UNCLOS: Solutions for Managing the Maritime Global Commons

Maritime issues have emerged as one of the most important security issues in the Indo-Pacific, driving major powers to strategically adjust their policies towards the region. During the past decade, maritime disputes have escalated to the point where the regional order is being affected and the risk of subsequent armed conflict cannot be entirely ruled out.

Considering the strategic significance of Andaman & Nicobar Islands and their proximity to countries of Southeast Asia, India Foundation organised a three-day conference in Port Blair on “UNCLOS: Solutions for Managing the Maritime Global Commons” on 4-6 October, 2017. The Conference highlighted the importance of rule based international order especially in the maritime domain.  The conference witnessed participation from 14 Countries. It was inaugurated by Shri Jagdish Mukhi, Lt Governor, Andaman& Nicobar Islands. Shri M. J. Akbar, Minister of State for External Affairs delivered the Inaugural Address and Vice Admiral Vinay Badhwar, Chief Hydrographer to Government of India delivered the special address in the inaugural session. Ambassadors, diplomats, a former ITLOS judge, experts from academia and Think Tanks attended the conference.

Shri M. J. Akbar highlighted the importance of freedom of navigation in sea and importance of rule based order like UNCLOS in 21st Century. He said that seas must be a shared space for prosperity because conflict for resources will ultimately lead to conflict in the region. This century will be energised by new ideas and new technological innovations. He said that India was going to be a major player regarding technology. He also explained as to why India is also emerging as a naval power. He pointed out that 21st Century was going to be the era of seas, skies & space and not of land. Seas, skies and space have no boundaries. He said that we need to shift our focus from land based approach to sea based strategic thinking because if we see India from land based map then we only look at its size but if we see India from sea then we realize the potential of its outreach with various other continents. India’s outreach through seas to the outer world is significantly different from its territorial size. India’s reach extends from Gulf of Aden in west to Malacca Strait in east and it encompasses far bigger outreach in terms of strategic space.

Shri Jagdish Mukhi, Lt. Governor, Andaman & Nicobar Islands, was the Chief Guest in the inaugural session. He stated that United Nations Convention on the Law of the Sea (UNCLOS) is widely referred to as the ‘Constitution of the Oceans’. It sets out the legal framework within which all activities in the oceans and seas must be carried out, including conservation and sustainable use of the oceans and their resources. He highlighted how UNCLOS also sets forth the legal framework for the sustainable development of the oceans and seas which aims at balancing the rights and obligations of coastal States with those of other States. He also pointed out that abiding all the International laws and decisions of International Tribunals by each country of the world is very essential for global peace. He expressed hope that the maturity exhibited by the littoral states in the Bay of Bengal will also be exhibited by all modern nation states, especially to resolve the outstanding maritime disputes in Indo-Pacific region. He said, “The international community must renew and intensify its efforts to strengthen capacity building with a view to protecting oceans and providing an opportunity for all States to use their resources peacefully, equitably and sustainably for generations to come. To that end, an increased awareness and understanding of the inter-linkages between global legal and policy frameworks and how they can support national and local frameworks, and addressing capacity-needs is also essential. Effective cooperation and coordination, as well as partnerships across all levels and sectors will be critical in that regard. Such cooperation can also be facilitated and stimulated by global-level dialogue and experience-sharing across regions.”

Vice Admiral Vinay Badhwar, Chief Hydro-grapher, Govt. of India, emphasised the relevance of UNCLOS and its continuing vitality in today’s era. He stressed that in today’s time the warfare between traditional States vs States has been intruded by non-State actors which has also threatened the maritime trade and international commerce in the important sea lanes of communications.

Shri Ram Madhav, Director, India Foundation, chaired the session in which keynote address was delivered by Dr. C. Raja Mohan. Shri Madhav said, “All nations must abide by the law of the sea. Just as constitution of land must be understood by citizens in order for it to be better implemented, similarly Law of the Seas must also be understood by people.” He added, “In last few years specially, India has started looking eastwards in its foreign policy approach as is evident in the “Act East” policy. Seaward or ocean-ward thinking in the strategic thought process of Indian minds has started. India as a country has always reiterated its commitment on freedom of navigation and over-flights in the shared space of seas. So in this context UNCLOS becomes very important and thus UNCLOS needs to be strictly adhered by all nations in the region. At a time when global power axis is shifting from Pacific-Atlantic to Indo-Pacific region, the countries in the Indo-Pacific region also need to have a greater say in the evolution and modification of UNCLOS based on present day regional order.”

Dr C Raja Mohan, Director, Carnegie India, in his keynote address spoke of the centrality that the islands of the region will occupy when India realises its maritime destiny. He touched upon the intangibility of the connection between law and power, tensions in the South China Sea, and freedom of navigation. He spoke of the vast expanse that international law has been able to occupy in the last century. He spoke of the enduring tension between law and power, potential pathway to rules based order and concluded by focussing on creating a cooperative framework in the Bay of Bengal.

Dr. Martin Ney, Ambassador of Germany to India, participated in the panel discussion on the ‘Enduring legitimacy of UNCLOS and its Continuing Vitality in 21st Century’, and reiterated that UNCLOS continues to be valid as the all-encompassing reference point concerning any activity in maritime areas, as the single most important source of legitimacy. Ambassador Dr. Ney said, “This concept of UNCLOS being a legal order is still valid today. However, it does need to be upheld and defended. The UN General Assembly Resolution on the Law of the Sea stipulates that: “The convention sets out the legal framework within which all activities in the oceans and seas must be carried out.” Even though we have seen challenges to this notion in recent years, we have to ask: If we were not to accept this convention to be the central framework for all activities, what would be alternatives? I know of none.” Supporting the Tribunal’s award in the South China Sea arbitration, Ambassador Dr. Ney pointed out, “I think that the award of the Tribunal is an excellent example to show the continued legitimacy of UNCLOS and that the Tribunal accomplished a great deal to support its continuing relevance in the 21st century… Any claim saying that mentioned issues concerning the South China Sea only concern adjacent countries and not more distant parties are simply false. Why do they concern all state parties to UNCLOS?  Because what is at stake is also the freedom of the high sea. Trading nations like India and Germany have a huge stake in keeping shipping lines open.”

Mr Ton Sinh Thanh, Ambassador of Vietnam to India, underscored the importance of the South China Sea in terms of its strategic location and natural resources. He noted two types of disputes in the South China Sea at present which are territorial disputes over islands and disputes over maritime boundary, and they are related to each other. He pointed out that The Hague Tribunal’s verdict over the Philippines’ lawsuit against China is a foundation to solve not only issues between the Philippines and China but also disputes between parties with sovereign claims in the South China Sea. Ambassador Thanh said that the South China Sea situation remains complicated and the only solution to this problem is peaceful negotiation in line with international law, especially the UNCLOS. He urged parties with sovereign claims in the South China Sea to avoid complicating the situation by not altering the status quo of this area and respecting the Declaration on the Conduct of Parties in the Sea. Ambassador Thanh also stressed the role of the collective strength of regional nations and powerful countries in the world, including India.

Vice Admiral, Bimal Verma, AVSM, Commander-in-Chief, Andaman & Nicobar Command, Indian Navy, spoke in the valedictory session of the conference. He focussed on the terrorism threats in the maritime domain, ways to promote stability across the Indo-Pacific region, increasing free and fair trade and strengthening energy linkages. He suggested that there is a need to enhance understanding of the crucial maritime issues of freedom of navigation, good order at sea and the legitimate use of the maritime global commons.

Delivering the valedictory address Dr Harsha De Silva articulated the vision of the Sri Lankan government pertaining to the seas and the laws of the sea. He spoke of the opportunities that lie in the ocean for the growth of Sri Lanka and also the region at large. He spoke of the significance of the security of the seas to keep the inter and intra-regional trade going. GDPs of the countries like Bangladesh, Vietnam and Sri Lanka are on an upswing, there is economic transformation in the region along with infra structural development owing to the growing trade in the region. He concluded with an appeal to all the stakeholders of the region to commit themselves to strengthen UNCLOS and work for the development and prosperity of the region.

(This article is carried in the print edition of November-December 2017 issue of India Foundation Journal.)