Ocean Governance
What’s Happening
In 2016, an arbitral tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS) issued its decision in the Philippines v. China, a case disputing China’s claims of sovereignty in the South China Sea.1 Deciding in favor of the Philippines, the tribunal concluded that China’s historic claim to the sea, signified by the “nine-dash line” that stretches from Taiwan to Malaysia, would not be valid under international law. Despite China’s claims, the area in question exceeded the maritime territory granted to coastal states through UNCLOS.2 The tribunal specified, however, that it would also not “rule on any question of sovereignty over land territory and would not delimit any maritime boundary between the Parties,”3 referring to the artificial islands China has been building on the South China Sea for a decade, as well as the existing territorial disputes. Currently, seven countries in the Indo-Pacific – Brunei, the Philippines, Vietnam, Indonesia, Taiwan, Malaysia, and China – all claim sovereign rights in the South China Sea.4
International debates regarding the management of, and jurisdiction over, sea resources have heightened in recent years, evidenced by the escalation of disputes regarding the South China Sea. As geopolitical tensions continue to rise, the strategic and economic value of the world’s oceans is once again being brought to the attention of state actors and policymakers alike. Oceans and seas, which tend to border a multitude of nation-states, are governed by the Law of the Sea, a body of customary law and international agreements that addresses the question of sovereignty in territorial and international waters.5 These norms of maritime activity are codified in UNCLOS, which was first adopted in 1982 and came into force in 1994, replacing a number of earlier treaties with narrower scopes.6 It addresses territorial seas and contiguous zones, the high seas (also known as international waters), and the continental shelf, as well as fishing regulations and rules regarding the conservation of marine resources.7 It allows coastal states to claim up to 12 nautical miles, or 22 kilometers, of a body of water that borders on its shore, termed “territorial waters.”8 These are distinct from international waters, which belong to all states, and from internal waters, such as lakes, which are wholly surrounded by a state’s national territory, and thus are under its complete sovereign jurisdiction.9
Nation-states also have jurisdiction, albeit limited, over “contiguous zones,” which can stretch up to 24 nautical miles, approximately 45 kilometers, from the coast of a state.10 In contiguous zones, the state’s jurisdiction applies only in the case of the “infringement of [the coastal state’s] customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea.”11 That said, as states do not have full sovereignty over contiguous zones, the legal jurisdiction of domestic courts does not apply, and any conflicts should instead be resolved through international arbitration, bilateral negotiations, or compromise between involved actors.12
Despite being the most comprehensive regulatory framework over oceans and seas, the Convention has not prevented interstate disputes from emerging. To begin with, the Convention’s “intentional ambiguity” on some matters, amidst its otherwise complex and extensive rules for maritime operations, has allowed some states to exploit legal gaps in the treaty to advance geopolitical gains.13 Although the International Court of Justice (ICJ) decided in 2016 that China does not have historical rights over the South China Sea, the country did not participate in the proceedings and rejected the ruling.14 China argues that it holds the same rights as archipelagic states under UNCLOS, which the Convention defines as “a State constituted wholly by one or more archipelago,” which is, “a group of islands, interconnecting waters, and other natural features which are so closely interrelated that [they] form an intrinsic geographical, economic, and political entity.”15 Even though a significant majority of China rests on the mainland, the country’s claim to being an archipelagic state comes from the Paracel Islands, an area in the South China Sea that is composed of nearly 130 coral reefs and small islands.16 China has claimed the waters between the mainland and the Paracel Islands as its internal waters in an effort to grant itself total sovereignty over a large portion of the South China Sea.17
A significant limitation of UNCLOS comes from the extent of its ratification. Currently, 167 countries and the European Union are parties to UNCLOS, as it addresses both coastal and landlocked states.18 Due to strategic concerns and historical disputes, several states have not ratified the treaty, including the United States, Colombia, Turkey, Peru, and North Korea.19 Considering the United States’ role as a key actor in maintaining maritime security, Washington’s reluctance to ratify UNCLOS jeopardizes both the Convention’s legitimacy and effectiveness. Without unanimous ratification, states have minimal incentives, other than reputational factors, to abide by the provisions of the Convention.
Additionally, UNCLOS does not apply in key disputes over maritime rights if a non-party is involved. One example is the matter of territorial claims over the Aegean Sea between Turkey and Greece. The two countries disagree over whether Greece can claim 12 nautical miles from its shores as its territorial waters.20 Due to the presence of small Greek islands in the Aegean, Turkey holds that applying the 12-mile rule, as specified in UNCLOS, would “turn the Aegean into a Greek lake.”21 In addition to the marine environment, the rule would give Greece sovereignty over a majority of the Aegean continental shelf, that is, any land submerged in water, and over the seabed.22 Considering that the Aegean, and the broader Mediterranean, are estimated to contain vast volumes of oil and natural gas reserves, the matter of sovereignty is especially crucial.23 The two countries already came to a standstill over drilling rights in the Eastern Mediterranean, where both Athens and Ankara claim territorial rights, in the summer of 2020.24 Turkey petitioned the Conference on the Law of the Sea to treat the Aegean Sea as an exception to the 12-mile rule, and advocated for limiting the marine territory of islands.25 Both requests were met with objections, causing Turkey not to ratify the Convention. As long as Turkey remains a non-party to UNCLOS, the 12-mile rule will not apply in the Aegean, at least not in an international court. Greece, however, continues to consider the Aegean as its national sea.26
Contemporary claims to territorial waters, and questions about ocean governance that they bring up, reflect systematic issues that have been highlighted since the establishment of UNCLOS. Even among states that have ratified the Convention and its predecessors, the determination of territorial waters has given rise to numerous disputes, which continue to carry implications to this day. For instance, at the 1952 Conference on the Exploitation and Conservation of the Maritime Resources of South Pacific, Chile, Ecuador, and Peru signed the Santiago Declaration, which asserted that each country “possesses sole sovereignty and jurisdiction over” 200 nautical miles of waters from its coast.27 In 2010, this proclamation was considered in the maritime dispute between Peru and Chile, which was referred to the ICJ.28 The Court determined in 2014 that a maritime boundary between the two countries has existed historically, as evidenced by certain provisions of the 1952 Santiago Declaration.29 Although UNCLOS specifies the extent of territorial waters, disputes on the matter, both historic and contemporary, are abundant.
The cases discussed so far are a few among many maritime disputes. It is noteworthy to consider the escalation of such disputes, which has led states to either forego joining UNCLOS or to present innovative legal arguments to capitalize on existing ambiguities of the Convention.
Why Is it Happening?
The strategic importance of oceans and seas primarily stems from their economic value, especially in trade and energy.30 Around 80% of internationally traded goods, anything from iron ore to grain, are transported by sea.31 This percentage is even higher for developing states, whose domestic markets rely heavily on imports.32 As demand for global freight is bound to increase in the coming years, it is estimated that maritime trade volumes will triple by 2050.33 An important component of the Law of the Sea is that a nation-state’s sovereignty over its territorial waters is not applicable to matters of transit. Under the principle of the freedom of navigation, UNCLOS gives all states the right of “peaceful” passage through territorial waters and contiguous zones, which applies to all freight ships.34 Article 19 of the Convention specifies that “Passage is peaceful so long as it is not prejudicial to the peace, good order, or security of the coastal state.”35 That said, although ships belonging to all states can pass through straits, the state that has sovereignty over the strait’s territory nevertheless has the authority to regulate the “navigational aspects of the passage.”36
In practice, these provisions have meant that national governments can tax transit through straits and maritime passages for international ships, accruing significant revenue. The Panama Canal, which was expanded in 2016 to double its previous transit capacity, sees more than 15,000 cargo ships pass through in a year.37 In 2021, this amounted to more than 15 million tons of cargo, setting a historical record.38 In 2021 alone, the Panama Canal brought in $3.71 billion in profits.39 As illustrated, states that can monetize passage through straits stand to gain significant economic advantage.
UNCLOS and the Law of the Sea are more deeply involved in the economic sphere through the Convention’s establishment and regulation of Economic Exclusive Zones (EEZs). Article 76 of UNCLOS gives coastal states sovereignty over its continental shelf, which “comprises the seabed and subsoil of the submarine areas,” and extends to 200 nautical miles, or 370 kilometers, from the coast.40 Although this sovereignty is limited compared to territorial waters, the jurisdiction of the coastal state over the EEZ nonetheless applies to “fish, offshore oil, and natural gas.”41 This means that coastal countries technically own all submarine oil and gas reserves that extend to 370 kilometers off their shore. They can extract from known reserves or conduct exploratory drilling over the seabed.
Considering that some of the largest reserves of fossil fuels are embedded in oceans, EEZs give coastal states an incredible economic advantage. In fact, the possibility of becoming an oil-exporting state fuels numerous disputes over maritime delimitation. For instance, the South China Sea, which seven countries currently have claims over, is estimated to contain “11 billion barrels of untapped oil and 190 trillion cubic feet of natural gas.”42 For context, Norway, one of the world’s largest producers of crude oil and Europe’s main natural gas supplier, has around 5 billion barrels of oil and only 51 trillion cubic feet of gas.43 In addition to massive revenues from surface activities, such as trade routes and maritime transport, coastal countries also stand to transform their entire economies by accessing submarine fossil fuel reserves. This means that the stakes for maritime disputes are incredibly high.
It is important to note that, due to the establishment and governance of EEZs, UNCLOS has been criticized as discriminatory, granting coastal states disproportionate control over open seas compared to landlocked states. To address this inequity, Article 69 of UNCLOS establishes that landlocked or otherwise disadvantaged states have the right “to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus” of the natural resources that are present in the EEZ’s waters, continental shelf, or the seabed.44 However, the Convention primarily specifies the fishing surplus in this provision, leading to ambiguities about the distribution of fossil fuels. Moreover, Articles 69 and 70 specify that “the terms and modalities of such participation” should be determined by “bilateral, subregional or regional agreements.”45 Without a centralized system for determining the parameters of what is considered “surplus” and how that surplus should be shared, however, these provisions are open to exploitation by coastal states, especially when it comes to fossil fuels.
We are already experiencing what has been termed the “blue acceleration” – a trajectory towards a more intense reliance on the oceans and seas, and their resources.46 As the COVID-19 pandemic highlighted the extent to which global supply chains and national economies are interconnected, oceans and seas will continue to remain, and even gain heightened importance, as crucial factors in both unilateral and international economic stability, thus, in policymaking as well.
What’s Being Done About It?
Considering the strategic and economic value of oceans and seas, a number of unilateral and multilateral actors have acted to alleviate the limitations of UNCLOS. To begin with, Article 237 of UNCLOS lists universal institutions, such as the International Tribunal for the Law of the Sea and the ICJ, as the primary dispute resolution avenues for maritime disputes.47 However, due to the shortcomings of UNCLOS to resolve existing matters, relevant actors have shifted to more targeted, and often regional, entities for mediation.48 For instance, following China’s reception of the ICJ ruling in 2016, the Association of Southeast Asian Associations (ASEAN) has spearheaded negotiations around a code of conduct for the South China Sea. The code is “intended to reduce the risk of conflict,”, especially between China and ASEAN member states Vietnam, Malaysia, Brunei, and the Philippines.49 ASEAN-led negotiations appear to be making progress, more so than what has been achieved through UNCLOS. In a meeting with the Malaysian Foreign Minister Saifuddin Abdullah last June, China’s former foreign minister Wang Yi declared China’s intention to speed up negotiations for the code of conduct and to “advocate true multilateralism” on the matter.50
States have also prioritized unilateral initiatives to advance the customary norms of sovereignty in open waters. An often-utilized approach is the conduct of freedom of navigation operations (FONOPs), which aim to emphasize all states’ rights to open waters, despite the disputed sovereignty of certain regions.51 The United States, though it is not a party to UNCLOS, frequently resorts to FONOPs in disputed waters. The U.S. has conducted FONOPs in the Straits of Malacca, Hormuz, and Gibraltar in the past decades, and more recently, in the South China Sea.52 This illustrates that, in the face of UNCLOS’ shortcomings, countries can unilaterally take an active role in preserving the integrity of open waters.
Lastly, as a response to the growing importance of oceans and the existing challenges of UNCLOS, a number of scholars have made propositions to better address ocean governance. Journalist Gregg Easterbrook suggests the creation of a World Oceans Organization in his book The Blue Age. 53 According to Easterbrook, a World Oceans Organization can be “a true global governance system,” establishing regulations around workers’ rights, weaponry, offshore energy projects, trade, and climate protection in open waters.54 However, the proposal to create another universal organization for ocean governance has been called “utopian” by some critics.55 The limitations of UNCLOS stem from “built-in ambiguities,” designed to achieve a near-universal convention on maritime rights in the golden era of multilateralism. It is unclear how the proposed institutions will bypass these limitations, especially as maritime disputes are increasingly more politicized in both bilateral and multilateral settings.
What’s Next?
In public discourse, the supranational governance of large bodies of water is not well understood or widely debated. In the near future, heightened interstate dependencies and technological advancements will invite new conflicts over the distribution of global public goods. As any further advancement in the governance of oceans will provide precedent for the resolution of future debates in this sphere, a comprehensive and more mainstream understanding of multilateral and unilateral approaches to the politics of oceans is crucial.
UNCLOS enshrines the notion that “All problems of ocean space are closely interrelated and need to be addressed as a whole,” and acknowledges bodies of water as a global public good.56 Especially in the face of the multi-sectoral impacts of climate change, existing models for ocean governance can provide a framework for approaching other natural shared resources in the near future. Relevant actors should devise governance models for oceans as a future framework for the governance of other global commons, and consider important questions of state sovereignty the process will bring up.
It is not certain whether the solution to UNCLOS’s shortcomings will be the creation of a universal organization for ocean governance. Instead, governments should prioritize creating clear guidelines for shared resources, both domestically and regionally. One avenue for this can be the creation of domestic government bodies mandated to regulate the use and distribution of marine resources. Several countries, including Canada and South Korea, already have ministries dedicated to ocean governance, which gives them a significant advantage as global policy priorities shift.57 Considering ocean governance’s political and economic implications, all states, whether coastal or landlocked, would greatly benefit from taking initiative on this front.
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