The Indo-Pacific, today, is the world’s most strategically significant region.[i] Although there is no internationally accepted geographic delineation of the Indo- Pacific region till date[ii], it broadly constitutes the entire region encompassed by the Indian Ocean and the Pacific Ocean together.[iii] The emerging economic potential, military advantages and the geo-strategic significance of the Indo-Pacific region encompasses both immense opportunities and complex challenges
Significance of the Indo-Pacific region:
The Indo-Pacific is the hub for global trade, commerce and energy supply[iv]. The sea lanes of communication (SLOC’s) passing through the Indo-Pacific region contain narrow straits like the Strait of Malacca, the Strait of Hormuz and the Bab-el-Mandeb, which form vital choke-points for global commerce.[v] Any interference or disruption in the free flow of international traffic through the choke-points would threaten peace, security and stability in the region, apart from severely affecting the domestic economies of oil & trade dependent nations.[vi] Further, the Indo-Pacific is at the center of economic growth in the world as it contributes to over 60% of the global GDP[vii] and more than 40% of the global exports[viii]. The region is inhabited with more than 50 percent of the global population[ix] and the world’s largest economies, namely USA, China and Japan are also situated here[x]. The region contains huge quantities of living and non-living resources ranging from lucrative fish stocks[xi] to offshore oil and gas reserves[xii].
Militarily too, the Indo-Pacific region is a strategic landscape for most maritime nations. In the Indian Ocean Region alone, three major non-littoral powers have established military bases in strategic locations to project and sustain military power at greater distances, namely, the USA in Diego Garcia, France in Reunion and China in Djibouti[xiii] with reports of Chinese military seeking additional facilities in the region[xiv] including media reports detailing secret military agreements between China and Cambodia.[xv]
The United States of America has renamed its US Pacific Command (USPACOM) as the US Indo-Pacific Command (USINDOPACOM) in May, 2018[xvi]. The unified combatant command of the US Armed forces is responsible for military operations in the waters encompassing the Indo-Pacific region, stretching from the west coast of the USA to the west coast of India.[xvii] Australia, recognizing the Indo-Pacific region as the center of global economic and military power, has in July 2020, in its ‘2020 Australian Defence Strategic Update’[xviii], defined Australia’s strategic objectives for the region, restructured its Defense Forces and also infused a defence investment of 270$ billion over the next decade.[xix] Japan and India have in September 2020 inked a 10 year military pact that will allow for the movement of supplies and services between their armed forces.[xx]
The four largest democracies of the region, namely, the USA, Japan, Australia and India have entered into an informal strategic alliance called the Quadrilateral Security Dialogue (QUAD)[xxi],paralleled by joint military exercises of an unprecedented scale, in the Indo-Pacific region, titled Exercise Malabar.[xxii] The Malabar series of exercises, which began as an annual bilateral naval exercise between India and the US in 1992, has seen increasing scope and complexity over the years. Australia joined the Malabar after 13 years and its 24th edition in November, 2020, witnessed joint military exercises by USA, India, Japan & Australia which aimed at enhancing their military interoperability and exhibited their common commitment to a stable, open and inclusive Indo-Pacific region.[xxiii]
Existing maritime rules-based order:
The term “international rules-based-order” was coined in the aftermath of the Second World War and refers to the institutions and norms centred around the United Nations (UN).[xxiv] The primary purpose of the UN was to maintain international peace and security and the UN & its institutions are credited to have secured international peace, stability and security for the last seventy years.[xxv] The global maritime domain too, comprising the world’s seas and oceans, has traditionally been governed by the UN and its allied institutions and the laws made by them.
The existing maritime rules-based order comprises Conventions, treaties and protocols established by the UN and its allied institutions concerning both aspects of private maritime law and public maritime law. Private maritime law, also known as admiralty law, is a body of laws, conventions and treaties that govern private maritime business and other nautical matters, such as shipping and liability for offenses occurring in the global seas and oceans.[xxvi] While, safety and security of international shipping and the prevention of pollution caused by ships is governed by The International Maritime Organization (IMO), a UN specialized agency[xxvii]; The International Labour Organization (ILO), another specialized agency of the UN, governs human and labour rights of persons operating in the maritime domain, including sea-farers[xxviii]. Public international maritime law comprises the laws governing the use of the oceans and seas and the United Nations Convention of the Law of the Sea (UNCLOS), commonly regarded as the ‘Constitution of the Oceans’ is at the fulcrum of the existing public international maritime order.[xxix] This paper is limited to examining the international maritime rules-based order in the public international law domain.
Failure of the existing maritime rules-based-order:
UNCLOS, a universally accepted maritime legal order governing the seas and oceans, with 168 out of the world’s 193 countries as its signatories[xxx], is increasingly failing to address emerging maritime challenges in the Indo-Pacific. International scholars have found that at least one-third of the 168 State parties to the Convention, are in breach of at least one significant provision of the UNCLOS[xxxi] and as such UNCLOS suffers from rampant non-compliance by its member countries.
The Indo-Pacific region is witnessing a geo-strategic rivalry in the South China Sea between USA and China[xxxii], and USA being a non-signatory to UNCLOS would lack the support of both the substantive international laws and the expertise of the judicial institutions created by the Convention (UNCLOS) and therefore undermines its authority as an effective maritime rules-based-order.[xxxiii] Further, the Convention was designed as a broad framework of principles concerning the law of the sea[xxxiv] and intrinsically lacks specificity and clarity in its principles making its non-compliance more convenient to state parties, often resulting in varying interpretations of the Convention by State parties.[xxxv] For instance, the Convention entitles a coastal state to exclusive sovereign maritime rights within its territorial sea, EEZ & continental shelf and also provides the procedure for de-limitation of territorial sea between States with opposite or adjacent coasts. However, the convention doesn’t provide for the procedure to delimit the EEZ and Continental Shelf between States with opposite or adjacent coasts.[xxxvi] Eventually, the international courts and tribunals, at the request of disputing countries, had to develop a framework for delimitation of the EEZ and continental shelf between states with adjacent or opposite coastlines.[xxxvii] In the case of Timor Liste Vs. Australia[xxxviii], pertaining to the delimitation of their continental shelf boundary, however, the legal procedure of delimitation of continental shelf boundaries established by the international courts failed to effectively delimit their maritime boundary and therefore, both the States were compelled to mutually arrive at a settlement of their boundary dispute, based on their self-styled procedure[xxxix]. This case exhibits the escalating gap between the Convention and the emerging maritime challenges.
Further, China, a littoral of the Indo-Pacific region, with a coastline encompassing three seas, the Yellow Sea, the East China Sea and the South China Sea,[xl] is increasingly threatening the lawful exercise of sovereign rights of its littoral neighbors, by resorting to aggressive means to control disputed waters.[xli] Aspiring to be the superpower of the 21st century, China is using military and economic coercion to strategically expand its influence in the region & establish its maritime hegemony.[xlii] For instance, China has maritime boundary disputes with its littoral neighbors namely, South Korea, Indonesia, Vietnam, Japan, among others, over the delimitation of their overlapping Exclusive Economic Zones (EEZ).[xliii] While Chinese fisherman have historically been found illegally invading the South Korean[xliv] and Indonesian waters[xlv], sometimes as close as their territorial waters; today, illegal fishing incursions by Chinese fisherman are often found escorted and protected by Chinese Coast Guard and Naval vessels, thus evidencing strong state support to China’s illegal maritime incursions in disputed waters.[xlvi]
South Korea and China’s maritime boundary dispute has, in recent times, also led to the death of Chinese fisherman[xlvii] and South Korean Coast Guard officers[xlviii] as multiple rounds of negotiations between the two have so far failed. While South Korea strongly opines that the boundary should be determined by the median line principle as provided by international law, China argues that the line should be proportional to its larger population and longer coastline, against established international law and custom.[xlix] Historically, Vietnam and China have restrained from conducting oil exploration activities in disputed waters in the South China Sea. In 2014, breaking traditional customary practices, China moved a Chinese mobile oil rig into disputed territory resulting in massive anti-Chinese riots and destruction of hundreds of Chinese businesses in Vietnam.[l] The statement of the United States Secretary of State on 13.07.2020 would be of significance to understand China’s behavior towards its littoral neighbours:
“Beijing uses intimidation to undermine the sovereign rights of Southeast Asian coastal States in the South China Sea, bully them out of offshore resources, assert unilateral dominion, and replace international law with “might makes right.”[li]
Furthermore, China is posing a threat to the peace, security and stability of the region, violating entrenched international maritime customs and established principles of law. China’s ownership claim of over 90% of the area comprising the South China Sea, through a self-styled nine-dash line is contrary to international law and established customary practices.[lii] Though China has not yet used the nine-dash-line as an inviolable border to its sovereignty, neither has it officially explained the meaning of the line, raising suspicion internationally over its intentions in the South China Sea.[liii] 80 percent of the global trade by volume and 70 percent by value is transported through sea of which the South China Sea carries an estimated one-third of the global shipping.[liv] Fearing an imminent threat to the free flow of international trade and commerce through the South China Sea, a few concerned nations, including the USA, Japan and Australia have increased their naval presence and are conducting freedom of navigation exercises (FONOP’s) in order to ensure commercial ships pass through all areas of the sea permitted by law.[lv] China has officially declared these freedom of navigation exercises, legally permitted and historically practiced as customary norms, as provocative,[lvi] escalating the threat of an armed conflict between competing naval vessels operating in close range in narrow spaces. Furthermore, China categorically and willfully disregards international law by failing to follow the order of an international arbitral tribunal[lvii] which held that China’s claim to the nine-dash line in the South China Sea violates the provisions of UNCLOS, i.e. the United Nations Convention on the Law of the Sea, 1982.[lviii]
In the South China Sea, China claims sovereignty over four major archipelagic groups, each of which comprise groups of islands, rocks and features.[lix] By claiming sovereignty over the groups of islands, rocks and features, China claims sovereignty over their land territory as well in consequence of the operation of the Convention, sovereign rights and entitlements over the maritime zones that the feature, island or rock may be individually, entitled to under the Convention. Further, the Convention defines an ‘island’ and provides that an ‘island’ would be entitled to all the maritime zones as provided under the Convention but fails to provide for the procedure to determine claims to sovereignty of the island’s land territory, which pertains to principles of general international law, outside the scope of the Convention.[lx] Taking advantage of the vague and ineffective provisions,[lxi] China is increasingly asserting sovereign claims to the land territory of unoccupied or its recently occupied maritime features. Further, the Convention does not provide for the procedure to determine whether an island is artificial or naturally formed.[lxii] China is carrying out massive land reclamation activities on semi-submerged rocks and features and constructing artificial islands. China’s claim to maritime zonal entitlements for these artificially created islands, if made, should not be a surprise to the international community, considering China’s intentions behind the aggressive build-up & reclamation of occupied maritime features has not been stated officially.[lxiii] With its might-makes-right ideology and ‘predatory world view’, China suppresses international criticism through coercive diplomacy and economic measures critically undermining the established maritime rules based order, namely the UNCLOS. The central political impetus behind the drafting of the Convention was to safeguard the oceans and seas by ensuring equity among the rich and developing nations. Today, China’s evident actions seeking to replace the established rules-based order, i.e. the Convention with its ‘might makes right’ principle, throws light on the magnitude and scale of the failure of UNCLOS to address modern maritime challenges.
Most importantly, the emerging and complex challenges of the Indo-pacific and the aggressive maritime rise of China, as noticed , are increasingly threatening the legitimacy and relevance of the UN along with its principal organ, the UN Security Council.[lxiv] For instance, China’s refusal to comply with the order of the international arbitral tribunal in the Philippines VS. China case[lxv] and Russia’s initial refusal to follow the order of the international arbitral tribunal in the Netherlands Vs. Russia case,[lxvi] at the outset, expose the deficiency of UNCLOS to enforce its provisions. But, essentially, the wilful disregard to the orders of the international tribunals by China and Russia, the veto wielding powers of the UN Security Council, only exposes the incapacity of the UN Security Council, the highest enforcement authority under the UN, to enforce the orders of international tribunals against the wishes of a veto power. The refusal of China and Russia to follow the orders of the international tribunals has therefore exposed the antiquity of the veto framework of the UN and the inadequacies of its laws and institutions.[lxvii] Therefore, today veto powers like China and Russia are more powerful than international ‘rule-of-law’ and the Convention has further proved to be ineffective in achieving its objectives of maintaining a legal order governing the oceans and seas.
An analysis of a few of the reasons among the many, makes it clear that UNCLOS in its present form has become illegitimate and irrelevant as it fails to achieve even its primary objectives of establishing an effective maritime legal order for the seas and oceans. But on a larger dimension, the emerging maritime challenges have exposed the failure of existing international order itself, i.e. UN and its organs including the UNSC. The existing five-decade old legal order is oblivion to the contemporary global circumstances like the change of balance of power in the 21st century from the Pacific-Atlantic to the Indo- Pacific accompanied by the rise of Asian powers[lxviii]; the global shift from a uni-polar world order to a multi-polar/ hetero-polar world order[lxix] and lastly, an unpredictable post- covid world[lxx] defined by new and complex threats and challenges.
Need for an effective international maritime rules-based-order:
The current century is marked by the escalating significance of the Indo-Pacific region evidenced by the increased strategic, economic and military activities in the region. The urgent need for a renewed maritime legal order is increasingly being felt by both coastal and maritime trading nations. In the light of the emerging challenges, most nations have in recent times laid down their perspectives of the new maritime order for the Indo-Pacific. The region’s most powerful democracies namely, USA, Japan, Australia & India have all laid out a similar vision for the Indo-Pacific. Their common Indo-Pacific vision is best expressed by the recent statement of India’s Foreign Minister at Tokyo on 07.10.2020 which reads[lxxi],
“As vibrant and pluralistic democracies with shared values, our nations have collectively affirmed the importance of maintaining a free, open and inclusive Indo-Pacific. We remain committed to upholding the rules-based international order, underpinned by the rule of law, transparency, freedom of navigation in the international seas, respect for territorial integrity and sovereignty and peaceful resolution of disputes.” (emphasis supplied)
The ten countries that comprise Southeast Asia, namely, Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam, closely connect the two oceans, namely the Indian Ocean and the Pacific Oceans in both the geographical and civilizational sense. The South East Asian nations have expressed their collective and shared Indo-Pacific vision through their regional intergovernmental organization namely, the Association of South-East Asian Nations (ASEAN). A recent statement by ASEAN secretariat dated: 23.06.2019 titled, ‘The ASEAN outlook on the Indo-Pacific’, reads as under:
“ASEAN Outlook on the Indo-Pacific is based on the principles of strengthening ASEAN Centrality, openness, transparency, inclusivity, a rules-based framework, good governance, respect for sovereignty, non-intervention, complementarity with existing cooperation frameworks, equality, mutual respect, mutual trust, mutual benefit and respect for international law, such as UN Charter, the 1982 UN Convention on the Law of the Sea, and 3 other relevant UN treaties and conventions, the ASEAN Charter and various ASEAN treaties and agreements and the EAS Principles for Mutually Beneficial Relations (2011).”[lxxii] (emphasis supplied)
Some maritime nations have, therefore, laid out the importance of developing a free, open, transparent and inclusive international maritime rules-based-order, governed by rule of law, that will contribute to peace, stability, resilience, and prosperity of the Indo-Pacific region. All maritime trading nations desirous of a free and open Indo-pacific which is governed by a rules-based-order must, therefore, forthwith, shoulder the responsibility of creating a new & effective maritime rules-based-order for themselves. Whether the new maritime order is to be created by recourse and amendments to the existing international legal order, namely the UN and UNCLOS or a new regional order for the Indo-Pacific is to be developed, should be the subject of international consultations and deliberations between interested & concerned maritime nations. Either way, developing an international maritime rule based-order based on the principles of a free, open and inclusive Indo-Pacific region must be the immediate agenda for all maritime trading nations.
Author Brief Bio: Ms. Hamsa Devineni is a practicing lawyer. A maritime lawyer by specialization, she holds a distinction in LLM (Admiralty and Maritime Laws) from Tulane University Law School in USA. She is a visiting fellow at the India Foundation and the National Maritime Foundation and also a visiting faculty at NALSAR University, Hyderabad and NALANDA University, Rajgir.
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