessive claims.

People's Republic of China and Republic of China (Taiwan)

The main controversy relating to the maritime space of the South China Sea has been the apparent policies of the People's Republic of China. China claimed a 12 nautical mile territorial sea around the Spratly Islands in its 1992 Law on the Territorial Sea and Contiguous Zone, but it has yet to delineate an EEZ or a continental shelf from the islands.847 However, curiously, China long ago deployed a map that does depict a claim of

843 Beckman and Davenport, 'CLCS Submissions', p 12. 844 See also Beckman and Davenport, 'CLCS Submissions', p 16. 845 Michael D. Swaine and M. Taylor Fravel, 'China's Assertive Behavior – Part Two: The Maritime Periphery', China Leadership Monitor, 35 (2011), pp 1-29, p 7. 846 See International Crisis Groups, 'Stirring Up The South China Sea', p 31. 847 Beckman and Davenport, 'CLCS Submissions', p 5.

280 some description. The map consists of nine discontinuous lines in a U-shape that enclose the overwhelming majority of the South China Sea. The U-shaped or nine-dashed line apparently first emerged on a map in

December 1914, which did not include all the features of the South China Sea. The first official publication of a full map including the U-shaped line was in 1947, in the Atlas of Administrative Areas of the Republic of China.848

Importantly, the claim has been widely and popularly interpreted as amounting to a territorial claim to the whole, or almost the whole, of the South China Sea by China. The map, therefore, suggests China seeks to expand its jurisdiction without reference to the law of the sea convention, potentially claiming excessive maritime rights. The claim has been a widespread source of political, media and public attention and concern. However, the map has also been a source of academic debate in the years subsequent to its publication: the consensus appears to be that the map is decidedly ambiguous as to what it actually represents and Beijing's claims have been unclear.849 First, it is not clear whether the map simply illustrates a claim, or whether it is intended as evidence of a claim. In terms of what that claim represents, there are several possibilities, each with different implications for China's compliance with the law of the sea property rights order. It may amount to a claim to sovereignty or sovereign rights over the majority of the South China

Sea regardless of its relationship to the islands; it could be a proposed maritime boundary between the jurisdictions of neighbouring states and zones included in UNCLOS that China claims emanate from the islands; or it might be a claim to the island territories within the line only.

A Historic Waters/Rights Claim?

Some authors have suggested that China makes a historic waters claim in the South China Sea based on the nine-dashed line, which would seem to be legally problematic. However, as noted above, historic waters are only a sub-category of a broader principle of historic rights that exists in international law. Some analysts

848 Zou Keyuan, 'China's U-Shaped Line in the South China Sea Revisited', Ocean Development and International Law, 43:18 (2012), pp 18-34, p 19. 849 Taiwan's claim mostly mirrors that of the PRC, but it has been notably assertive in the past in its interpretation of the u-shaped line.

281 have argued that China's policy is merely to claim historic rights, rather than historic waters.850 Scholars have disagreed about whether China's nine-dashed line could represent a valid claim to historic rights, either in doctrinal terms, or in terms of the evidence available to make it out.

The scarcity of case law and precedent makes the rules unclear and some authors conclude that

UNCLOS extinguished, or severely limited the relevance of, pre-existing historic rights in the South China

Sea. For example, Beckman says that “there are... no residual historic rights in UNCLOS that China could rely upon” in making a claim to historic rights to the resources within the nine dashed line. 851 However, as discussed above, it is arguable that historic rights to resources in waters beyond the territorial sea do have a foundation in international law. Others, therefore, suggest that a balance needs to be struck between historic rights and contemporary maritime zones.852 For his part, Zou has concluded that the uncertainties in the law relevant to historic rights means China's claim is not a violation of international law, but that it would be difficult for China to make the claim in legal terms as well. 853 However, as also discussed above, it would certainly appear to be clear that China could not make a valid claim to historic rights relating to the resources on the geological continental shelves of the South China Sea's other littoral states as those rights are inherent to the coastal state.

Regardless of the legality or illegality of historic rights in the abstract, it has been doubted whether

China can legitimately make such a claim on the basis of the evidence available to it. One author has tested the possible historic waters claims of China and Taiwan against the criteria outlined in a United Nations study for establishing historic waters. He concludes that, if the nine-dashed line map represents such a claim, it does not pass the relevant legal tests.854 Moreover, Dutton argues that the South China Sea, far from being

850 Zhiguo Gao and Bing Bing Jia, 'The Nine-Dash Line in the South China Sea: History, Status, and Implications', The American Journal of International Law, 107:1 (2013), pp 98-123; Zou, Keyuan, 'China's U-Shaped Line in the South China Sea Revisited', Ocean Development and International Law, 43:18 (2012), pp 18-34. 851 Robert Beckman, 'The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea', The American Journal of International Law, 107:1 (2013), pp 142-163, p 158, Dupuy and Dupuy, 'A Legal Analysis', p 137. 852 Gao and Jia, 'The Nine-Dash Line'. 853 Keyuan Zou, Law of the Sea in East Asia: Issues and Prospects, (Oxford: Routledge, 2005), p 163. 854 Masahiro Miyoshi, 'China's 'U-Shaped Line' Claim in the South China Sea: Any Validity Under International Law', Ocean Development and International Law, 43:1 (2012), pp 1-17, p 6-8.

282 the exclusive preserve of one state, has been a regional commons for centuries. 855 For their part, Dupuy and

Dupuy conclude that China's historic claims are not even “minimally persuasive.”856

Though a claim to historic rights rather than historic waters would require considerably less than exclusive control of the South China Sea, it would still require a public claim to the resources. This claim would have to be followed by demonstrated control of the resources to which the historic rights purport to relate. Robert Beckman has stated that the nine-dashed line map was not published with any declaration that it constituted a claim to maritime space. He continues:

Absent any contemporaneous law, declaration, or formal statement that the map was intended by the successive Chinese governments to do anything other than depict the location of the islands claimed in the South China Sea, it is difficult to see how China can now assert it has rights to, and jurisdiction over, the natural resources in and under all the waters inside the nine-dash line.857

Thus, depending on the resources to which a historic rights claim relates, the expansive nature of China's nine-dashed line claim could be problematic in doctrinal terms. However, the nine-dashed line claim is arguably even more problematic in terms of its ability to prove, much less constitute, the level of authority necessary to make out a historic claim in the South China Sea.

A Maritime Boundary Claim?

If the nine-dashed line is a maritime boundary claim, as some commentators suggest, it would appear to be based on the notion that all the islands of the South China Sea, and particularly the Spratly Islands, are entitled to a full suite of maritime zones. Consequently, they would not be included within the law of the sea convention exception for rocks which cannot sustain human habitation or an economic life of their own.

There is no commonly-accepted definition of the Spratly Islands, but there are over 100 features in the South

China Sea that are generally considered to be a part of the archipelago. 858 Many of the islands are microscopic in size and some features are submerged at high tide or permanently so. Indeed, Valencia et. al.

855 Dutton, 'Three Disputes', p 46. 856 Dupuy and Dupuy, 'A Legal Analysis', p 141. 857 Beckman, 'The UN Convention', p 154. 858 Greenfield estimates there are a total of 127 uninhabited islets, shoals, coral reefs, banks, sands cays and rocks. Greenfield, 'China', p 26

283 estimate that 25 to 35 features are above water at high tide, Bennett estimates 20 859 and another analysis puts the figure at 48.860 For its part, a US Government map marks only 14 features as islands. 861 Moreover, according to one analysis, only ten of the islands sustain trees naturally – a condition thought by some to be important for demonstrating their ability to support human habitation.862

There are some islands, on the other hand, that are relatively significant. Taiwan occupies the largest of the islands – Itu Aba, which even possesses a supply of fresh water. Indeed, several of the islands have populations. However, most of the islands are occupied solely by military personnel and a number have been artificially augmented, presumably in an effort to make them more legitimate landmasses from which to claim maritime zones. This effort would, however, be insufficient to bring them within the definition of an island in the law of the sea Convention if they were not already islands before the artificial augmentation.

Nevertheless, it is generally thought that a proportion of the islands may legitimately be entitled to maritime zones.

Gjetnes comments there “can be no doubt some of the Spratlys are islands”863 but concludes that they would only be entitled to territorial seas as they cannot sustain human habitation or an economic life of their own.864 Beckman, on the other hand, suggests that at least some of the islands would be able to fulfil the criteria necessary to be entitled to an EEZ and continental shelf. He points out that some of the larger islands have vegetation and, even if they do not have a water supply, could support human habitation. 865 Davenport et. al. conclude that the islands remain mysterious, and that descriptions of them that do exist are out of date and often contradictory.866 It is more certain, though, that there would not be a sufficient number of these features to generate a claim based on UNCLOS as expansive as China's U-shaped line. 859 Valencia et. al., Sharing, p 429. 860 Valencia et. al., Sharing, p 5 861 See Beckman, 'The UN Convention', p 9. 862 Valencia et. al., Sharing, p 43. 863 Gjetnes, 'The Spratlys', p 199 864 Valencia et. al. agree. See also Van Dyke et. al., Sharing, p 52. 865 Beckman, 'China, UNCLOS', p 9. Valencia et. al. point to other studies that conclude the islands could generate extended maritime zones. Valencia et. al., Sharing, p 44. 866 Tara Davenport, Ian Townsend-Gault, Robert Beckman, Clive Schofield, David Ong, Vasco Becker-Weinberg and Leonardo Bernard, 'Conference Report', Conference on Joint Development and the South China Sea, Grand Copthorne Hotel, Singapore, 16-17 June 2011, p 35, available at :{http://cil.nus.edu.sg/programmes-and- activities/past-events/international-conference-international-conference-on-joint-development-and-the-south-china- sea/} accessed on 26 July 2013.

284 Nevertheless, a number of Chinese scholars have examined the proposition that the nine-dashed line is the equidistance line between the outermost of the Spratly Islands and the mainland coasts of surrounding the South China Sea. Nguyen-Dang and Nguyen conclude that the line does not coincide with one drawn on the basis of equidistance.867 Added to this, the case law on maritime boundaries has evolved so as to accord less weight, or no weight at all to small islands that are distant from the mainland coast of a state, such as in the case of the Channel Islands and the Isles of Scilly. Finally, the line is imprecise and does not include coordinates, making it a problematic boundary claim.868 In short, then, the nine-dashed line would not be a compelling maritime boundary claim based on the case law discussed in chapter six.

That said, it is common for states to take a relatively liberal interpretation of the law in making maritime boundary claims, in the expectation that their neighbours will do the same. In other words, states frequently seek to improve their bargaining positions by pushing the limits of the law as much as they can. In the Gulf of Maine, for example, Canada revised its claimed line in in order to improve its bargaining position with the US. In the Arctic, Russia made a claim in the Barents Sea based partially on factors that had been undermined in case law. As discussed in chapter six, maritime boundary law and Article 121 of UNCLOS practically encourage such expansive claims. Thus, a maritime boundary claim based on the nine-dashed line would certainly be excessive. However, the presence of the South China Sea islands, combined with legal uncertainty relating to Article 121, make it appear less excessive than would be the case if China had claimed

80 per cent of a comparable maritime area which did not contain islands. Finally, a maritime boundary claim would, in principle at least, be negotiable.

A Claim to the Islands?

In principle, there would be nothing improper about an interpretation of the nine-dashed line map as a territorial claim relating to the islands of the South China Sea. It has not been uncommon for states to produce maps that outline claims to islands by enclosing them within a line. Such lines are not designed to influence the legal status of the waters at all. In fact, as discussed in the previous chapter, notably, Canada 867 Nguyen-Dang and Nguyen, 'China's Nine Dotted Lines', p 46. 868 Dupuy and Dupuy, 'A Legal Analysis', pp 132-134.

285 and the Soviet Union used meridian lines in the Arctic to claim the islands within sectors projecting from their northern coastlines to the north pole. Though there was some effort to link this to a claim to maritime control, this has largely been dropped by the Arctic states. Most commentators agree that if China were to publicly proclaim that the nine-dashed line is a claim to the islands within it, it would simultaneously clarify

Beijing's claim, be unproblematic from an international legal standpoint and reduce tensions in the region.

Assessment

The meaning of China's nine-dashed-line map is ambiguous. Three potential explanations of its significance have been discussed by scholars. If it is a claim to the islands inside the line, this would not breach a norm proscribing maritime expansionism. If it is a maritime boundary claim, it would arguably stretch legitimate legal vocabulary, but this is not uncommon. A historic claim is potentially more problematic. A historic waters claim over an area as expansive as that within the nine-dashed-line would be illegal. Historic rights over such an area could have a basis in international law, but not if they related to resources on the geographical continental shelves of other littoral states. However, it has been doubted whether China could point to sufficient evidence to successfully make out a claim to expansive historic rights in the South China

Sea.

If states did press historic rights claims for which they had no compelling evidence, it would have potentially more serious consequences for international order in the oceans than a similarly baseless claim justified using ordinary rules of maritime boundary delimitation. The case law on maritime boundaries and the treaty rules on ridges and islands contain limited uncertainties. The flexibility in the vocabulary they provide is constrained by fundamental rules such as that “the land dominates the sea” and states must not

“cut off” the maritime zones of others. In turn, even if states make unconvincing legal arguments, claims based on these principles are usually relatively spatially constrained. For example, an adjustment to an equidistance line can only be limited or else it cannot be termed an adjustment at all. Even the forceful pursuit of such a disputed area would be a contained threat to the integrity of the maritime property rights order. Claims to historic rights are potentially spatially unrestricted. If spurious historic rights claims were

286 made widely they would, therefore, more seriously undermine the integrity of the maritime property rights order. As with Saddam Hussein's justification for invading Kuwait, such claims would pay lip service to the norm proscribing conquest, but they could represent very serious functional breaches of it if they were pursued with the use of force.

Related to this, a historic claim that encroached on the maritime backyards of the other littoral states would be contrary to the norms of equity and proximity that informed the allocation of maritime space last century. Therefore, an expansive and unconvincing claim to maritime space based on historic rights is especially pernicious given the role that conformity with these principles plays in supporting peace and security within the oceans. In short, if every state began to make baseless historic claims to maritime space, there would be a potential for serious disorder. Discrete maritime boundary claims based on adjusted equidistance lines – even if not compelling – are less prone to be the cause of serious conflict because they are less apt to intrude excessively on maritime areas other states consider legitimately to belong to them.

Having said that, an expansive historic waters claim beyond the territorial sea or historic bays would be the most extreme challenge to UNCLOS, as it entails an exclusive claim to a maritime area. Not only would historic waters enable the control of navigation, they would permit exclusive control of maritime resources as well. A historic rights claim does not interfere with free navigation, and it need not necessarily represent a claim to exclusive rights to maritime resources either. A historic rights claim – especially a non- exclusive one – might, therefore, conceivably represent a considerably weaker challenge to the norms that underpinned the distribution of maritime space and the norm proscribing illegitimate maritime expansionism.

China's and Taiwan's Statements and Actions

In 1992, China granted a concession to the Crestone Energy Corporation to explore an area 160 nautical miles off the Vietnamese coast.869 At the time, the Chinese Ministry of Foreign Affairs defended its actions, saying it had sovereignty over the South China Sea islands and their contiguous waters. The exploitation

869 Though the Vietnamese government argued it was 84 nautical miles from their baselines. McDorman, 'The South China Sea Islands', p 279.

287 was, consequently, “irreproachable.”870 It has been suggested that the blocks were in an area on the Chinese side of a median line between the Vietnamese coast and Prince of Wales Bank which is indeed occupied by

China, although it would not qualify as an island. Others have claimed that the area came within the potential

EEZ of Spratly Island.871 Significantly, the nine-dashed line was not used to justify Beijing's policy and no mention was made of historic waters. Indeed, the term “contiguous waters” appeared to suggest that China's maritime claims stemmed from its sovereignty over land, rather than an independent historic relationship with the sea alone, but this early incident was not determinative of China's legal position. Ominously, however, China pledged to protect the activities of Crestone with force if necessary. Indeed, China's – and to a much lesser degree Taiwan's – policy in the region has been crafted through a series of statements and policy moves. While China's legal position has remained shrouded in mystery, occasionally its actions have spoken louder than its words. The result has been increasing tension in the region, but China has not yet explicitly breached the proscription of forceful maritime expansionism. For its part, Taiwan had originally made a concrete and problematic claim, but it has generally taken a back-seat in the dispute.

The Taiwanese government adopted its South China Sea Policy Guidelines in 1993, which described the nine-dashed line as a “historic water limit.” The waters enclosed by it were said to be under the jurisdiction of the Republic of China, which possessed all rights and interests in them. 872 Although some

Chinese policy analysts suggest Beijing also makes a historic waters claim, officially China has in fact been unclear.873 In 1998, Beijing adopted a law on the EEZ and Continental Shelf, which stated that “the provisions of this Law shall not affect the historic rights enjoyed by the People's Republic of China.”874 The reference to historic rights is far more ambiguous than Taiwan's historic waters claim. It does potentially suggest that China claims some body of rights in the South China Sea that are different to those embodied in the regime of the EEZ and continental shelf, but where these rights are exercised – specifically whether they

870 Zou, 'China's U-Shaped Line', p 24. 871 Valencia et al., Sharing, p 27. 872 Michael Sheng-Ti Gau, 'The U-Shaped Line and a Categorization of the Ocean Disputes in the South China Sea', Ocean Development and International Law, 43:1 (2012), pp 57-69, p 58. 873 M. Taylor Fravel, 'China's Strategy in the South China Sea', Contemporary Southeast Asia: A Journal of International and Strategic Affairs, 33:3 (2011), pp 292-319, p 294. Dutton, 'Three Disputes', p 45. 874 Beckman and Davenport, 'CLCS Submissions', p 6; Zou, 'China's U-Shaped Line', p 22.

288 are on land875 or at sea – is unclear from the term, as is the content of the rights. China has also referred in its legislation to “other sea areas” under it jurisdiction, in addition to internal waters, the territorial sea, EEZ and continental shelf, suggesting China may claim to exercise rights beyond these standard maritime zones.876

Taiwan has apparently placed its short-lived historic waters claim on the back-burner, though it has not denied the relevance of the nine-dashed line map to determining the legal status of the South China

Sea.877 The government's draft Territorial Sea Law referred to historic waters, but this terminology was abandoned in the second reading of the draft in the legislature.878 China has remained even more ambiguous about its claims in the South China Sea. Since the enactment of its EEZ and continental shelf legislation, it has never made any official pronouncement to the effect that the nine-dashed line map represents a maritime boundary claim or simply a claim to the island territories. Beijing has also been unclear in relationship to the historic waters or historic rights claim that the map has been understood potentially to represent. Indeed, other Chinese legislation has suggested that China does not make a historic waters claim. China has declared a territorial sea and (illegally) enclosed the Paracel Islands within straight baselines, both of which would be unnecessary if China had historic waters, though perhaps not in the case of its possessing historic rights. 879

Moreover, in a deal negotiated in 2006 worth $25 billion, the Malaysian state-owned oil company, Petronas, is reportedly to provide Shanghai with gas for 25 years. Part of this gas will come from fields within the U- shaped line, undermining the idea that China claims all the waters and their resources within it for itself.880

However, an event that brought the nature of Beijing's claims in the South China Sea to the forefront was Vietnam's and Malaysia's submissions of their proposed continental shelf limits to the Commission on the Limits of the Continental Shelf in 2009. The submissions were protested by China, which said it had

875 There would also potentially be problems associated with a historic rights claim made in relationship to land. See Dupuy and Dupuy, 'A Legal Analysis', pp 139-140. 876 Zou, 'China's U-Shaped Line', p 23. 877 Sheng-Ti Gau notes, “During the presidency of Chen Shui-Bian, the ROC Ministry of the Interior quietly terminated the SCS Guidelines on 15 December 2005 by an internal note.” Sheng-Ti Gau, 'The U-Shaped Line', p 58 878 Zou, 'China's U-Shaped Line', p 20. 879 Fravel, 'China's Strategy', p 295. It is also worth noting that China makes illegal baseline claims elsewhere, but that it has built lighthouses on some features in order to try to improve their legality. See James Manicom, 'Beyond Boundary Disputes'. This shows that the law of the sea property rights order does exert some compliance pull and that public legality is important for states making maritime claims. 880 See Yee, 'Maritime Territorial Disputes', p 174.

289 sovereignty over the islands of the South China Sea and rights to the “relevant waters” surrounding them.881

The note pointed to the nine-dashed line map which was appended to it. China further accused the two countries of violating its “sovereignty, sovereign rights and jurisdiction” in the South China Sea. The term

“jurisdiction” in the note seems to be redundant as states have sovereignty over their land and territorial seas and sovereign rights in the zones beyond, according to UNCLOS. This has led one analyst to suggest that the term “jurisdiction” must refer to something additional to these rights – perhaps historic waters or historic rights.882 The term “relevant waters” is similarly imprecise and may imply an ambition to assert control over areas beyond the maritime zones codified in UNCLOS. However, Beckman and Davenport also note that no mention of historic waters or historic rights was explicitly made.883

Somewhat later in 2009, Vietnam explored opportunities to cooperate with an Indian company in exploiting the resources of its continental shelf. The Chinese Foreign Ministry reacted to these developments, stating that China had “developed, utilized and administered relevant waters of the South

China Sea for a long stretch of time since antiquity. China's sovereignty, rights and relevant claims over the

South China Sea have been formed in the long course of history and persistently upheld by the Chinese government.”884 Although no mention was made of the nine-dashed line in the statement, the spokesman's comments indicated once again that China's position in the South China Sea is related to historical conditions. By using the term “over the South China Sea”, the statements is quite clear that these historical factors relate to China's maritime claims, not just its purported ownership of islands. However, the content of any maritime historic rights and their relationship to the nine-dashed line is as ambiguous from the statement as it is from China's 2009 Note Verbale.

Significantly, both Indonesia and the Philippines replied to the original Chinese Note Verbale through letters to the United Nations Secretary General in 2010 and 2011. They both asserted that any claims to the waters inside the nine-dashed lines would be inconsistent with the Law of the Sea Convention. The

881 Communication from the Delegation of the People's Republic of China, 7 May 2009, available at: {http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf} accessed on 17 September 2013. 882 Nguyen-Dang and Nguyen, 'China's Nine Dotted Lines', p 43. 883 Beckman and Davenport, 'CLCS Submissions', p 25. 884 Quoted in Beckman, 'The UN Convention', p 157.

290 Philippines pointed out that no claim could be made to “relevant waters” other than those adjacent to the islands satisfying the definition in Article 121 of UNCLOS. China responded to the Philippines' protest in

2011, repeating its position that China had “sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.”885 It further asserted that China's “sovereignty and related rights and jurisdiction” were supported by abundant “historical and legal evidence.” However, the Note Verbale continued:

Since the 1930s, the Chinese Government has given publicity several times the geographical scope of China’s Nansha [Spratly] Islands and the names of its components. China’s Nansha Islands is therefore clearly defined. In addition, under the relevant provisions of the 1982 United Nations Convention on the Law of the Sea, as well as the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone (1992) and the Law on the Exclusive Economic Zone and the Continental Shelf of the People’s Republic of China (1998), China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ) and Continental Shelf.

The direct reference to the Law of the Sea Convention and the maritime zones it codifies suggested China intended to adhere to it by claiming a territorial sea, EEZ and continental shelf from the islands. 886 It seemed

China was finally recognising UNCLOS as the sole basis of legal rights in the South China Sea as the note also made no specific mention of a historic waters claim. However, its reference to the 1998 law and

“historical evidence” might have implied such a claim. Equally, the references might suggest only a claim to more nebulous historic rights. Thus, the first official submission of the U-shaped line map in a note protesting a maritime claim was significant, but its meaning remained ambiguous. However, the actions of various Chinese agencies and companies suggest any assertions in response to its 2011 Note Verbale that

Beijing would claim maritime zones based solely on UNCLOS were misplaced.

Valencia et. al. have commented that, occasionally, “Chinese statements – and, more importantly,

Chinese actions – indicate that China actually claims all the waters and resources”887 within the nine-dashed line. China has frequently engaged in patrols of the South China Sea, in large part to demonstrate the 885 Communication from the Delegation of the People's Republic of China, 14 April 2011, available at: {http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl.pdf} accessed on 17 September 2013. 886 Although Dutton suggests that the reference to Chinese domestic laws which do contain language relating to historical claims means that China does, indirectly and ambiguously, make a historic waters claim in the note. See Dutton, 'Three Disputes', p 51. 887 Valencia et. al., Sharing, p 25.

291 effective control necessary to support its legal claims to jurisdiction. Many of these cruises have been directed at the disputed islands. In 2012, Beijing was involved in a tense standoff with Manilla over enforcement activities around Scarborough Shoal. In 2013, a flotilla was sent to James Shoal, which is the furthest southern extremity of the area marked out by nine-dashed line. However, on occasion, the patrols have reached far into disputed waters and even into the Exclusive Economic Zones of other claimants at some distance from claimed islands.888 China has also imposed unilateral fishing bans in 128,000 square kilometres it disputes with Vietnam and has enforced these bans with patrols.889

China has also warned foreign oil companies not to aid Vietnam's exploration of disputed waters. 890

A notable incident occurred in May 2011, when Chinese fishing and law enforcement vessels cut the cables of a Vietnamese survey ship, which was carrying out explorations well inside Vietnam's declared exclusive economic zone. Vietnam accused China of deliberately engaging in hostile action, drawing a denial from

Beijing which said Vietnam's activities “undermined China's interests and jurisdictional rights.” 891 A further statement explained that “What relevant Chinese departments did was completely normal marine law- enforcement and surveillance activities in China's jurisdictional area.”892 China further called on Vietnam not to inflame the disputes and made clear that it had avoided oil exploration activities in disputed waters and that other countries should, therefore, avoid them also.

Vietnam responded by stating that the area was inside Vietnam's EEZ and accusing China of misleading the public into thinking that the area was disputed, when it in fact was not. Though Vietnam agreed that the parties shared a common desire to resolve the disputes peacefully, it said “there is no such common perception that states China has the right to hinder Viet Nam's activities within the exclusive

888 For a list of recent alleged incursions into the Philippine EEZ by Chinese vessels, see Carlyle A. Thayer, 'China's New Wave of Aggressive Assertiveness in the South China Sea', Paper presented at the Center for Strategic and International Studies Conference on Maritime Security in the South China Sea, Washington DC, 20-21 June, 2011, available at: {http://csis.org/publication/chinas-new-wave-aggressive-assertiveness-south-china-sea} accessed on 13 September 2012. 889 Sarah Raine, 'Beijing's South China Sea Debate', Survival: Global Politics and Strategy, 53:5 (2011), pp 69-88, p 74. 890 Dutton, 'Three Disputes', p 43. 891 Quoted in: 'Vietnam Accuses China in Seas Dispute', BBC News, 30 May 2011, available at: {http://www.bbc.co.uk/news/world-asia-pacific-13592508} accessed on 4 September 2012. 892 Thayer, 'China's New Wave of Aggression', p 17.

292 economic zone and the continental shelf of Viet Nam.”893 Vietnam emphasised that the nine-dashed line map did not embody a legitimate claim to maritime space. The Philippines has also complained of harassment of its ships by Chinese vessels in what it claims to be undisputed waters inside its EEZ.894

In June 2012, the state run Chinese National Offshore Oil Company opened nine blocks of seabed to bids from foreign companies for joint ventures. The blocks are on the Vietnamese continental shelf, within its exclusive economic zone and, at their closest, 230 nautical miles from the south coast of China's Hainan

Island. Moreover, according to one analysis, substantial portions of the blocks were beyond the equidistance line between Vietnam's coast and the nearest of the Spratly Islands that could conceivably generate continental shelves themselves.895 The Chinese action appears to suggest that, contrary to earlier assertions,

China is claiming all the resources within the nine-dashed line as being under its jurisdiction. The nine- dashed line is, after all, drawn on the map on the CNOOC description of the location of the blocks. Indeed,

China's Foreign Ministry Spokesman is reported to have called the CNOOC auction “normal business activity” that complies with international law.896 Naturally, Vietnam has argued that China cannot defend its activities and Petro-Viet Nam called on CNOOC to cancel the process of seeking bids for exploring the blocks.

China caused further controversy when it reportedly placed the nine-dashed line on maps contained within new passports in 2012, though no official explanation of the move was forthcoming.897 A law passed by Hainan Province to regulate shipping in the South China Sea has also caused concern that China might

893 Consulate General of Vietnam in Houston, 'Press Conference on Chinese Marine Surveillance Vessel's Cutting Exploration Cable of PetroViet Nam Seismic Vessel', available at: {http://vietnamconsulateinhouston.org/vi/latest- news/press-conference-on-chinese-marine-surveillance-vessels-cutting-exploration-cable-of-petroviet-nam-seismic- vessel} accessed on 26 July 2013. 894 International Crisis Group, 'Stirring Up the South China Sea', p 6. Fravel, 'China's Strategy, p 307. Chinese fishing boats were reported again to have cut the cables of a Vietnamese survey ship in December 2012, but this was later reported to be accidental. See Bloomberg News, 'PetroVietnam CEO Says Chinese Ships Cut Cables “By Accident”', Bloomberg, 4 December 2012, available at: {http://www.bloomberg.com/news/2012-12- 04/petrovietnam-ceo-says-chinese-ships-cut-cables-by-accident-1-.html} accessed on 26 July 2013. 895 See Greg Poling, 'CNOOC Pulls Back the Curtain', Center for Strategic and International Studies, Asia Policy Blog, 14 August 2012, available at: {http://cogitasia.com/cnooc-pulls-back-the-curtain/} accessed on 7 September 2012. 896 Nick Heath, 'Vietnam Calls on CNOOC Parent to Scrap Oil Exploration Bids', Bloomberg, 26 June 2012, available at: {http://www.bloomberg.com/news/2012-06-27/vietnam-calls-on-cnooc-to-scrap-bid-to-explore-oil-off-coast- 1-.html} accessed on 7 September 2012. 897 Jonathan Kaiman, 'Chinese Passport Map Causes Diplomatic Dispute', The Guardian, 27 November 2012, available at: { http://ww w.guardian.co.uk/world/2012/nov/27/chinese-passport-row-diplomatic-dispute } accessed on 26 July 2013.

293 seek to interfere with free navigation in the region. This, combined with China's resource-related acts, might imply that Beijing really makes a historic waters claim. However, reportedly the law only applies to ships within the territorial sea engaged in illegal activities.898 If this is correct, the move does not itself challenge the norms embodied in UNCLOS and merely signals Chinese resolve to maintain its territorial claims. It might also suggest that China is continuing its ambiguous position that it is entitled to undefined historic rights in the South China Sea. This position has been pursued by a number of Chinese legal academics. Their writings potentially provide something of an insight into the nature of China's thinking that the ambiguous statements of its officials do not.

The most recent and notable scholarly effort emerged in 2013, by Zhiguo Gao, a member of the

International Tribunal on the Law of the Sea, and Bing Bing Jia, a Professor of International Law at Tsinghua

University.899 The nine-dashed line is primarily a claim to islands, according to the authors, and, significantly, it is this that is the main focus of their analysis. They further suggest that China claims the maritime zones mandated in UNCLOS, but that it also claims a set of historic rights within the nine-dashed line. However, they are unclear whether the spatial extent of the rights is actually defined by the nine-dashed line. The line itself, they argue, might serve a “potential” residual purpose as a maritime boundary, which suggests the claimed rights do extend to the limits of the line.900 The use of the term “potential” might, though, suggest some flexibility in this position. Their central argument, however, is that

the nine-dash line has always had a foundation in international law, including the customary law of discovery, occupation, and historic title, as well as UNCLOS itself. The article attempts to show that the line, albeit based in customary law, does not in its current form contradict China's obligations under UNCLOS; rather, by virtue of the wider scope of the rules of customary international law, the line supplements what is provided for under UNCLOS. In this context, the article argues that historic title provides the basis for China's possession of certain historic rights in addition to the rights granted under UNCLOS.901

The authors are clear that they do not consider the nine-dashed line to represent a claim to historic waters.902 898 Jane Perlez, 'China Fuels Fear of Maritime Escalation', Sydney Morning Herald, 3 December 2012, available at: {http://newsstore.fairfax.com.au/apps/viewDocument.ac;jsessionid=A59819F1AAB3A07B48F96187C397A008? sy=afr&pb=all_ffx&dt=selectRange&dr=1month&so=relevance&sf=text&sf=headline&rc=10&rm=200&sp=brs&c ls=19050&clsPage=1&docID=SMH121203JPM0R7AJ4M0} accessed on 26 July 2013. 899 Gao and Jia, 'The Nine-Dash Line'. 900 Gao and Jia, 'The Nine-Dash Line', p 108. 901 Gao and Jia, 'The Nine-Dash Line', p 123. 902 They suggest that if it was once a historic waters claim, it is no longer. Gao and Jia, 'The Nine-Dash Line', p 109

294 They consider the waters within it to be a space over which China exercises less than full sovereignty. This has important implications for free navigation which the authors are at pains to explain has been, and will continue to be, respected by China in line with the requirements of UNCLOS.903

To be sure, the authors seemed to be eager to downplay the departure from UNCLOS that the nine- dashed line claim represents. The article explains that the South China Sea dispute is “chiefly concerned with territorial sovereignty over certain island groups; the legal nature of the waters adjacent to them is mainly to be regulated by UNCLOS.”904 They explain that the nine-dashed line is synonymous with a claim to the islands, “with an additional Chinese claim of historical rights of fishing, navigation, and other marine activities (including the exploration and exploitation of resources, mineral or otherwise) on the islands and in the adjacent waters.”905 This would appear to be significant, because a claim that is allied in some way to sovereignty over land and also to UNCLOS is potentially more constrained than one that contemplates independent authority over maritime spaces.

The authors went on to cite case law in support of their arguments that China has additional historic rights in the South China Sea. In particular, they cited the case between Libya and Tunisia in which the delimitation was not affected by the historic rights claimed by Tunisia. They also cited the arbitration between Eritrea and Yemen in which the historic rights accrued to both parties and merely mandated the continuation of an open access regime for the littoral states.906 In fact, they referenced this as a potential model for the South China Sea. The precise nature of the historic rights the authors claim belong to China is, consequently, still fairly opaque, as is the function of the nine-dashed line and where the rights are purported to be exercised.

These continuing ambiguities, added to the cautious nature of their analysis, is significant and suggests even non-governmental actors go not directly and overtly wish to challenge the maritime property rights order. The nuanced nature of the analysis might pave the way for China to depart from the most extreme of the potential claims described by other scholars. Instead of pressing an exclusive claim to most of

903 Gao and Jia, 'The Nine-Dash Line', p 119. 904 Gao and Jia, 'The Nine-Dash Line', p 119. 905 Gao and Jia, 'The Nine-Dash Line', p 108. 906 See discussion above at p 277-279.

295 the South China Sea, China might seek to argue that it only has a historic interest in the resources similar to that claimed by Eritrea in its litigation with Yemen. Moreover, the means of exercising these rights might be more negotiable than sometimes appears apparent. Indeed, the calls, discussed below, for joint development made by China itself might reflect this position.

Summary and Assessment

It is frequently stated that China claims the vast majority of the South China Sea as its territory. A claim of this character would seem by any definition to be in breach of the norm proscribing maritime expansionism in most maritime regions. Moreover, it would seem fundamentally to challenge the consensus that underpinned the allocation of maritime space in UNCLOS. However, the South China Sea is topographically complex. The ambiguities in the legal principles relevant to the allocation of maritime space in the South

China Sea create the conditions for arguably legitimate disputes that would not be possible in more straightforward maritime settings. The question under these circumstances, therefore, is whether China's actions and policies can be said to have a basis in international law and whether its behaviour presents a challenge to the norm proscribing conquest.

Though the nine-dashed line does seem to represent some kind of maritime claim, if not constitute one, China has resisted claiming the areas enclosed by it as historic waters. In fact, China has apparently sought to minimise the degree of its challenge to the UNCLOS property rights regime. One assessment concluded that the Chinese notes verbale surrounding the Malaysian-Vietnamese joint CLCS submission were “carefully crafted so as not to be contrary to UNCLOS.”907 Beijing has stated that it plans to claim an

EEZ and continental shelf in the South China Sea and an important academic analysis argues that the status of the region will mainly be regulated by UNCLOS. However, Beijing would appear to continue to rely on an additional, nebulous claim to historic rights in the South China Sea. Although this possible claim does potentially represent a challenge to international law if it relates to continental shelf resources, the lack of clarity surrounding China's position makes it hard to predict precisely how much of a challenge could be.

907 Beckman, 'China, UNCLOS', p 30.

296 Indeed, it would appear that China might also lack the evidence to make a compelling claim to historic rights in the South China Sea, but the principle of historic rights provides China with flexibility in its approach.

Beijing can continue to be ambiguous about its legal position, which enables it to fend off criticism that it is behaving in an expansionist manner. This might suggest China's policies are, to some degree at least, constrained by the contemporary illegitimacy of conquest. As one Chinese scholar reportedly put it, “to keep our claim vague is to allow us more flexibility and save our face.”908

Despite the ambiguity of its claims, legal discourse has played an important part in the justification for China's policies, which further indicates that China's behaviour is conditioned by the norm proscribing conquest. Indeed, one group of scholars from both mainland China and Taiwan have pledged to provide a legal explanation of the nine-dashed line and other scholars have repeatedly sought to justify the line in legal terms.909 This effort would suggest that states are reluctant to simply make claims based solely on their material capacity to press them. By making a legal claim that disputes jurisdiction over maritime space,

China at least acknowledges the contemporary illegitimacy of conquest.

However, China has a record of threatening and using force in the South China Sea and on its islands. Its forces evicted Vietnamese forces from the Paracel Islands in 1976 and military personnel sought to occupy Mischief Reef in 1995. Although on the latter occasion force did not have to be used, it was nevertheless a coercive act. The same could be said of the cable-cutting incidents inside Vietnam's exclusive economic zone and the concession offered to Crestone Energy to explore for oil in contested waters. These acts related more clearly to maritime space rather than the territorial dispute. It remains the case, though, that

China has not taken the ultimate step of unilaterally and exclusively exploiting the disputed resources of the

South China Sea backed by an explicit threat to use force if challenged. Moreover, China has sought to downplay its use of force in relationship to its maritime claims by utilising the plethora of domestic agencies charged with guarding China's maritime interests, rather than its naval forces. 910 Christian Le Miere

908 International Crisis Group, 'Stirring Up the South China Sea', p 17. 909 'Chinese Scholars to Study South China Sea Borderline, Says Expert', Xinhua, 24 October 2012, available at: {http://news.xinhuanet.com/english/china/2012-10/24/c_131927426.htm} accssed on 26 July 2013. 910 Though there have also been recent live fire exercises in the South China Sea. See NIDS China Security Report Task Force, 'NIDS China Security Report', p 20.

297 concludes that this approach is designed to avoid stoking the dispute by militarising it. 911 However, this behaviour also enables China to downplay the degree of any perceived breach of the norm proscribing forceful expansionism at sea.

That said, domestic debates within China do potentially suggest that its acceptance of the norm is not complete. Raine notes that a People's Liberation Army strategist in 2009 stated ambiguously and ominously that “boundaries of national interest,” rather than simply territorial boundaries would need to be defended to safeguard national security interests and future national development.912 When faced with criticism of

Beijing's actions in a 2010 meeting of the ASEAN Regional Forum in Hanoi, China's Foreign Minister, Yang

Jiechi, stated that “China is a big country and other countries are small countries, and that’s just a fact.” 913

Statements like these have done little to ease tensions and Chinese officials have also reportedly suggested to

US diplomats that the South China Sea is a core interest of the PRC, placing it in the same category as

Taiwan and Tibet. However, most have considered that China has no consistent policy of defining the South

China Sea as an issue of core interest.914

Indeed, far from all of the rhetoric from the PRC on its maritime ambitions and intentions has been belligerent. At a conference, Admiral Wu Shengli, commander of the People's Liberation Army Navy

(PLAN) gave a keynote speech on the concept of the “Harmonious Ocean” in which he stated that the

“PLAN is willing to work hand-in-hand with the world to jointly preserve enduring peace and security on the seas.” He also stated that China would comply with international law, including the UN Charter and

UNCLOS.915 On a visit to Singapore, Xi Jinping said that China regards all countries, big and small, as equals.

It has been suggested that the source of some of the most bellicose statements on China's position has been the military. Raine contemplates that this indicates either poor civilian control of the military or a

911 Christian Le Miere, 'The Return of Gunboat Diplomacy', Survival: Global Politics and Strategy, 53:5 (2011), pp 53- 68, p 65. 912 Raine, 'Beijing's South China Sea Debate', p 80. 913 International Crisis Group, 'Stirring Up the South China Sea', p 5. 914 International Crisis Group, 'Stirring Up the South China Sea', p 3. Fravel, 'China's Strategy', p 296 and Nong Hong and Wenran Jiang, 'Chinese Perceptions of US Engagement in the South China Sea', China Brief, 11:12 (2011), available at: {http://www.nanhai.org.cn/en/cg_detail.asp?newsid=640&lm=cg} accessed on 26 July 2013. 915 NIDS China Security Report Task Force, 'NIDS China Security Report', p 3.

298 deniable attempt to probe the international community's response to China's hawkish options.916 The Ministry of Foreign Affairs, on the other hand, has clearly been the more dovish agency, repeatedly reassuring regional players that China does not harbour expansionist intentions. Indeed, a report by the International

Crisis Group indicates that Chinese Ministry of Foreign Affairs officials had briefed embassies that the nine- dashed line map was primarily a claim to the island features and the EEZs they would generate. 917 The difficulty for the MFA, however, is that the nine-dashed line map has apparently taken a place within the popular consciousness in China, making it difficult for China to back down. 918 Consequently, ambiguity might serve China's interests in the face of equally hostile – though for different reasons – public and international opinion.

The points of view within China, are, therefore, mixed. Combined with its ambiguous policy statements and actions, this might suggest that China's behaviour is strategic. Its reluctance to overtly breach the standard proscribing conquest, consequently, arises not from private acceptance of the appropriateness of the standard, but aversion to the results that would arise from its breach. Indeed, it might be suggested that

China has been cautious because it would not be in its material interests to forcefully expand. Disruption to economic activity would almost certainly ensue from Chinese aggression. Additionally, the South China Sea issue would become increasingly internationalised. But this disruption and international attention would stem at least in part from a wide perception that such behaviour is deeply problematic – and much more so than its assertive but cautious behaviour to date. In other words, the norm proscribing conquest would be essential to fully understand the dynamics of Beijing's South China Sea policies.

Indeed, Zacher concludes that a strong norm proscribing conquest has caused the international community to react against attempts to breach it in cases of territorial aggression on land. Though there has been no act of all out conquest in the South China Sea to catalyse such a response, an examination of international perspectives on the issue indicates serious concern about the expansionist intentions some perceive China to have, notwithstanding its cautious behaviour and ambiguous legal position. As a result, the

916 Raine, 'Beijing's South China Sea Debate', p 80. 917 International Crisis Group, 'Stirring Up the South China Sea', p 3. 918 International Crisis Group, 'Stirring Up the South China Sea', p 16.

299 South China Sea, and particularly China's nine-dashed line map, have been politicised substantially, resulting in pressure on the PRC to clarify its claims and for there to be certain international legal regulation of the region. Moreover, although states have pressed their interests in free navigation, the concerns of policy- makers and observers have also tended to blur the distinction between land and sea – as occurred in the

Arctic. In short, expansionism wherever it takes place has been constructed as highly problematic and a threat to security of international concern.

International Reaction

Clearly, China is becoming the dominant power in the Asia-Pacific. With its burgeoning economy and rapidly improving military forces, it has the capacity to achieve a favourable outcome in the South China Sea disputes because the other claimants are individually comparatively small, under-developed and lacking in military capacity. Aware of their weaknesses, however, the other claimants have mostly sought to achieve a common perspective on the South China Sea and mutually support one another against China. This policy has involved an active effort to isolate and delegitimise China, largely through politicising the nine-dashed line claim. Part of this strategy has included the enlistment of extra-regional support against China's claims.

While this may appear to amount to simple power balancing, it is hard to understand the dynamics of this behaviour without considering prohibitions relating to conquest and territorial expansionism.

Indeed, aware of the international prohibition relating to expansionism, Southeast Asian states have sought to embarrass China and depict its policies as the problem in the region. For example, Vietnam sought a legal opinion from a US law firm, which favoured Hanoi's view. It then published the opinion in the Asian

Wall Street Journal.919 The Philippines' President, Joseph Estrada said several years ago that there were

“political anxieties currently centring on China’s efforts to projects its power into the region’s maritime heartland.”920 The South East Asian claimants have played on these concerns. The Philippines' Foreign

Ministry reportedly described China's u-shaped line as “not only an excessive claim but a threat to all

919 Duong, 'Following the Path of Oil', p 1156. 920 Quoted in Cheng Guan Ang, 'The South China Sea Dispute Revisited', IDSS Working Paper No. 4, Institute of Defense and Strategic Studies, August 1999, Singapore, available at {http://dr.ntu.edu.sg/bitstream/handle/10220/4432/WP04.pdf?sequence=2} accessed on 26 July 2013.

300 countries.”921 It called for “international condemnation by ASEAN, our international partners and the entire community of nations.” Language like this taps into the understanding of expansionism as a source of disorder and, consequently, a major threat to international security, not just national security for victim states.

Moreover, in a signal of just how important legal rules are to the perception of the legitimacy and illegitimacy of maritime claims among the international community, Manilla has sought to take the dispute to court. In early 2013, the Philippines signalled its intention to submit several South China Sea issues to binding dispute resolution under the Law of the Sea Convention. Because China has not signalled its preferred forum for dispute resolution, it is assumed to have consented to arbitration by an ad hoc tribunal convened in line with the rules set out in Annex VII of UNCLOS. Although China has exercised its right to prevent binding dispute resolution of maritime boundary-related issues, the Philippines has circumvented this bar by seeking judicial determination of a number of issues it argues are unrelated to maritime boundaries. Most important is that Manilla has asked the tribunal to rule on the validity of the nine-dashed line and for a decision on whether China has interfered with the Philippines' exercise of its rights under

UNCLOS. China has refused to participate in the process, saying that the tribunal does not have jurisdiction over the dispute. This suggests China might be aware of potential weaknesses in its legal position and certainly that it would prefer they remain ambiguous. That China will not be able to stop the tribunal considering the issues will potentially enable final clarification of the legal status of the nine-dashed line, however. If the tribunal rules that the nine-dashed line cannot define a legitimate maritime claim, it will place considerable pressure on China to modify its behaviour in the South China Sea. Either way, it will also enable the international community to judge the legitimacy of China's claims.

Indeed, the international community has been relatively cautious in its approach to the South China

Sea disputes. The United States and some other countries have largely refused to take sides in the disputes over the islands. However, this policy merely reinforces the idea discussed in chapter six that legitimate legal disputes over territory are regarded as normal and unproblematic. 922 The US, Australia and other extra-

921 Tarra Quismundo, 'PH Hits China Threat to Int'l Shipping', Philippine Daily Inquirer, 2 December 2012, available at: {http://globalnation.inquirer.net/58481/ph-hits-china-threat-to-intl-shipping} accessed on 26 July 2013. 922 Indeed, it has been suggested that the United States will not aid the Philippines under its mutual defence treaty if an armed attack should be directed at the disputed islands. See Jojo Malig, 'Will US Defend Philippines if China

301 regional powers do, however, oppose the use of force to settle disputes, emphasising that the use of force within territorial disputes is, at the very least, understood as seriously problematic. 923 The situation regarding the nine-dashed line is more complicated: it is difficult for outside governments to explicitly and pointedly oppose Chinese maritime expansionism, thereby reinforcing the norm proscribing maritime conquest, precisely because it is unclear to what degree China's legal position is expansionist. Moreover, China has not yet acted on it if it is.

Nevertheless, although outside states have refused to take sides regarding the territorial dispute, it would appear that the nine-dashed line claim has been a major source of concern internationally. One observer concludes that the uncertainty of China's claims is seen as the source of instability in the region.924

An ICG report concluded that China has, since its upswing in assertive behaviour in 2009, “gravely tarnished” its image in the region and beyond.925 This delegitimisation of the Chinese position has encouraged growing pressure from within and outside the region for China to comply with international norms. Japanese policy-makers have spoken of a coalition of the willing to oppose China largely because of its territorial and maritime claims.926 Similarly, a Japanese policy-focused report states that the renewed interest in the Asia-Pacific by the United States has been drawn by China's “advance” into its surrounding waters.927 Indeed, in a statement to the US Congress, Assistant US Secretary of State for East Asian Affairs,

Stanley Roth said in 1999 that there was no military build up to be concerned about in the region, but that

“it’s the trend and the fact that China claims all this territory that’s troubling.”928

Moreover, despite the ambiguity of China's claims, some states have made strong arguments that if

China's nine-dashed line were a claim to the waters of the South China Sea, it would be excessive and illegal. Attacks?' ABS-CBN News, 25 July 2012, available at: {http://www.abs-cbnnews.com/-depth/07/25/12/will-us- defend-philippines-if-china-attacks} accessed on 26 July 2013. 923 For example, in a press conference with the Philippine Foreign Secretary, Hilary Clinton stated: “we stand for the rule of law and we stand for international norms and standards, which is why we support the peaceful resolution [of the South China Sea disputes].” United States Department of State, 'Clinton, Philippine Foreign Secretary Joint Press Availability', 16 November 2012, available at: {http://translations.state.gov/st/english/texttrans/2011/11/20111116142331su0.4998852.html#ixzz2EhNes3TA} accessed on 26 July 2013. 924 Dutton, 'Three Disputes', p 53. 925 International Crisis Group, 'Stirring Up the South China Sea', p 37. 926 Fackler, 'Japan is Flexing its Military'. 927 NIDS China Security Report Task Force, 'NIDS China Security Report', p 46. 928 Quoted in Ang, 'The South China Sea', p 16.

302 Beckman and Davenport conclude that after it submitted the nine-dashed line map in its note verbale to the

UN, “a large segment of the international community now views China's claims in the South China Sea as illegitimate.”929 Asian states, in particular, appear to be fairly widely agreed that China is becoming threatening based in large part on perceptions of its expansionism,930 although some states have been more susceptible to Beijing's influence and opposed efforts to challenge China diplomatically.931

For its part, the United States State Department has recently reiterated pointedly that the USA does not take a position on the territorial dispute over the islands, but explained that this position does not extend to the maritime dispute. Indeed, it also urged “all parties to clarify and pursue their territorial and maritime claims in accordance with international law, including the Law of the Sea Convention.” 932 A State

Department spokesman also warned against divide and conquer tactics in the South China Sea – a statement pointedly aimed at China.933 The United States Senate has also weighed in, passing a resolution unanimously that “deplored” China's “use of force” relating to the cable cutting incidents in Vietnam's EEZ described above.934 Most recently, a resolution was adopted that supported US military operations undertaken to uphold free navigation and to encourage respect for international law and the peaceful resolution of issues of sovereignty.935 Notably, the resolution also pledged support for the nations of Southeast Asia to remain strong

929 Beckman and Davenport, 'CLCS Submissions', p 28. It has been suggested that China is viewed as a bully. Banyan, 'Troubled Waters', The Economist, 6 August 2012, available at {http://www.economist.com/blogs/analects/2012/08/south-china-sea} accessed on 26 July 2013. 930 Amando Doriano, 'Coalition of the Willing Rising Against China', Philippines Daily Inquirer, 3 December 2012, available at: {http://www.asianewsnet.net/home/news.php?id=39688&sec=3} accessed on 26 July 2013. 931 During its Chairmanship of ASEAN, Cambodia has attempted to prevent discussion of China's claims in the organisation. See Simon Rougneen, 'Another Asean Rift Over South China Sea', The Irrawaddy, 20 November 2012, available at: {http://www.irrawaddy.org/archives/19331} accessed on 26 July 2013. 932 United States Department of State, Statement by Patrick Ventrell, 'South China Sea', 3 August 2012, available at: {http://www.state.gov/r/pa/prs/ps/2012/08/196022.htm} accessed on 26 July 2013. Australian Prime Minister, Julia Gillard, has also said, rather more obliquely, that “it is in everybody's interest that issues in the South China Sea are managed in a peaceful way in accordance with international law.” Louise Yaxley, 'Gillard Wants South China Sea Code of Conduct', ABC News, 20 November 2012, available at: {http://www.abc.net.au/news/2012-11-20/gillard- wants-code-of-conduct-for-south-china-sea/4382768} accessed on 26 July 2013. 933 Reuters 'US Warns vs Divide and Conquer in the S. China Sea' ABS-CBN News, 51 August 2012, available at: {http://www.abs-cbnnews.com/global-filipino/world/08/15/12/us-warns-vs-divide-and-conquer-s-china-sea} accessed on 26 July 2013. 934 Raine, 'Beijing's South China Sea Debate', p 76. 935 United States Senate, 112th Congress, 2nd Session, S. RES. 524, 'Reaffirming the strong support of the United States for the 2002 declaration of conduct of parties in the South China Sea among the member states of ASEAN and the People’s Republic of China, and for other purposes', available at: {http://www.govtrack.us/congress/bills/112/sres524/text} accessed on 26 July 2013.

303 and independent.

The US has continually emphasised its interest in unimpeded navigation through the South China

Sea, and it may appear that this is its primary motivation for action in the region. American policy in opposing Chinese expansionism, if informed only by freedom of navigation concerns, would reflect the differences between land and sea, rather than their commonalities: it would suggest that the United States only considers the oceans useful as a transport surface. On this view, respect for the law of the sea property rights order is only valuable in so far as it helps to maintain the sea as friction free for navigation. This perspective further suggests that material interests, rather than ideational concerns relating to the illegitimacy of conquest would underline opposition to China's potentially expansionist claims. However, the United

States' position is likely more complex as major sea lines of communication have been said to pass well to the west of the Spratly Islands.936 Moreover, China has repeatedly pledged to respect free navigation in the

South China Sea.937 As discussed above, a claim to historic rights rather than a historic waters would not entail a power to interfere with navigation. US and international concerns remain, however: China's maritime policies have interacted with general concerns about its rise to prominence and attracted attention regardless of its attitude to freedom of navigation.

Indeed, China has repeatedly emphasised that it intends its rise to be peaceful. However, some commentators and policymakers have promoted the alternative “China threat” theory.938 This perspective sees China as a dissatisfied power, ready to overturn the international status quo in its own favour. From this point of view, the discourse of peaceful rise is merely a ruse until China has acquired sufficient military and economic power to impose its will on the international community. Concerns about Chinese nationalism and discourses within China about its “century of humiliation” and “lost territories” reinforce these concerns.

China's growing power means that the international community is particularly attuned to signals of its intentions and compliance with international norms. In short, it is not simply China's growing power that is

936 Daniel J. Dzurek, 'The People's Republic of China Straight Baseline Claims', IBRU Boundary and Security Bulletin, 1996, available at: h{ttps://www.dur.ac.uk/ibru/publications/download/?id=92} accessed on 26 July 2013. 937 Hong and Jiang, 'Chinese Perceptions'. 938 Emma V. Broomfield, 'Perceptions of Danger: The China Threat Theory', Contemporary China, 12:35 (2003), pp 265-284.

304 of concern; rather, it is how China will use its power. Arguably, China's intentions relating to its territorial and maritime claims have been one of the key areas on which observers concentrate in assessing the degree to which China's rise is problematic. Thus, whereas once observers might only have been concerned by the intentions of rising powers towards land borders, it now seems that their ambitions relating to maritime space are also of concern.

Indeed, this interaction between the perception of rising power and maritime ambitions is perhaps most clearly demonstrated in the assessment of China's acquisition of its first aircraft carrier. Newspaper articles and commentators rarely failed to mention in their discussions of the significance of this development that China is engaged in a set of maritime territorial disputes with its neighbours. 939 Moreover, media outlets almost exclusively focus on China and its policies as being those that are problematic, often mentioning the received wisdom that China claims almost the whole South China Sea. In contrast, it is rare to even read in detail what the claims of the South East Asian states are in the region. In short, China's policies have been identified as problematic because they are perceived to be excessive and expansionist, even though the reality is that they are ambiguous. When combined with concerns about China's military modernisation, China's South China Sea claims have been politicised to an almost unparalleled degree among contemporary maritime disputes.

To sum up: whether China harbours expansionist intentions is regarded as something of a litmus test of its revisionist or status quo orientation. And it is China's maritime policies in the South (and to a lesser extent the East) China Sea that are the focus of this test. This viewpoint raises maritime issues to the same kind of status as terrestrial disputes. Thus, the case of China, demonstrates that it would not appear to matter much whether the perceived expansionist intentions are manifested on land or at sea. It is regarded as common sense that territorial conflict and particularly expansionism, wherever it takes place, is highly problematic.

939 See, for example, 'US Satellite Pictures Chinese Aircraft Carrier Varyag', BBC News, 14 December 2011, available at: {http://www.bbc.co.uk/news/world-asia-16190926} accessed on 26 July 2013 and Reuters, 'Neighbours Wary as China Lands Fighter on Its First Aircraft Carrier', The Telegraph, 25 November 2012, available at: {http://www.telegraph.co.uk/news/worldnews/asia/china/9701605/Neighbours-wary-as-China-lands-fighter-jet-on- its-first-aircraft-carrier.html} accessed on 26 July 2013.

305 Indeed, it is common for commentators to refer to the South China Sea disputes as shorthand for all the disputes, with no distinction between land and sea. Though this terminology may arise from ignorance in some quarters, that there is not considered to be a material distinction in the problem that maritime expansionism represents in comparison to that relating to land is instructive. Even for the claimants themselves, the South China Sea maritime disputes and the territorial disputes are conflated and inseparable.

After all, they signed a Declaration on a Code of Conduct in the South China Sea which mostly referred to managing the competing claims to disputed islands, despite its arguably misleading name. Consequently, dominant public discourses relating to the South China Sea issue reveal the same blurring of the distinction between the two spaces that was apparent in the discourses surrounding the Arctic Ocean.

That said, unlike the Arctic, the South China Sea is home to interrelated territorial and maritime disputes, but the source of regional and international concern is not primarily directed at the territorial disputes independently of the maritime disputes. In other words, the islands are only significant because the maritime space that would potentially accrue to those that possessed them. States within the region are, therefore, mostly only concerned about Chinese expansionism relating to the islands because of the maritime zones that might be generated by them. Potential territorial expansionism therefore takes a secondary place to maritime expansionism in the South China Sea. Outside states have also not exhibited the same level of concern about China's policies towards the islands as they have towards its policies regarding maritime space as the islands are legitimately disputed and completely insignificant as areas of land themselves. China's policies towards maritime space, on the other hand, have been perceived potentially to be expansionist. The parties to the dispute have, themselves, rhetorically played on these concerns by, for example, referring to the

“invasion” of their maritime zones.940

Indeed, some commentators and policymakers have not only conflated the disputes, they have actively used concepts and images more associated with land when discussing the sea. Analysts have mentioned concepts such as “Lebensraum” in their analysis of China's maritime expansionism, which,

940 The Philippines made this complaint when China occupied Mischief Reef, revealing that the island disputes are heavily influenced by states' conceptions of their maritime rights. See Joyner, 'The Spratly Islands Dispute'.

306 clearly, has connotations with dry land.941 Most recently, the Secretary-General of ASEAN has explicitly drawn on a land-based example to explain his concerns relating to the South China Sea. Surin Pitsuwan stated that the South China Sea could become “Asia's Palestine.”942 This language conflates land and sea and depicts the situation as a threat to international security and one that engages issues of expansionism. To be sure, Pitsuwan concentrated mostly on China's claims in the interview, highlighting that it is Beijing's policies that are the major source of concern.

Summary and Assessment

Southeast Asian claimants in the South China Sea have actively campaigned to delegitimise Beijing's ambiguous claims. Partly as a result, China's nine-dashed line claim has been seriously politicised, causing concern within the wider Asian region and beyond. Though outside states have refused to take a position on the territorial dispute, they have called on states to clarify their maritime claims and bring them into conformity with the law of the sea. Although concerns about freedom of navigation have been a key impetus for international attention, the situation is more complex. China's maritime policies have become something of a litmus test for its status quo or revisionist orientation, demonstrating that expansionism is considered highly problematic wherever it takes place. Moreover, concerns about the South China Sea have sometimes conflated land and sea. Indeed, although the territorial and maritime disputes are interrelated, it is notable that claims relating to the latter have attracted serious external attention. It is not simply the case, then, that disputes over land have drawn concern and, in fact, the territorial dispute is widely perceived as normal and unproblematic. Finally, observers have not just conflated land and sea when assessing the South China Sea disputes, they have actively used concepts and images associated with terrestrial spaces when discussing the disputes as a whole. Overall, the understanding of the South China Sea disputes as seriously problematic has reinforced the expressed need to legally regulate the area. This further illustrates the resistance that exists to expansionism in the maritime domain. 941 Garver explains how Lebensraum as a concept has been delegitimised in the west, but that China may not share the same view. Garver, 'China's Push', pp 1018-1020. 942 Ben Bland, 'ASEAN Chief Warns on South China Sea Spats', Financial Times, 28 November 2012, available at: {http://www.ft.com/cms/s/0/c025d896-386b-11e2-981c-00144feabdc0.html} accessed on 26 July 2013.

307 Resolving the South China Sea Dispute

There have been many efforts to encourage regulation, if not the resolution of the South China Sea maritime dispute. As in the Arctic, maritime boundary disputes are understood as a potential source of disorder and proper legal regulation of the South China Sea is regarded as the solution to concerns about territorial conflict and instability. Expert analyses have argued that fidelity to the law of the sea property rights order is a prerequisite for conflict resolution in the South China Sea.943 In the Arctic, the conclusion of maritime boundary agreements resulted, in part, from the perceived potential for disorder, but the South China Sea has typically been seen as a candidate for the establishment of other forms of regulation. 944 Prominent among these has been the proposal for a joint development arrangement to be put in place enabling the resources of the region to be managed and exploited collectively by the claimants. Even Deng Xiaoping himself stated

“sovereignty is ours, set aside disputes, pursue joint development.”945 Indeed, this view potentially supports the notion that China does not see itself as having an exclusive interest in the resources within the waters enclosed by the nine-dashed line. Moreover, any joint development area would, itself, require limits, so the proposal is not so different from the final resolution of maritime boundaries.

However, a joint development regime could not proceed without first determining the area in which shared administration and exploitation of resources would take place. Consequently, a clarification of China's claims in the South China Sea would be necessary before negotiations were attempted. The benefit of a joint development regime is that it could enable China to save face by retaining its legal position relating to the nine-dashed line – whether it is a territorial or maritime claim – while enabling the other claimants to share in the benefits of the resource exploitation within it. However, one analysis has suggested that other claimants would be likely to resist any solution that did not amount to their retention of full rights over the resources of their continental shelves and EEZs.946

Importantly, though, joint development is flexible and there are almost limitless models available.

943 e.g. Robert Beckman, 'The South China Sea Disputes: How States Can Clarify Their Maritime Claims', RSIS Commentaries, 31 July 2012, available at: {http://cil.nus.edu.sg/wp/wp-content/uploads/2010/12/ProfBeckman- RSIS-31Jul2012-TheSCSdisputes.pdf} accessed on 26 July 2013. 944 For a discussion of options, see Valencia et. al., Sharing. 945 Quoted in Fravel, 'China's Strategy', p 312. 946 Davenport et. al. 'Conference Report'.

308 For instance, it might be plausible to subdivide the areas within the nine-dashed line, giving China only token rights relating to areas within the 200 nautical mile zones of other claimants. This position was adopted successfully in areas of the Timor Sea beyond the median line between Timor-Leste and Australia when the treaty reorganising their zone of cooperation was renegotiated. However, there has been no real indication that negotiations for establishing a joint development regime in the South China Sea are imminent.

Therefore, while decision-makers in the Arctic responded to concerns about conflict by entering negotiations to resolve maritime boundary disputes, the South China Sea has yet to see a similar initiative. This situation perhaps reflects the substantially larger area and more complex issues at stake. The efforts to bring more regulation to the South China Sea are unlikely to be abandoned, however.

Putting Things in Context: the Gulf of Tonkin

The Gulf of Tonkin is surrounded by the coastlines of China and Vietnam. It is rich in oil and is home to an important fishery for the two countries. Indeed, it has been reported that some 700,000 – 800,000 Chinese fishermen rely on the living resources of the Gulf.947 The boundary was disputed by China and Vietnam, with the latter arguing that the 1887 convention line that apportioned the islands between the two countries in the

Gulf also delimited the maritime boundary.948 Intriguingly, two further dashes of the U-shaped line map used to extend into the Gulf of Tonkin, but China did not insist on these marking the maritime boundary when it entered into negotiations with Vietnam, instead demanding an equal division of the Gulf. 949 Those negotiations began in the mid-1970s but did not succeed. They resumed in 1993 and the parties eventually agreed a set of principles on which they would proceed. The principles were founded on “applying the

International Law of the Sea and referring to international practices to carry out negotiations on the delimitation of the Tonkin Gulf.” They further committed to deciding the issue “in line with the principle of equality, taking into consideration all circumstances concerned in the Gulf to reach an equal solution.” 950 In

947 Keyuan Zou, 'The Sino-Vietnamese Agreement on Maritime Boundary Delimitation in the Gulf of Tonkin', Ocean Development and International Law 36:1 (2005), pp 13-24, p 16. 948 Keyuan Zou, 'Maritime Boundary Delimitation in the Gulf of Tonkin', Ocean Development and International Law, 30:3 (1999), pp 235-254, p 236. 949 Zou, 'The Sino-Vietnamese Agreement', p 15. 950 Quoted in Zou, 'The Sino-Vietnamese Agreement', p 13.

309 other words, both China and Vietnam committed to negotiating on the basis of maritime boundary law, largely as contained in international case and treaty law.

Beijing and Hanoi succeeded in delimiting a maritime boundary in a treaty signed on 25 December

2000. A parallel fishery agreement was concluded on the same day. The established boundary is 500km long and relates to a maritime area of some 126,000 square kilometres. The agreement ultimately divided the Gulf almost in half, with China actually receiving some 8,000 square kilometres less than Vietnam. The treaty made provision for the joint development of gas or oil deposits that straddled the boundary line and equal sharing of the profits from them. A common fishery zone applying to the central area of the Gulf was also created. The zone is beneficial to China because the richest fishery zones are on the Vietnamese side of the

Gulf. That said, the zone is only to be in existence for twelve years with an automatic extension of three additional years. A transitional period is also provided for Chinese fishermen to adjust their fishing patterns in the Gulf. It is thought that some 12,000 fishermen will abandon fishing as the area of China's traditional fishing grounds has decreased by one third as a result of the agreement.951

The Gulf of Tonkin maritime boundary agreement would, therefore, seem to cast doubt on the notion that China is an unashamed expansionist power in the oceans. The agreement represents an almost textbook case of maritime delimitation that has not officially been challenged since. Indeed, China recently was at pains to emphasise that a cable cutting incident between its fishermen and a Vietnamese survey ship near the

Gulf of Tonkin took place in disputed waters.952 It further reinforces the conclusion that China's claims in the

South China Sea appear excessive because of the geographical complexity of the region and the associated legal uncertainty. Indeed, Zou concludes that

Unlike other areas of contention in the South China Sea, the issue of the Gulf of Tonkin involves no overlapping territorial claims and there is no dispute over the ownership of any islands. It is a dispute of pure maritime character, pertinent only to the delimitation of maritime boundary. The issue could thus be much more easily resolved than other issues in the South China Sea.953

Although geographical determinism should be avoided, it is probably no accident that two of the most

951 Zou, 'The Sino-Vietnamese Agreement', p 16. 952 Bloomberg News, 'PetroVietnam CEO'. 953 Zou, 'Maritime Boundary Delimitation', p 248.

310 intractable maritime disputes in the world – the South China Sea and the Aegean Sea, both involve areas where there are widely scattered islands. Although China's nine-dashed line claim – if indeed it is a maritime claim – has been perceived to be expansionist, it is not as fundamental a challenge to the law of the sea property rights order as it would be in the absence of topographical complexities. The Gulf of Tonkin delimitation goes some way towards demonstrating that China may have taken advantage of legal uncertainty to make a maximum claim in the South China Sea, as do many other states. In short, if the South

China Sea were a less complex maritime area, it is arguable that China would not have behaved as it has.

Conclusion

The South China Sea disputes are very different and markedly more complex than those in the Arctic. There is an overlapping and interrelated territorial and maritime dispute relating to the many islands and other features of the region and their ability to generate maritime zones. All the legal claims to the islands contain weaknesses and the dispute over them is therefore not a breach of the territorial integrity norm. In relation to the maritime dispute, however, the situation is more ambiguous. The Southeast Asian claimants have improved their compliance with the law of the sea property rights order of late, but China maintains an ambiguous stance with regard to the status of the South China Sea. Beijing is popularly reported to have claimed the whole South China Sea, which would appear to challenge the contemporary ocean order contained within UNCLOS. However, China's legal position is far from clear and it has, in reality, been more cautious.

The topographical complexity and that of the legal issues pertinent to the distribution of the South

China Sea have provided opportunities for legitimate legal disputes. Indeed, as discussed in chapter six, the

UNCLOS provisions on islands practically encourage liberal interpretations of maritime entitlements.

Although China's position might go beyond current international law, it is not immediately clear how expansionist it is. Indeed, the ambiguity of Beijing's position suggests that it is unwilling to press a patently illegal claim to the South China Sea. Finally, China has not unilaterally, and through force, exploited the resources of the area, although it has used some coercion to prevent other claimants from so doing. In short,

311 then, China cannot be said to have conquered the South China Sea and it shows no immediate appetite for doing so. At the very least, China makes a claim to ownership that limits any expansionist intentions it may have.

Those perceived expansionist leanings have been a substantial cause for concern both within and outside of the Asia-Pacific region. Indeed, China's compliance with norms relating to maritime space has become something of a litmus test for assessments of its status quo or revisionist orientation. The Southeast

Asian claimants have drawn attention to China's claims and politicised the nine-dashed line map. The result has been that, rightly or wrongly, a substantial portion of the international community now views China's position as untenable. There have, consequently, been calls for Beijing to bring its claims into compliance with the law of the sea and a growing regional and extra-regional consensus on the problematic nature of

China's behaviour. Some of these concerns have exhibited the same blurring of the distinction between the land and the sea that was apparent regarding the Arctic Ocean. There have also been various calls for the legal regulation of the South China Sea.

Although there is much concern about potential forceful Chinese expansionism, its policies in the

Gulf of Tonkin suggest a different story. The maritime delimitation in the Gulf of Tonkin was a textbook case, with China receiving just under half the area in question. The local population dependent on the living resources of the Gulf for their livelihoods have had to seek other work as a result. This situation suggests that, as predicted in Chapter six, it is the legal uncertainties embodied in the law of the sea convention that foster disputes. That China has behaved differently in less complex maritime areas suggests that it may simply be playing a highly strategic bargaining game, at least partly within the context of rules, rather than engaging in unbridled maritime expansionism.

312 CONCLUSION

This thesis set out to fill a gap in our understanding about the politics of the oceans and the behaviour of states towards maritime space. The desire for territory has been one of the most frequent causes of some of the most devastating conflicts throughout history. Latterly, however, international borders have become thought of as inviolable. This decline in the legitimacy of conquest in international society has contributed to global peace and security, but no study has considered its effect on maritime space. Indeed, a territorial-like order was constructed in the oceans in the twentieth century that superficially resembles that on land. Though states expanded in this period, none so far has challenged an existing, mutually agreed, area of maritime jurisdiction belonging to another state. The ocean has been conceived as a very different space to the land, however, and some even consider maritime space to be the antithesis of terrestrial space. These differences make the simple extrapolation of norms associated with land offshore problematic.

The idea that the ocean is distinct from the land has provided the motivation for this thesis. If the ocean is so different, which standards regulate the behaviour of states towards maritime space? How do these standards relate to those regulating the land? Which norms constitute maritime space and how does the political and legal order that has been constructed there reflect them? The title of this work is, therefore, deliberate. This has been a study of international order in the oceans, rather than a study of international order and the oceans. It considers what kind of space the oceans are and how they are conceived by states.

For the oceans are more than a secondary battle space or transport surface, removed from the dominant politics of the land. They are a salient, politicised space, which are conceivably more important today than at any time in history. This study has found that, though maritime space is certainly considered to be distinct, concepts of appropriate behaviour at sea are conditioned by the history of and standards relating to land. Not least among these is the standard proscribing conquest.

I have arrived at this conclusion through several different approaches. First, I tracked the history of maritime regimes, dwelling particularly on the last historical period of extensive claims by states to

313 sovereignty over the seas. I compared the behaviour of states during this epoch with their behaviour since the contemporary maritime order was constructed. This enabled me to show changes in practices that would not easily be explained by theories other than those that take the role of ideas seriously. In order to provide further evidence for my conclusions, I examined the way the ocean and legitimate behaviour towards maritime space was conceived as the contemporary maritime property rights order was constructed. This enabled me to dismiss alternative, materialist explanations, or at least demonstrate how they are incomplete.

Next, I assessed the normative constitution of the maritime property rights order to illustrate how states' conceptions of their interests were socially constructed. These chapters also seek to understand the norms that underpinned the distribution of maritime space; for a legitimate order was understood to be a prerequisite for a stable one. Then, I developed a set of observable implications for the theory that the allocation of maritime space has been stabilised by standards of appropriate behaviour associated with the territorial integrity norm. Finally, I examined two cases of contemporary maritime regions for evidence of these observable implications. These case studies provide further evidence for the existence and effect of the norm at the centre of this study, confirming that states' aversion to expansionism at sea is not mere “cheap talk”. I expand on the findings resulting from these operations below. Overall, each component of my analysis reinforced the conclusion that it is possible to speak of a robust norm proscribing conquest at sea and that it is associated with the experience of and standards relating to land.

The Historical and Contemporary Development of Jurisdiction Over the Oceans

Analysts have typically been interested in the very broad back and forth between periods of ocean enclosure and free seas. However, concentrating on this binary distinction misses much important variation in the character of maritime politics throughout history. During the last period of extensive sovereignty claims over the oceans, in the early modern period, maritime space was politicised to a substantial degree. States sought to extract wealth, power and prestige from their claims to the ownership of maritime spaces. They achieved this through the regulation of navigation and trade and the control of fisheries exploitation. The ocean was also a symbolically valuable space which contributed to the prestige of kings. Maritime disputes were

314 common in this period and issues relating to the control of ocean space were frequently present as a cause of major conflicts. In this context, as on land, the maritime claims of states tended to expand and contract depending on the scale of their material power to impose them.

Added to this, states made claims that were frequently expansive in nature. Though principles were advanced for the extent of national maritime dominions, these rarely had any influence on states' behaviour.

Instead, military forces ranged far and wide in non-European waters, seeking control of maritime spaces that were already utilised by other peoples. Even within European waters, various states sought to exclude others from maritime spaces altogether. In short, there was no conception that states' claims should be limited by the right of other political entities or peoples to use maritime spaces of their own. That said, the ocean continued to be treated as distinct to the land, despite the overlapping governance regimes for terrestrial and maritime spaces. This construction hardened in the free seas period that followed, as the ocean came to be conceived as the antithesis of the land.

The period in which Grotius' conception of maritime space as res communis reigned was also one of unprecedented peace in the oceans. The desire to control maritime space ceased to be a major cause of international conflict. Increasingly, the ocean was viewed as a space useful for transporting goods and maritime resources were considered to be inexhaustible. In other words, the free seas regime was beneficial to everybody. It mandated the limitation of states' control of the oceans to a very narrow band of waters off their coasts. The canon-shot rule, whereby that jurisdiction was coterminous with the range of land-based artillery, reflected the continuing influence of conceptions about effective control and coercion in international politics at the time. However, the free seas regime came increasingly under strain in the twentieth century as marine resources began to be over-exploited and offshore hydrocarbons became recoverable.

The first calls for ocean spaces to be brought under exclusive national control again were resisted by the major maritime powers. It was not until 1945, with the issuing of the Truman Proclamation on the resources of the continental shelf, that a new era of maritime enclosure dawned. Many countries followed the

American precedent, but some expanded upon it. An attempt to bring order to the patchwork of claims that

315 had emerged took place at the first United Nations Conference on the Law of the Sea in 1958. Its failures and that of a further conference in 1960 led to calls for the comprehensive regulation of maritime space. A final law of the sea conference ran for much of the 1970s and early 1980s and resulted in the UN Convention on the Law of the Sea. The Convention codified the major maritime zones we still have today, including the continental shelf regime, the exclusive economic zone and the territorial sea. Since these zones were created, and indeed since states asserted control over the continental shelf, there have been no efforts forcefully to revise agreed international boundaries. States have also exhibited a remarkable degree of compliance with the limits for maritime zones embodied in UNCLOS. None has sought to assert control over offshore resources beyond 200 nautical miles from their baselines, except those entitled to do so by the presence of an extended continental shelf.

This picture is in stark contrast to the behaviour of states during the last period of major maritime enclosure in the early modern period. In short, when conquest was legitimate on land, there was instability in the claims of states to maritime jurisdiction. The illegitimacy of conquest has been associated with stable maritime as well as terrestrial boundaries. Theories that point to the role of the distribution of power in international society have attempted to account for the shifting patterns of state jurisdiction over the oceans.

However, they have only tentatively demonstrated the role of this variable in the broad back and forth between ocean enclosure and free seas. Concentrating instead on ideas, rather than only material power, has enabled this thesis to account for patterns of behaviour simply not contemplated, much less explained by alternative theories. The practices of states towards maritime space correlate with the changing construction of appropriate behaviour towards land – particularly the decline of conquest. However, they also correlate with changing economic systems. This potential multicollinearity necessitated examining how states framed the oceans and appropriate behaviour towards maritime space as they built the property rights order there.

Territoriality and Security in the Oceans

States have an interest in the oceans remaining friction-free because of the role they play in the international trading system. Some states also use the oceans to project force abroad. However, if these were the only

316 reasons for the striking level of order in the oceans apparent today, we would expect a standard proscribing conquest to have a prominent place in UNCLOS. After all, these concerns drove the inclusion in the treaty of other strong statements of principle, such as the requirement to settle disputes peacefully and not claim sovereignty over the high seas. Curiously, the Law of the Sea Convention does not contain a proscription relating to conquest equivalent to Article 2(4) of the United Nations Charter. Indeed, it does not even contain language that could be considered comparable to that standard. Moreover, the development of the taboo proscribing conquest took place as a response to experiences on land and was conceived primarily to outlaw forceful territorial expansionism there. As the norm developed and was codified in various instruments, maritime space was barely conceived as anything more than a space on which battles play out. It might be argued that the economic interest in peaceful seas was so taken-for-granted that the illegitimacy of maritime conquest went without saying. This explanation is belied by provisions in UNCLOS on maintaining the high seas for peaceful uses and on the peaceful settlement of disputes, however. The way the ocean and legitimate behaviour therein was framed in the negotiations that crafted the modern law of the sea further reinforces the notion that states' policies and concerns were influenced not only by economic interests, but by the historical experience with land.

Indeed, the potential that maritime space could become subject to contestation and competition was widely appreciated by decision-makers. Some have pointed to the idea that it is difficult effectively to occupying water and the perception that the oceans are simply not sufficiently salient to cause conflict.

However, decision-makers did not fail explicitly to outlaw conquest at sea because of either of these conditions. Indeed, during the negotiations that crafted UNCLOS, decision-makers failed to discuss the illegitimacy of conquest, not because the oceans were considered a wholly distinct space to land. Instead, it was assumed the norm proscribing conquest applied unproblematically at sea because the ocean was conceived in land-like terms. This carried over into concerns about the type of conflict that might occur there: states did not wish to repeat the violent history of unrestrained territorial conflict that had taken place on land. The construction of a maritime property rights order was understood as a solution to the possibility for conflict to occur, a position which took for granted – and by doing so further enshrined – the illegitimacy

317 of conquest at sea. In short, notwithstanding the differences between the two spaces, the experience with, and norms relating to, the land conditioned the understandings of states relating to appropriate standards of behaviour at sea.

Nevertheless, the ocean continued to be constructed in other respects as a very distinct space to the land. In fact, the sea has been conceived in strategic and instrumental terms – little more than a transport surface or a space to be exploited for its resources. Ocean spaces would appear to lack the same symbolic salience as the terrestrial spaces of the state. That said, a peaceful ocean order was understood to be conditional on a legitimate distribution of maritime space. Any distribution of maritime space could bring order to the oceans, but states clearly understood the particular allocation they had established as likely to contribute not just to order, but to peace and security. Indeed, despite the construction of the ocean as a formless void outside of the state, maritime space was not allocated in a normative vacuum. States understood the boundaries they constructed to reflect fundamental international standards of fairness. The interaction of this with the norm proscribing conquest can be understood as a major cause of the striking level of stability that has existed in the contemporary ocean order.

The Normative Constitution of Maritime Space

The ocean has long been considered common property in which every state has a legitimate interest. This was manifested in the doctrine of the freedom of the seas which enabled the nationals of every country to participate in the use of maritime space and the exploitation of its resources. The defenders of this regime justified it by appealing to the equality inherent in this system. However, the supporters of the enclosure of maritime resources within national and international zones used the same argument that the ocean was property in which all states had a legitimate interest. Except they said they could not fully utilise their rights under the freedom of the seas because of the technological superiority of the developed states. Instead of equal access to marine resources, they wanted an equal opportunity to exploit them. This required maritime space and the resources within it to come under the exclusive control of coastal states. Therefore, maritime states justified free seas using an equality argument, but developing states turned this argument against them

318 and used it to justify maritime enclosure. This universal fundamental consensus that the ocean was a property in which all states had a legitimate interest dictated that each coastal state would be entitled to its own maritime zones allocated based on a spatial conception of fairness.

However, maritime space is not geographically detached from the land. Therefore, each coastal state was to be granted its own maritime resource zones based on the concept that the land dominates the sea.

Decision-makers at the conferences – and indeed before it – considered it natural that they would gain rights to regulate and exploit the resources of their own maritime backyards. The areas proximate to coastal states were understood to have a series of natural, economic and security connections with the land that made them socially significant spaces for the societies that inhabited those terrestrial spaces. Thus, the land once again exercised its influence on this construction of the maritime property rights order. It also did so in ideational terms as the distribution of maritime space was seen as a part of the decolonisation process. Not only had the allocation of terrestrial space been unjust because of the violence which had resulted, it had led to inequitable results that states had argued should not be repeated at sea. Post-colonial states, in particular, saw the taking of resources off their coasts as theft of their rightful property – similar to the imperial exploitation of their land and peoples.

Added to this, the compartmentalisation of maritime space embodied a peculiarly modern logic; one that is itself allied to the contemporary construction of terrestrial space. It was the notion that limited areas belonged legitimately to the coastal state and that the areas proximate to, and under the control of, other states were none of its concern. After all, European states made expansive claims in non-European seas in the last period of maritime enclosure in much the same way as they made expansive claims on land as they built their empires. They even sought to exclude their neighbours in Europe from the oceans. In the twentieth century, maritime spaces were politicised and subject to national ambition, but that ambition was contained to coastal states' own back-yards. The notion that the spaces of other countries should or could be subject to the attention of foreigners was delegitimised in this construction of the oceans, as it has been on land. In other words, the constitution of maritime space reinforced and reflected the illegitimacy of the practice of conquest and expansionism at sea. Moreover, the basic consensus on an appropriate distribution of maritime

319 space persisted throughout the various conferences that created the modern law of the sea.

By the time of the third law of the sea conference, land-locked and geographically disadvantaged states raised concerns about the shape of the maritime order that was emerging. They argued that the allocation of maritime space, based on the consensus from early moves to enclose it, disproportionately benefited developed countries. It was they that would receive the largest exclusive economic zones and continental shelves because they fronted large areas of unobstructed ocean. Nevertheless, the proposals these opponents advanced in an effort to modify the maritime property rights order did not seek to challenge the basic consensus of the ocean as international property in which all states had a legitimate interest. In fact, their concerns reinforced this perspective. Their proposals sought to modify the allocation of maritime space without challenging the consensus that every state would receive rights to utilise maritime spaces geographically proximate to them. The ultimate plan implemented in UNCLOS, however, was that land- locked and geographically disadvantaged states would be granted a set of non-territorial rights to compensate them. These states were to receive preferential rights to exploit the surplus resources in the zones of neighbours and a percentage of revenues from the development of the extended continental shelf.

Even the defection of the major maritime developed states from UNCLOS did not foretell an end to the consensus on the allocation of maritime space contained within the treaty. The maritime states sought to challenge the regime for exploiting the deep seabed, the resources of which are the common heritage of humanity. In so doing, they did not try to alter the boundaries of the area or extend their exclusive jurisdictions seaward. Instead, they established legislation and made treaties that purported to regulate mineral exploitation on the basis of the freedom of the seas. The eventual so-called implementing agreement signed in 1994 in New York altered the principles of deep seabed mining in the interests of powerful states.

In particular, the maritime states sought a privileged position in the governance organs of the International

Seabed Authority. Again, however, the allocation of maritime space remained unchanged.

The maritime property rights order has, therefore, already stood the test of time. Since the finalisation of the regime, there have been no efforts forcefully to revise the allocation of ocean space. In part, this can be attributed to the institutionalisation of a maritime property rights order within a normative

320 context that has delegitimised conquest. This normative context is not simply a result of ideas about the utility of war. It is also a product of ideas about the legitimate allocation of territory, whether on land or at sea. In short, states are understood to be entitled to the enjoyment of their own marine spaces without them being subject to outside interference or capture. Moreover, the idea that some maritime areas are naturally associated with particular states serves further to reinforce the illegitimacy of challenging their rights to them. The effect of these norms is not to eliminate the possibility of conflict over maritime spaces altogether, but it should limit it significantly.

Maritime Disputes

UNCLOS, and the norms which underpin it, have contributed to international peace and security. However, the implementation of the property rights regime contained within the treaty remains incomplete. Many maritime boundaries remain to be definitively set worldwide. A principle that proscribes the forceful alteration of boundaries might be thought to be one with little purchase under these conditions. However,

UNCLOS contains a set of rules to guide the drawing of maritime boundaries and limits. Some of these rules have been clarified through judicial decisions and state practice. In order not to violate a rule proscribing conquest, states cannot legitimately seek to expand their maritime spaces in ways contrary to these rules.

However, like all but the simplest rules, those relating to the drawing of maritime boundaries and even the establishment of maritime limits, contain ambiguities and uncertainties. States can legitimately disagree about the placement of a particular boundary, and even seek to acquire these disputed areas, without breaching the norm proscribing conquest. For conquest involves the forceful acquisition of the legitimate property of another state. In cases of legitimate boundary disputes, the area in dispute is not clearly under the ownership of any of the parties to the dispute. In short, though problematic, a border dispute or even a border war is not equivalent to an act of conquest.

In fact, a legitimate boundary dispute reinforces the norm proscribing conquest. The act of making a boundary claim based on legitimate legal principles by its nature recognizes that the waters beyond the disputed area are legitimately under the jurisdiction of a neighboring state. Disputes conducted within the

321 vocabulary provided by case law and treaties reinforce the importance of the law in legitimizing claims and, concomitantly, the inviolability of legally established boundaries. Most states, indeed, make legal arguments in support of their positions when they engage in maritime disputes with their neighbours.

That said, expansionism has been perceived to exist, or be imminent, in two contemporary maritime regions. Both the Arctic Ocean and the South China Sea have seen behaviour and policies that have been interpreted as assertive and potentially a signal of revisionist intentions. Russia planted its flag on the seabed at the north pole and China has deployed a map with a nine-dashed line that encloses much of the South

China Sea. Both of these actions have attracted substantial media and political interest. In the case of the

Arctic, the substantial politicisation that occurred in the aftermath of Russia's polar mission revealed the blurring of the land-sea distinction witnessed as the law of the sea property rights order was constructed.

Importantly, it led to the reinforcement of the norm proscribing conquest. All the coastal states in the Arctic agreed that UNCLOS would regulate the region, despite the apparent possibility for other legal principles to do so, and they pledged to resolve their disputes in an orderly fashion. The disputes themselves have arisen from legitimate legal disagreements about where boundaries should be set. Nevertheless, the coastal states have continued positive cooperation in the exercise of their maritime rights, either agreeing to delimit disputed maritime boundaries or pledging to do so. In the case of the Arctic, therefore, political pressure generated by concerns of disorder has generated an impetus to finally settle the distribution of maritime space. This serves to reinforce the peace and security of the region.

The South China Sea, on the other hand, has been more complex than the Arctic Ocean. China is popularly reported to have claimed almost the whole South China Sea. But while it has deployed a map featuring a line composed of nine dashes that enclose the majority of the South China Sea, China's official policy has been ambiguous as to what the line represents. Although Beijing would appear to make a claim to historic rights within the line, the degree to which the claim contradicts UNCLOS is unclear. Importantly, the

South China Sea is topographically complex and the legal issues pertinent to its distribution contain serious uncertainties. The area is, moreover, home to a mixed territorial and maritime dispute as the ownership of the

South China Sea Islands, some of which might potentially generate maritime zones, is unclear. This situation

322 facilitates legitimate disputes and renders the degree of even China's most extreme potential challenge to

UNCLOS less severe than such an expansive claim would be in a simpler maritime setting.

Nevertheless, despite the ambiguity of China's policies and intentions, the other claimants in the dispute have sought to politicise Beijing's purported claims. They have succeeded in drawing international attention to the nine-dashed line. Although outside states have for the most part refused to take sides in the dispute over the islands, there have been calls for overlapping maritime claims to be settled peacefully and for states to comply with the law of the sea. Perhaps more important is that China's South China Sea policy is regarded as something of a litmus test for its status quo or revisionist intentions. In short, it is not just China's rising power that has attracted international concern, but perceived indications of the ends to which that power will be put. This illustrates that expansionism is regarded as highly problematic whether it occurs on land or at sea.

Moreover, China's cautious approach to the South China Sea issue, evinced by the ambiguity of its legal position, suggests that its behaviour is conditioned by the norm proscribing conquest, even if it has not fully internalised it. Importantly, despite the ambiguities in its position, China has stressed repeatedly that its claims in the South China Sea have a basis in law. Beijing has not, therefore, sought to restore the legitimacy of conquest in relationship to maritime space. Indeed, regardless of the very real material and social differences between land and sea, China has not even sought to justify any expansionist policies by trying to exploit these distinctions. Instead, China's behaviour has reinforced the blurring of the distinction between maritime and terrestrial spaces when it comes to standards regulating them. In short, conquest is considered problematic wherever it occurs. That this standard is one of the most widely agreed and repeatedly reaffirmed in international society provides a strong basis for continuing peace and security in the oceans.

Moreover, the South China Sea case would seem also to illustrate one of the central claims of this analysis: peaceful seas are the result of an interdependent relationship between the proscription of conquest and an allocation of maritime space that is understood to be legitimate. China's claims have been perceived to challenge the order established in UNCLOS and its purported jurisdiction would intrude upon the maritime back-yards of other states. Arguably, it is for this reason that the South China Sea is regarded

323 widely to be one of the major potential conflict flashpoints in international society today. As a consequence, it would appear that the possibilities for sustained peace in the oceans will be improved if states comply with the property rights order instituted in UNCLOS. Though the treaty is not perfect, the allocation of maritime space it mandates chimes with fundamental norms in international society far more than an order based on coercion and forceful expansionism. Therefore, a return to a world in which space is allocated by force would not only be an immediate cause of conflict, it would sow the seeds for continuing international insecurity. Compliance with UNCLOS, on the other hand, will contribute to continued international order in the oceans.

Implications of the Theory

States' behaviour at sea is complex and multifaceted, reflecting the fact that they use the oceans for activities ranging from projecting force and gathering intelligence to the transportation of goods and extraction of resources. Consequently, many different explanatory variables explain the behaviour of states at sea. The theory contained within this work has attempted to explain just one of the many issues relating to the sea – the behaviour of states towards the resources maritime space contains. The account provided here argues that norms constrain the behaviour of states in this aspect of their practice. This does not mean that norms powerfully constrain all the activities of states at sea. In fact, this analysis does not even suggest that power politics have been or will continue to be completely absent from the distribution of maritime space in international society. Throughout the negotiations that created the law of the sea property rights order, states used their bargaining resources to gain as much maritime space as they could. However, there were also limits provided by the fundamental consensus that every coastal state was entitled to administer its own back yard.

Given that the law of the sea treaty has not been fully implemented and the allocation of maritime space is incomplete, there is still room for states to contest the legitimate placement of maritime boundaries.

Such contests, even if they became violent, would not breach the norm proscribing conquest because it most clearly prohibits the acquisition by force of areas legitimately under the jurisdiction of another state.

324 Disputed spaces, by definition, cannot clearly be said legitimately to belong to one state or another. Power resources may be used in these disputes, but those exercises of power will be constrained by the real limits provided by the legal rules on maritime boundaries and the standards of legitimate behaviour that give them meaning. This situation contrasts with circumstances on land where many more territorial boundaries have been definitively decided. Consequently, there is potentially greater room for unrest and even conflict over maritime space. The implications of the existence of a norm proscribing conquest at sea, therefore, potentially would have a more limited impact on the frequency of conflict than on land. However, this remains something of an open question given the causal pathway identified in chapter seven on the Arctic

Ocean. There, the fear of territorial conflict over disputed areas of ocean was actually one factor that encouraged states to conclude maritime boundaries to prevent disorder. This reinforces the stability of the

Arctic Ocean insofar as concluded boundaries cannot legitimately be forcefully challenged without breaching the norm proscribing conquest.

That said, in the South China Sea, the fear of conflict over disputed maritime areas has not had such conclusive results. There have been notable efforts to introduce some legal regulation of relations with regard to disputed maritime spaces and islands. However, these have achieved limited success and there have been no official initiatives to negotiate definite maritime boundaries or to conclude a joint development arrangement. The evidence for the influence of the experience with territorial conflict on the behaviour of states towards disputed, as opposed to undisputed, maritime space is, therefore, mixed. Consequently, the possibility for maritime disputes to become violent cannot be discounted as the norm proscribing conquest most clearly prohibits the acquisition by force of undisputed rather than disputed areas. However, in the event that such a conflict does take place, it should be more limited in spatial terms and, to that degree, potentially also more limited in the scope of violence and its implications for international peace and security. Moreover, the fact that such a conflict would not breach the norm proscribing conquest might lead other states to be less inclined to become involved, which might dampen the possibilities for serious escalation further.

Having said that, the theory explored in this work also cannot definitively predict that no state will

325 choose to breach the norm proscribing maritime conquest. To be sure, norms themselves cannot prevent proscribed actions from taking place. However, the threshold for undertaking such a policy should be substantially raised by the contemporary illegitimacy of such behaviour. As the South China Sea case demonstrates, even states growing exponentially in their power resources and with declared positions that could conceivably challenge the law of the sea property rights order have not simply acted on apparent expansionist impulses. In the event that a state does take the final decision to engage in maritime territorial revisionism, this would not necessarily be equal to the destruction of the norm proscribing conquest at sea.

Norms are inter-subjective; they exist within the collective imaginations of actors in international society, whether they be state decision-makers, non-governmental elites or the public at large. In the event that a state breaches such a standard of behaviour it is likely that others will react swiftly against it. They might do so militarily, or through diplomatic means – perhaps by refusing to recognise the legitimacy of the acquisition of maritime space achieved through forceful means. Indeed, states that value the order created in UNCLOS, not only for its success in achieving peace and security, but also for its perceived fairness, should take opportunities to diplomatically oppose indications of non-compliant behaviour. This would reinforce the taboo proscribing conquest and shore up its contribution to international peace and security.

The transformation to a world in which unrestrained territorial conflict becomes legitimate is also not inconceivable. However, that the norms underpinning UNCLOS and the fear and disapproval surrounding conquest appears to be both deeply internalised and widespread militates strongly against this outcome.

Indeed, constructivist predict much greater “stickiness” in international practices than other international relations theories. Norms – particularly those that are widely shared and internalised – are resistant to change even in the face of alterations in the distribution of power and other variables. That states have not, so far, sought to challenge the norm proscribing conquest in their policies towards maritime space bodes well for its continued robustness going into the future. Hopefully, the world can, therefore, be assured of a higher level of international order in the oceans than other theories might predict for a comparatively long time to come.

326 Weaknesses of the Research

This thesis considers only the limited question of the influence of the contemporary illegitimacy of conquest on the behaviour of states at sea. It could be suggested that this question is too restricted and, therefore, has not resulted in significant findings. Indeed, it has already been conceded that the theory does not predict a lack of conflict over maritime space and that the conduct of states engaged in legitimate maritime boundary disputes is outside the purview of its predictions. However, this work can be viewed as an important first step on which future research can build. It has sought to test and explore a series of hypotheses about the influence of thinking about the land on the conduct of states at sea. The positive results of this work are, therefore, an important prior step that can be drawn upon to analyse other maritime political dynamics.

It could also be argued that the findings of the research are in some way trivial. The work was animated by the original impulse that the land and sea are wholly distinct spaces. The most pertinent task, therefore, seemed to be to understand which norms regulate the behaviour of states towards maritime space given those differences. The finding that the same sorts of social understandings affect the behaviour of states on land and at sea may be thought simply to tie up a loose end. Conquest, wherever it takes place, is illegitimate. The differences between land and sea in no way made this finding self-evident, however, and so working through the logic and evidence for it was necessary. Moreover, this work has not simply straightforwardly extrapolated the findings about the decline of the legitimacy of conquest on land to maritime space. It has also illuminated some important distinctions between land and sea. The sea remains a different kind of realm, which makes it all the more surprising that the injunction against conquest would appear to be so robust there. Dynamics like these in the creation and operation of norms could usefully be further explored, as discussed below. Moreover, it remains key that the distribution of maritime space is wholly different to that on land, with a different rationale and normative basis. Norms legitimise the distributions of space in both realms, but those norms are different and so it would not be correct to suggest that exactly the same bundle of ideas contribute to stability on land and at sea.

The theoretical significance of the work aside, further criticisms could be made about the methodological approach that has been taken. It might be suggested that focusing on law-making

327 conferences, for example, only provides a limited snapshot of the way the oceans are framed and how legitimate behaviour towards maritime space is understood. Casting the net wider by examining sub-state actors might have led to different conclusions, or, alternatively, strengthened the findings of this study by demonstrating an even higher level of internalisation of the norm. While other actors have indeed contributed to norm development, contestation, implementation and breach, it is the contention of this analysis that it is important, as a prior step, to understand the thinking of individuals who implement the very foreign policies this study is designed to assess. Though evidence for different views might have been found outside of the law-making conferences, they provided a unique location for studying the presence and influence of inter- subjective understandings that guide states in the conduct of their international relations. Moreover, the case studies were utilised in order to provide further evidence of the influence of the norm in concrete circumstances partly in order to ameliorate concerns that the law-making conferences provided an overly positive picture of states' maritime policies. With this in mind, a wider range of sources of evidence were employed in my analyses of the Arctic Ocean and South China Sea.

That said, the case studies have been limited in terms of their ability to contribute to definitive conclusions. As noted above, there are no cases of breaches of the norm that is the subject of this work. Such cases are frequently assessed to determine both the existence of the norm and its robustness, as breaches of strong norms are often followed by attempts to defend them and restore the status quo. The cases employed here have not involved a serious breach of the norm, but, rather, behaviour that has been understood as somewhat challenging or perhaps as indicating intentions to breach the norm. Consequently, it is largely speculative as to the level of opposition that a concrete case of breach would inspire. The work on territorial expansionism on land benefits from a much wider array of cases, which arguably enables firmer conclusions to be reached. Indeed, coming to a definitive conclusion about whether the norm proscribing conquest really is as robust at sea as on land has been difficult. However, the association between the two norms would appear to point in the direction of the norm being a particularly important one, the differences between land and sea notwithstanding.

The case studies are conceivably problematic in additional ways: the data in them has been drawn

328 from academic analyses, media articles and government documents. It could be argued that these sources do not provide a level of detail necessary to come to concrete and convincing conclusions about the determinants for state behaviour in the cases. This criticism is potentially at its strongest with regard to the

South China Sea case study, where it was not possible to come to a definitive conclusion about China's level of internalisation of the norm proscribing conquest. It might have been useful to conduct interviews with policy-makers to gain a detailed insight of the way they responded to the disputes. In particular, gaining insights into private decision-making might have proved useful in order to come to richer conclusions.

However, it is by no means certain that an attempt to acquire more in-depth data would have been successful. In particular, the South China Sea case is a live one and it is a highly sensitive foreign policy issue. Consequently, achieving greater access to information would likely have been difficult or impossible and there would be a considerable potential for any available information to be biased. Even interviewing those near, but not involved with policy-making, such as academics, might have added little value because of the difficulties of gaining information that is not in the public domain. Besides, norms exist on an inter- subjective level and so assessing the degree of consistency with them in public statements is useful. Aligning behaviour with these statements has enabled me to plausibly show at least a limited influence of the norm proscribing conquest on China's behaviour. This conclusion does tentatively illustrate the causal influence of the norm and, again, could be built upon with future work in order to provide a more robust account of the determinants of China's policies.

The case studies could also arguably have benefited from more definitive tests of competing explanations for the observed outcomes. However, it was made clear from the outset of this study that the stability of the contemporary maritime property rights order is over-determined. Clearly, for example, policy- makers will be alert to the possibilities of economic disruption caused by conflict over maritime space, including reduced trade and stock market disruption. This might dampen their enthusiasm to use force to acquire control of marine resources. However, it would be difficult to separate out the influence of variables such as perceptions of economic interests from other explanatory factors. For that reason, the case studies were designed to look for evidence of the existence of the norm proscribing conquest and its effect on

329 policy-making because it is understood as a necessary, not sufficient, condition for the stability of the maritime property rights order. Indeed, arguably, the present normative context in which the acquisition of territory belonging to another state is not legitimate is necessary for the operation of other variables that explain the stability of the contemporary maritime order. In this sense, the norm operates at a deeper level of causation than economic and security interests. For example, companies might react negatively to the coercive distribution of maritime space, but only because such behaviour is perceived to be taboo and unusual, rather than an expected pattern of events.

Overall, then, while this project could not achieve a level of absolute certainty in relationship to some important issues, and while the theory has limitations, it makes a useful contribution in a number of respects. It helps to explain important real world political phenomena relating to maritime space in an era in which the oceans are more important than at any time in history. No theory can account for everything, but the one presented here makes a start at examining political dynamics within a space that has not typically been studied in International Relations. It also provides a basis on which future research can build.

Intellectual Contribution and Future Research

The second half of the twentieth century witnessed the construction of a territorial-like order in the oceans.

The partial dismantling of the free seas regime led to states gaining varying levels of control over vast extents of maritime space. Despite these developments, the oceans have largely been ignored in the major theoretical debates in the discipline of International Relations. As a consequence, we have hitherto had limited tools for understanding why states behave as they do towards maritime space and the resources within it. This work has attempted to fill this gap in our knowledge of maritime political dynamics and to make up for the weaknesses in existing theoretical explanations.

Indeed, though existing international relations theories could potentially be elaborated to provide an account of states' practices at sea, their predictions are either inaccurate or under-specified. For example, realists consider the state to be the central actor in international relations and the object of security, but their implicit focus is on the state as a land-based entity. Some realists predict that states will seek to expand their

330 territories if presented with an opportunity to do so. Given the contemporary importance of maritime space and the resources it contains, it is hard to see why states should not take the same approach towards the oceans. If states were orientated towards revisionism in this way, a relatively high degree of instability in states' administration of maritime spaces should be expected. That the reality is much different, however, undermines this kind of realist explanation for the behaviour of states towards maritime space.

Additionally, the focus of realists on security has tended to de-politicise the oceans, constituting them only as a secondary space on which the dominant politics of the land play-out, rather than a salient political space in their own right. Though the need to retain the ocean as a friction-free transport surface provides a potential explanation for peace, it cannot explain the absence in UNCLOS of a standard proscribing conquest. Moreover, the realist conception of maritime space is socially-conditioned; it is an understanding of the oceans that has not been dominant throughout history. Thus, realists cannot account for the changing dynamics of maritime politics without introducing other, ideational, variables into their analyses.

Similarly, other explanations for the behaviour of states towards maritime space do not problematise how states conceive of their interests and the factors that generated those interests. For example, those that suggest states have material interests in maintaining the contemporary maritime order do not assess the deep consensus on appropriate behaviour that underpinned the consensus as the law of the sea property rights order was created. Others who point to the importance of economic interests do not consider how these might be underpinned by deeper inter-subjective understandings of what is appropriate behaviour. This work has demonstrated how the law of the sea property rights order was crafted within a deep normative context that makes some choices in the world appear natural, while others are viewed as deviant and highly problematic. It has, therefore, demonstrated that an analysis of the ideas that condition the contemporary understanding of legitimate behaviour in the oceans is necessary to provide a full account of the dynamics of state behaviour towards maritime space.

Indeed, constructivists consider that states interests are not given, but rather they are socially constructed. Ideas constitute the material world and states' identities and they also regulate their behaviour. A

331 constructivist approach is, therefore, more attuned to change in international relations that cannot be explained by materialist analyses. However, relevant constructivist works in international relations have tended to neglect maritime space as well. Steinberg's work has considered how the ocean is conceived: its primary conclusion is that most maritime space is constructed as the antithesis of the land. This work has provided a useful starting point for understanding the role of the oceans in international politics. Other relevant constructivist studies on the nature of conflict over territory have largely ignored maritime space, however. The present study has, therefore, built on and expanded existing work on the oceans. It has done so by filling the gap left by other constructivist studies on the political dynamics of conflict and contestation over territory. In bringing these two literatures together, I have demonstrated that they are not as separate as it might first appear. This insight could also be considered when thinking about other international legal rules.

To be sure, this work has argued that the consensus on some of the law of the sea convention rules was partly or wholly informed by the experience with land. Simply considering what the law of the sea treaty does and does not mandate misses its relationship with other legal and normative standards in international society, not typically associated with the oceans. Taking a constructivist approach has enabled me to take seriously the embeddedness of law within webs of social understandings. This has enabled the present work to understand changes in patterns of state policy towards maritime space over and above the simple back and forth between periods of free seas and ocean enclosure. The analysis of legal rules can, therefore, be more comprehensive through detailed assessments of the social origins of those rules. Such examinations should be undertaken with a view not only to assessing what treaty-framers meant by the terminology they included in legal documents, but to understanding how those rules were conceived and by examining their associations with other norms that regulate international society.

Indeed, this thesis also contributes to thinking about international law more generally and the sources of compliance with it. Law-making involves varying levels of compromise and trade-offs. The Law of the

Sea Convention has been understood as a package that is a product of this process. However, assessing the convention as a monolithic whole obscures much of the variation in how individual rules were conceived by

332 states. Put simply, some rules were more contested than others and this contestation was the product of a lack of consensus about appropriate standards of behaviour in international society. The rule proscribing conquest, on the other hand, was so deeply taken for granted that it was not even openly discussed at the conferences that crafted the modern law of the sea. Similarly, the idea of the ocean as an international space in which all states have an interest was not challenged, even by the most powerful states. These rules are, therefore, arguably far more robust than those relating, for example, to free navigation for warships or marine scientific research. By disaggregating treaty rules, the approach this dissertation has taken, consequently, provides a more fine-grained account of treaty compliance and success.

Other studies have similarly examined the role that bundles of norms have played in the development of new standards. For example, scholars have examined the framing efforts of campaign groups in seeking to outlaw the use of landmines,954 the combination of economic development and environmental protection norms,955 and the linking of chemical weapons to fears surrounding poison.956 Others have pointed to the strong effect on their successful development of associations between new norms and existing norms relating to bodily integrity or equality. Indeed, there has been much focus in international relations on more or less deliberate cases of norm generation. Much less focus has been placed on theorising how norms develop or expand in instances without conscious intervention by agents. This work could serve as a basis for exploring these issues further. Other cases could be examined to establish the conditions under which existing norms are automatically assumed to regulate behaviour in settings other than those in relationship to which they emerged.

Specifically in the maritime context, exploring the dynamics of boundary disputes could foster a greater understanding of patterns of war and peace in the oceans than the present work has been able to offer.

In particular, filling the gap in our understanding of why maritime boundary disputes escalate to confrontation or, alternatively, why they are easily settled would be a key task. Exploring further the mechanism identified in the Arctic Ocean case, whereby the fear of disorder drove maritime boundaries to be

954 Richard Price, 'Reversing the Gunsights: Transnational Civil Society Targets Landmines', International Organization, 52:3 (1998) pp 613-644. 955 Steven Berstein, The Compromise of Liberal Environmentalism, (New York: Columbia University Press, 2001). 956 Richard Price, 'A Genealogy'.

333 concluded, could be a useful start. It would be important to establish why the South China Sea disputes have not taken the same path of easy resolution. Further useful research that could contribute to this effort would be to assess the degree of internalisation of the norm proscribing maritime expansionism within China. This work could, then, make useful contributions to other literatures; for example, those relating to the propensity of states to settle their disputes through judicial means. For, to date, the maritime realm has been one in which robust international legal regulation has been created. This has contributed to international order in the oceans, so understanding why and how it does so is a key ongoing task.

334 References

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345 Globe and Mail, 21 September, 2010. available at: {http://byers.typepad.com/arctic/2010/09/canada-take- note-heres-how-to-resolve-maritime-disputes.html#more} accessed on 25 July 2013. Lovett, Richard A., 'Russia Plants Underwater Flag, Claims Arctic Seafloor', National Geographic, 3 August 2007, available at: {http://news.nationalgeographic.com/news/2007/08/070802-russia-pole.html} accessed on 16 July 2013. Macalister, Terry, 'Rush for Arctic's Resources Provokes Territorial Tussles', The Guardian, 6 July 2011, available at: {http://www.guardian.co.uk/world/2011/jul/06/arctic-resources-territorial-dispute} accessed on 24 July 2013. ------'Climate change could lead to Arctic conflict, warns senior Nato commander', The Guardian, 11 October 2010, available at: {http://www.guardian.co.uk/environment/2010/oct/11/nato-conflict-arctic- resources} accessed on 24 July 2013. Mahoney, Jill, 'Canadians rank Arctic sovereignty as top foreign-policy priorit', The Globe and Mail, 24 January 2011, available at: {http://www.theglobeandmail.com/news/politics/canadians-rank-arctic- sovereignty-as-top-foreign-policy-priority/article1881287/} accessed on 24 July 2013. Malig, Jojo, 'Will US Defend Philippines if China Attacks?' ABS-CBN News, 25 July 2012, available at: {http://www.abs-cbnnews.com/-depth/07/25/12/will-us-defend-philippines-if-china-attacks} accessed on 26 July 2013. Pearce, Fred, 'Arctic sea ice may have passed crucial tipping point', New Scientist, 27 March 2012, available at: {http://www.newscientist.com/article/dn21626-arctic-sea-ice-may-have-passed-crucial-tipping- point.html} accessed on 17 September 2013. Perlez, Jane, 'China Fuels Fear of Maritime Escalation', Sydney Morning Herald, 2 December 2012, available at: {http://newsstore.fairfax.com.au/apps/viewDocument.ac;jsessionid=A59819F1AAB3A07B48F96187C39 7A008? sy=afr&pb=all_ffx&dt=selectRange&dr=1month&so=relevance&sf=text&sf=headline&rc=10&rm=200 &sp=brs&cls=19050&clsPage=1&docID=SMH121203JPM0R7AJ4M0} accessed on 26 July 2013. 'Philippines to Host Meeting on South China Sea Disputes', Voice of America, 21 November 2012, available at {http://blogs.voanews.com/breaking-news/2012/11/21/philippines-to-host-meeting-on-south-china-sea- disputes/} accessed on 26 July 2013. Posner, Eric, 'The New Race for the Arctic', Wall Street Journal, 3 August 2007, available at: {http://online.wsj.com/article/SB118610915886687045.html} accessed on 24 July 2013. Quismundo, Tarra, 'PH Hits China Threat to Int'l Shipping', Philippine Daily Inquirer, 2 December 2012, available at: {http://globalnation.inquirer.net/58481/ph-hits-china-threat-to-intl-shipping} accessed on 26 July 2013. Reuters, 'MacKay mocks Russia’s ‘15th century’ Arctic claim', canada.com, August 2, 2007, available at" {http://www.canada.com/montrealgazette/story.html?id=3f4b4327-92a7-4043-ae95-3575763d7b08} accessed on 24 July 2013. ------'US Warns vs Divide and Conquer in the S. China Sea' ABS-CBN News, 51 August 2012, available at: {http://www.abs-cbnnews.com/global-filipino/world/08/15/12/us-warns-vs-divide-and- conquer-s-china-sea} accessed on 26 July 2013. ------'Neighbours Wary as China Lands Fighter on Its First Aircraft Carrier', The Telegraph, 25 November 2012, available at: {http://www.telegraph.co.uk/news/worldnews/asia/china/9701605/Neighbours-wary-as-China-lands- fighter-jet-on-its-first-aircraft-carrier.html} accessed on 26 July 2013. Rougneen, Simon, 'Another Asean Rift Over South China Sea', The Irrawaddy, 20 November 2012, available at: {http://www.irrawaddy.org/archives/19331} accessed on 26 July 2013. 'Russia Seeks to Prove it has Rights to Part of Arctic Shelf', RiaNovosti, 14 February 2008, available at: {http://en.rian.ru/world/20080214/99207378.html} accessed on 17 September 2013. Sales, Leigh, 'Israeli Government Defends Raids', Austrailian Broadcasting Corporation, 31 May 2010, available at: {http://www.abc.net.au/lateline/content/2010/s2914517.htm} accessed 10 July 2013. 'Scramble for the Arctic', Christian Science Monitor, 21 August 2007, available at:

346 {http://www.csmonitor.com/2007/0821/p08s01-comv.html} accessed on 24 July 2013. Thompson, Andre, 'Record Low Arctic Sea Ice Confirmed', Live Science, 1 October 2007. Available at: {http://www.livescience.com/1895-record-arctic-sea-ice-confirmed.html} accessed on 16 July 2013. 'US Satellite Pictures Chinese Aircraft Carrier Varyag', BBC News, 14 December 2011, available at: {http://www.bbc.co.uk/news/world-asia-16190926} accessed on 26 July 2013. 'Vietnam Accuses China in Seas Dispute', BBC News, 30 May 2011, available at: {http://www.bbc.co.uk/news/world-asia-pacific-13592508} accessed on 4 September 2012. Weber, Bob, 'Denmark Joins Arctic Arms Race, Toronto Star, 26 July 2009, {http://www.thestar.com/news/world/article/672104--denmark-joins-arctic-arms-race} accessed on 17 September 2013 Yaxley, Louise, 'Gillard Wants South China Sea Code of Conduct', ABC News, 20 November 2012, available at: {http://www.abc.net.au/news/2012-11-20/gillard-wants-code-of-conduct-for-south-china- sea/4382768} accessed on 26 July 2013.

National Governments

Canada

Foreign Affairs, Trade and Development Canada, 'Canada's Extended Continental Shelf', available at: {http://www.international.gc.ca/continental/index.aspx?view} accessed on 25 July 2013. Government of Canada, 'Canada's Northern Strategy: Exercising Our Arctic Sovereignty', available at: {http://www.northernstrategy.gc.ca/sov/index-eng.asp} accessed on 25 July 2013. Harper, Stephen, 'Securing Canadian Sovereignty in the Arctic', speech delivered at Iqaluit, Nunavut, August 12, 2006, available at {byers.typepad.com/arctic/2009/03/securing-canadian- sovereignty- in-the-arctic.html} accessed on 24 July 2013.

Chile

Declaration of Chile: Presidential Declaration Concerning Continental Shelf, June 23, 1947, in ST/LEG/SER.B/1, p.6; 2 International Law Quarterly, 135 (1947), and

Denmark

Government of Denmark, 'The Continental Shelf Project', available at: {http://a76.dk/lng_uk/main.html} accessed on 25 July 2013.

El Salvador the El Salvador Constitution: Political Constitution, September 7, 1950, Article 7, in ST/LEG/SER.B/1, p. 300.

People's Republic of China

Communication from the Delegation of the People's Republic of China, 7 May 2009, available at: {http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf} accessed on 17 September 2013. Communication from the Delegation of the People's Republic of China, 14 April 2011, available at: {http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl.pdf} accessed on 17 September 2013.

347 United States

De Waever, Eric, 'Uncertainty in Climate Model Projections of Arctic Sea Ice Decline: An Evaluation Relevant to Polar Bears', US Geological Survey, 2007, pp 17-22. available at: {http://www.usgs.gov/newsroom/special/polar_bears/docs/USGS_PolarBear_DeWeaver_GCM- Uncertainty.pdf} accessed on 17 September 2013. 'Letter from the Permanent Representative of the United States of America to the United Nations', 28 February 2002, UN Doc. CLCS.01.2001.LOS/USA, available at: {http://www.un.org/depts/los/clcs_new/submissions_files/rus01/CLCS_01_2001_LOS__USAtext.pdf} accessed on 26 July 2013. Truman, Harry S., 'Proclamation 2667 - Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf', 28 September 1945. available at: {http://www.presidency.ucsb.edu/ws/?pid=12332} accessed 10 July 2013. United States Department of State, 'Defining the Limits of the US Continental Shelf', available at: {http://www.state.gov/e/oes/continentalshelf/} accessed on 25 July 2013. United States Department of State, Statement by Patrick Ventrell, 'South China Sea', 3 August 2012, available at: {http://www.state.gov/r/pa/prs/ps/2012/08/196022.htm} accessed on 26 July 2013. United States Department of State, 'Clinton, Philippine Foreign Secretary Joint Press Availability', 16 November 2012, available at: {http://translations.state.gov/st/english/texttrans/2011/11/20111116142331su0.4998852.html#ixzz2EhNes 3TA} accessed on 26 July 2013. United States Department of State, Limits in the Sea (No. 106): Developing Standard Guidelines for Evaluating Straight Baselines (1987), p 6, available at: {http://www.state.gov/documents/organization/59584.pdf} accessed on 17 September 2013. United States Department of Transportation, 'Economic Impact of Piracy in the Gulf of Aden on Global Trade', 2008, available at: {http://www.marad.dot.gov/documents/HOA_Economic%20Impact%20of %20Piracy.pdf} accessed 26 June 2013. United States Geological Survey, 'Circum-Arctic Resource Appraisal: Estimates of Undiscovered Oil and Gas North of the Arctic Circle', USGS Fact Sheet 2008-3049, 2008, available at: {http://pubs.usgs.gov/fs/2008/3049/fs2008-3049.pdf} accessed on 16 July 2013. United States Navy, 'A cooperative strategy for 21st century seapower', October 2007. available at: {http://www.navy.mil/maritime/Maritimestrategy.pdf} accessed 26 June 2013. United States Senate, 112th Congress, 2nd Session, S. RES. 524, 'Reaffirming the strong support of the United States for the 2002 declaration of conduct of parties in the South China Sea among the member states of ASEAN and the People’s Republic of China, and for other purposes', available at: {http://www.govtrack.us/congress/bills/112/sres524/text} accessed on 26 July 2013.

United Kingdom

Submarine Areas of the Gulf of Paria (Annexation) Order, August 6, 1942, (Statutory Rules and orders, 1942, Vol. I, 919). United Kingdom Hydrographic Office, 'National Claims to Maritime Jurisdiction', 2012, available at: {http://www.ukho.gov.uk/ProductsandServices/MartimeSafety/AnnualNm/12.pdf} accessed 27 March 2013.

Vietnam

Consulate General of Vietnam in Houston, 'Press Conference on Chinese Marine Surveillance Vessel's Cutting Exploration Cable of PetroViet Nam Seismic Vessel', available at:

348 {http://vietnamconsulateinhouston.org/vi/latest-news/press-conference-on-chinese-marine-surveillance- vessels-cutting-exploration-cable-of-petroviet-nam-seismic-vessel} accessed on 26 July 2013. Inter-Governmental and International Organizations

European Union

European Parliament Resolution on Arctic Governance, 9 October 2008, available at {http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008- 0474+0+DOC+XML+V0//EN&language=EN} accessed on 24 July 2013.

United Nations

Commission on the Limits of the Continental Shelf, 'Scientific and Technical Guidelines of The Commission on the Limits of the Continental Shelf', CLCS/11, May 13, 1999. available at: {http://www.un.org/depts/los/clcs_new/commission_documents.htm#Guidelines} accessed 10 July 2013. Statement by Arvid Pardo, 22nd session of the United Nations General Assembly, 1 November 1967. United Nations, United Nations Conference on the Law of the Sea: Official Records, Volume III, 1st Committee (Territorial Sea and Contiguous Zone), (New York: United Nations: 1958). United Nations, United Nations Conference on the Law of the Sea: Official Records, Volume V, 3rd Committee (High Seas: Fishing: Conservation of Living Resources), (New York: United Nations: 1958). United Nations, United Nations Conference on the Law of the Sea: Official Records, Volume VI, 4th Committee (Continental Shelf), (New York: United Nations: 1958). United Nations, Official Records of the Second United Nations Conference on the Law of the Sea. Geneva, 17 March – 26 April 1960. Committee of the Whole, Verbatim Records of the General Debate, (New York: United Nations, 1960). United Nations, Summary Records of Plenary Meetings and of Meetings of the Committee of the Whole: Annexes and Final Act, (Geneva: United Nations, 1960). United Nations Secretariat, 'Juridical Regime of Historic Waters, Including Bays', Yearbook of the International Law Commission, (New York: United Nations, 1962). United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Volume I: Summary Records of Meetings, (New York: United Nations, 1975). United Nations, Third United Nations Conference on the Law of the Sea: Official Records, Volume II: Summary Records of Meetings, (New York: United Nations, 1975). United Nations, Law of the Sea Bulletin 56, (New York: United Nations, 2005), p 126-133, available at: {http://www.un.org/Depts/los/doalos_publications/LOSBulletins/bulletinpdf/bulletin56e.pdf} accessed on 25 July 2013. United Nations General Assembly Resolution 2340 'Examination of the Question of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Underlying the High Seas Beyond the Limits of Present National Jurisdiction, and the Use of their Resources in the Interests of Mankind', United Nations General Assembly, 25th s. 18 Decemeber 1967. United Nations General Assembly Resolution 2574 D (XXIV): Question of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Underlying the High Seas Beyond the Limits of Present National Jurisdiction, and the Use of Their Resources in the Interests of Mankind', 24th session 1833rd Plenary meeting on 15 December 1969. United Nations General Assembly Resolution 2749 (XXV) 'Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction', 25th session, 17 December 1970. United Nations General Assembly Resolution 2750 (XXV) 'Reservation exclusively for peaceful purposes of the seabed and the ocean floor, and the subsoil thereof, underlying the high seas beyond the limits of present national jurisdiction, and the use of their resources in the interests of mankind and convening of a conference on the law of the sea', United Nations General Assembly, 25th session, 17 December 1970.

349 United Nations General Assembly Resolution 3314 (XXIX), Definition of Aggression, United Nations General Assembly 29th session, 14 December 1974. United Nations Security Council Resolution 660, 2 August 1990 S/RES/660 (1990), available at: {http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/575/10/IMG/NR057510.pdf?OpenElement} accessed on 12 July 2013. United Nations Security Council Resolution 661, 6 August 1990 S/RES/661 (1990), available at: {http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/575/10/IMG/NR057510.pdf?OpenElement} accessed on 12 July 2013 and United Nations Security Council Resolution 665, 25 August 1990 S/RES/665 (1990), available at: {http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/575/15/IMG/NR057515.pdf?OpenElement} accessed on 12 July 2013.

Non-Governmental Organizations

Ekos Research Associates, Munk School of Global Affairs and Walter and Duncan Gordon Foundation, 'Rethinking the Top of the World: Arctic Security Public Opinion Survey,' January 2011, available at: {http://gordonfoundation.ca/sites/default/files/publications/24-05-2011%20Rethinking%20the%20Top %20of%20the%20World%20(3)%20(3)_0.pdf} accessed on 24 July 2013. International Crisis Group, Stirring up the South China Sea (I): Asia Report No. 223, 23 April 2012, p 1, available at: {http://www.crisisgroup.org/en/regions/asia/north-east-asia/china/223-stirring-up-the-south- china-sea-i.aspx} accessed on 26 July 2013. International Institute of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, available at: {http://www.icrc.org/IHL.nsf/52d68d14de6160e0c12563da005fdb1b/7694fe2016f347e1c125641f002d49 ce!OpenDocument} accessed 27 March 2013. Koivurova, Timo and Erik J. Molenaar, 'International Governance and Regulation of the Marine Arctic: Overview and Gap Analysis, WWF, available at {http://www.wwf.se/source.php/1223579/International %20Governance%20and%20Regulation%20of%20the%20Marine%20Arctic.pdf} accessed on 24 July 2013. NIDS China Security Report Task Force 'NIDS China Security Report 2011', Report, National Institute for Defense Studies, February 2012, available at: {http://www.nids.go.jp/english/publication/chinareport/pdf/china_report_EN_web_2011_A01.pdf} accessed 27 March 2013. OceanLaw.org. “The US Extended Shelf North of Alaska,” {http://www.oceanlaw.org/index.php? module=News&func=display&sid=32}, accessed on 12 July 2013. Poling, Greg, 'CNOOC Pulls Back the Curtain', Center for Strategic and International Studies, Asia Policy Blog, 14 August 2012, available at: {http://cogitasia.com/cnooc-pulls-back-the-curtain/} accessed on 7 September 2012.

Cases and Treaties

Cases

Aegean Sea Continental Shelf (Greece v. Turkey), 1976 I.C.J. Reports 3 (Order of Sept. 11). Anglo-Norwegian Fisheries Case, (1951) I.C.J. Reports p 116. Arbitral Tribunal Constituted pursuant to Article 287, and in accordance with Annex VII of the United Nations Convention on the Law of the Sea in the Matter of an Arbitration between Guyana and Suriname (Guyana v. Suriname), Award of 17 September 2007, available at {http://www.pca- cpa.org/showpage.asp?pag_id=1147} accessed on 12 July 2013.

350 Arbitration Between the United Kingdom and France Concerning the Continental Shelf Boundary in the English Channel and South-Western Approaches, 14 March 1978, International Law Reports, 54, pp. 6- 138 and pp. 139-213. Case Concerning the Continental Shelf (Libya v. Tunisia), [1982], I.C.J. Reports 62. Case Concerning the Continental Shelf (Libya/Malta), [1985] I.C.J. Reports. Case Concerning Maritime Delimitation in the Black Sea (Romania v Ukraine), [2009] I.C.J. Reports 44. Clipperton Island Case (France v. Mexico) (1932) RIAA XI, 1105. Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar, Order of 28 January 2010, ITLOS Reports 2008-2010, p. 24. Eritrea v Yemen Arbitration, Award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation, available at: {http://www.pca-cpa.org/showpage.asp?pag_id=1160} accessed on 17 September 2013. Gulf of Maine Case (Canada v. United States), [1984] I.C.J. Reports 246. Island of Palmas Case (1928) 2 RIAA 829. Land, Island and Maritime Frontier Dispute (El Sal. v. Hond: Nicar. intervening), 1990 I.C.J. 146 (Order of Sept. 14). Legal Status of Eastern Greenland Case (Denmark v. Norway) (1933) PCIJ Reports, Series A/B, No. 53, p. 46, available at: {http://www.icjcij.org/pcij/serie_AB/AB_53/01_Groenland_Oriental_Arret.pdf} accessed on 12 July 2013. Maritime Delimitation in the Area Between Greenland and Jan Mayen, [1993] I.C.J. Reports 38. North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. Reports, 3. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports, 2007, p. 659. The "Volga" Case (Russian Federation v. Australia), Prompt Release, ITLOS Case No. 11, Judgment of 23 December 2002. Declaration of Vice-President Vukas. available at: {http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_11/decl.Vukas.E.pdf} accessed on 16 July 2013.

Treaties

Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary (1990) 29 I.L.M. 941, available at: {http://www.state.gov/documents/organization/125431.pdf} accessed on 11 July 2013. Agreement Concerning Interim Arrangements Relating to Polymetallic Nodules on the Deep Sea Bed between France, the Federal Republic of Germany, the United Kingdom and the United States 21 ILM 950 (1982) / TIAS 10562 / 1871 UNTS 276. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 Dec. 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (New York, 4 Aug. 1995) UN Doc. A/CONF.164/37, entered into force 11 Dec. 2001. Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, November 2009, available at: {ftp://ftp.fao.org/docrep/fao/meeting/018/k6339e.pdf} accessed 26 June 2013. Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, 33 ILM 1309 (1994). Antarctic Treaty (Washington, D.C., 1 Dec. 1959), 402 U.N.T.S. 71, 12 U.S.T. 794, T.I.A.S. No. 4780, entered into force 23 June 1961. Anti-war Treaty of Non-aggression and Conciliation (Saavedra Lamas Treaty); October 10, 1933 49 Stat. 3363; Treaty Series 906, available at: {http://avalon.law.yale.edu/20th_century/intam01.asp} accessed on 17 September 2013.

351 Charter of the United Nations, 59 Stat. 1031; T.S. No. 993. Convention between Great Britain and Spain, (commonly called the Nootka Sound Treaty,) signed at the Escurial, October 28th, 1790, available at: {http://freepages.history.rootsweb.ancestry.com/~jkidd/books/greenhow/k.htm} accessed on17 September 2013. Convention on Fishing and Conservation of the Living Resources of the High Seas (Geneva, 29 April 1958) 559 U.N.T.S. 285, entered into force 20 Mar. 1966. Convention on the Continental Shelf (Geneva, 29 April 1958) 499 U.N.T.S. 311; 15 U.S.T. 417; T.I.A.S. No. 5578 entered into force 10 June 1964. Convention on the High Seas (Geneva, 29 April 1958) 450 U.N.T.S. 11, 13 U.S.T. 2312, T.I.A.S. No. 5200, entered into force 30 Sept. 1962. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 26 UST 2403, 1046 UNTS 120, 11 ILM 1294 (1972). Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958) 516 U.N.T.S. 205, 15 U.S.T. 1606, T.I.A.S. No. 5639, entered into force 10 Sept. 1964. Covenant of the League of Nations 225 Parry 195; 1 Hudson 1; 112 BFSP 13; 13 AJIL Supp. 128 (1919). Declaration of Santiago on the Maritime Zone, signed in Santiago, Chile, on 18 August 1952, available at: {http://treaties.un.org/doc/Publication/UNTS/Volume%201006/volume-1006-I-14758-English.pdf} accessed on 11 July 2013. Declaration on the Law of the Sea Montevideo, 8 May 1970, available at: {http://iea.uoregon.edu/pages/view_treaty.php?t=1970- MontevideoDeclarationLawOfSea.EN.txt&par=view_treaty_html} accessed on 12 July 2013. Great Britain/Russia: Limits of Their Respective Possessions on the North-West Coast of America and the Navigation of the Pacific Ocean, Great Britain-Russia, February 16, 1825, 75 Consolidated Treaty Series 95. International Convention for the Prevention of Pollution from Ships, 12 ILM 1319 (1973); TIAS No. 10,561; 34 UST 3407;1340 UNTS 184. Mutual Defense Treaty Between the United States and the Republic of the Philippines; August 30, 1951, available at: {http://avalon.law.yale.edu/20th_century/phil001.asp} accessed on 17 September 2013. Provisional Understanding Regarding Deep Seabed Matters between Belgium, France, the Federal Republic of Germany, Italy, Japan, the Netherlands, the United Kingdom and the United States TIAS 11066 / UKTS 24 (1985) / 1409 UNTS 464. Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227- 227-6, available at: {http://www.refworld.org/docid/3ae6b3a84.html} accessed 10 July 2013. Russia/U.S. Alaska Treaty, United States-Russia, March 30, 1867, in force June 20, 1867, 134 Consolidated Treaty Series 331. The General Treaty for the Renunciation of War 1928. 94 LNTS 57. Translation of extracts of the Treaty between Spain and Portugal concluded at Tordesillas, June 7, 1494; ratified by Spain, July 2, 1494; ratified by Portugal, September 5, 1494, available at: {http://www.history.ubc.ca/sites/default/files/courses/documents/Tim%20Brook/Tordesillas %201494%20extracts.pdf} accessed 10 July 2013. Treaty Between Norway and the Russian Federation Concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, 15 September 2010. English translation available at: http://www.regjeringen.no/upload/ud/vedlegg/folkerett/avtale_engelsk.pdf United Nations Convention on the Law of the Sea (Montego Bay, 10 Dec. 1982) 1833 U.N.T.S. 3, 21 I.L.M. 1261 (1982), entered into force 16 Nov. 1994. United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 34 ILM 1542 (1995); 2167 UNTS 88.

352