Topic 1: Maritime Conflicts By Neal Young

A Brief History of Maritime LawMembers of the international community have been attempting to codify maritime law since the creation of Lex Rhodia by the Byzantines in the 7th century.[10] Their original aims were to regulate the actions of individuals, especially in regards to property. States, on the other hand, were left with a free hand to act as they pleased. The maxim ‘might makes right’ applied as legality was primarily determined by strength.[11] During this time customary maritime law was formed based upon common practice, but there was no set punishment for violators and many areas of contention, such as boundaries, were not resolved.

Nearly 1300 years later, with the start of the industrial age, demand for finite resources skyrocketed.[12] The demand for resources increased competition between countries for economic, strategic, and social reasons and exacerbated preexisting tensions. Common sources of contention revolved around territorial sea claims and economic rights within those areas. Ironically, a fight over cod would eventually push the international community into taking action.

Cod Wars: A Case StudyIn 1971, Iceland found itself in a difficult situation. Centuries of overfishing by European countries had severely depleted the cod population and, with the introduction of larger, high-tech trawlers by British fishermen, it was only a matter of time before it completely collapsed.[13] Iceland’s economy relied heavily on this natural resource, but in order to save it Iceland would have to rewrite the law of the sea.

Based on customary law originating from the 17th century, a country’s territorial sea (an area over which a state exercised complete control) extended 3 nautical miles (nm) from shore. This was based on the so-called ‘cannon-shot rule’ stemming from the practical idea that a country was sovereign over territory that could be easily defended from land by force. The problem was that the best fishing grounds were much farther away and the British had no desire to hand them over.[14]

Iceland had won previous concessions from the United Kingdom (U.K.) amounting to 12 nm, and it now unilaterally expand its economic zone to include fisheries located 50 nm from shore. British trawlers ignored demands by the Icelandic Coast Guard to leave this area and were subsequently rammed by navy cutters. Knowing the impact loss of these grounds could have on their own economy, the UK sent frigates of the Royal Navy to defend the trawlers.[15] No shots would be fired, but rammings were frequent and the countries seemed at the verge of all-out war.

The North Atlantic Treaty Organization (NATO) is a military alliance agreed to the mutual defense of its members, but that was only true in case of an external attack. Ironically, Iceland and the U.K. were both a part of the alliance. Iceland, therefore, could not find protection from what it deemed to be British aggression and was now threatening to leave and strengthen ties with the Soviet Union. With this in mind, NATO members pressured the U.K. into accepting Iceland’s 50

nm Exclusive Economic Zone (EEZ) in return for the right to catch 130,000 tons of cod each year.[16]

Just a few years removed from the 50 nm dispute, Iceland would increase its demands to 200 nm. Fortunately, this time around, international law was on its side. A short, though intense, conflict did occur, but knowledge of similar provisions in the soon to be ratified United Nations Convention on the Law of the Sea (UNCLOS) convinced the U.K. that resistance was futile. It was the hope that other countries would similarly submitted to UNCLOS provisions and conflict would be avoided.

Statement of the ProblemAt the end of World War II large amounts of cheap energy were made available by new discoveries and advances in technology. Massive oil fields, such as Ghawar, were reliable, long lasting, and had low production costs.[17] Finds of this nature led to a new industrial age that made globalization possible by making power portable and transportation of goods across the globe feasible.[18] Unfortunately, these ‘conventional’ reserves have ‘peaked’ as their output steadily decreases by as much as 9% a year.[19] Our modern economy became heavily reliant on fossil fuels during the 20th century and, though gaining traction, green technology has not yet replaced it. To make up for declining output and meet the ever increasing appetite for oil, countries must turn to ‘unconventional’ sources that were previously too remote or costly to produce. Some of the largest untapped fields of this type are located in Arctic waters and semi-enclosed seas around China. The former contains up to 22% of the world’s undiscovered reserves[20] while the latter is estimated to have up to 750 trillion cubic feet of natural gas and 285 billion barrels of oil.[21] [22]

Of particular concern to this council is that both of these regions are riddled with territorial disputes that, because the rise of competition for energy reserves, are having a destabilizing effect. Many of the countries involved see control of these resources as political, strategic, economic, and social necessities and have taken steps to assert their willingness to defend them. With energy consumption expected to rise 56% by 2040, it is likely that disputes left unresolved by this council will become increasingly contentious. [23]

Contradictions and the Law of the SeaThe United Nations Convention on the Law of the Sea (UNCLOS), commonly referred to as “Law of the Sea,” is a massive treaty regulating the use and claims of the world’s oceans.[24] There are 167 parties to the convention including both coastal and landlocked states. It should also be kept in mind that, given the treaties basis on customary law and the power of international norms, any country may find themselves obligated to follow the principles codified in UNCLOS (that means you, U.S. & Venezuela!).

Law of Sea, though quite an incredible document, does have its problems. One of the major problems results from alternative methods for determining a country’s maritime boundaries. As mentioned previously, all coastal countries have territorial right above and below waters within 12 nm of their coast and exclusive economic rights to resources up to 200 nm away. A lucky few,

however, may additionally claim rights to seabed resources (e.g. oil, ground fish, nodules) up to 350 nm from shore based on their continental shelf.[25] It should be noted that waters and sea beds that do not fall under any country’s sovereignty are known as the “High Seas” and the “Area.” These are considered property of all mankind and are open to use by all nations.

A continental shelf is described in the treaty as the “submerged prolongation of the land mass of the coastal State . . . [that] does not include the deep ocean floor.”[26] Determining a continental shelf is a technical process that can only be verified through the submission of all necessary data to the Commission on the Limits of the Continental Shelf (CLCS). Rulings by the committee are binding but must be initiated by the coastal state in question.

Contradictions occurring when a country's EEZ or continental shelf claim conflicts with that of another are supposed to “be resolved on the basis of equity,” but does not demand arbitration.[27] This means that even though the International Tribunal of the Law of the Sea (Tribunal) can adjudicate disputes, it only has the power to do so if all countries involved request that it does.[28]

Threats to Regional Peace and Security

South and East China SeaIncreased competition for resources has led to a growing number of conflicts in the South and East China Seas.[29] Tensions between Vietnam and China have been especially violent with each state making clear its willingness to use force. In 1988 three Vietnamese vessels were sunk during a confrontation[30] and recently, in 2014, another vessel, this time a fishing boat, was sunk after being rammed.[31]

Encounters between China and Japan may have so far resulted in less damage, but the stakes are ultimately much higher. Japanese Prime Minister Shinzo Abe has steadily increased military spending and taken a more forceful stance towards China than many of his predecessors.[32] If the situation deteriorated into armed conflict, the United States would be bound by a security agreement to defend Japan.[33] This could quickly escalate a regional war into one between the world’s two largest militaries.

Several parties have attempted to resolve issues using the Law of the Sea, but it is unclear what the results will be or if they would be respected. In response to a submission by Malaysia and Vietnam to CLCS, made in accordance with UNCLOS Article 76, China made what has become known as the “9-Dash-Line Declaration” in which it publicly claimed sovereignty over most of the SCS. [34]

It is unclear if this claim applies to the islands solely on historical right or as part of their continental shelf.[35] It should also be noted that the islands included in the 9-Dash-Line declaration include the Paracel Islands, Spratly Islands and Scarborough Reef - all of which are claimed in whole or in part by Vietnam, Taiwan, the Philippines, Malaysia, and Brunei. Many of these countries also stand to be deprived of their 200 nm EEZs if China’s attempts are successful.

Past Actions by ASEANThe Association of Southeast Asian Nations (ASEAN) is a regional organization committed through promoting stability and prosperity through peaceful means. Its members include many currently involved in maritime disputes within the S & ECS. These are Indonesia, Malaysia, the Philippines, Singapore, Brunei, and Vietnam. In 2002 ASEAN passed a declaration with China on the Conduct of Parties in the South China Sea in which all countries agreed to resolve maritime disputes peacefully and in accordance with the Law of the Sea.[36]

Unfortunately the principles of this declaration have not been consistently followed and China has so far refused to enter into a binding agreement with ASEAN.[37] China prefers to negotiate with individual countries as it leaves it in a much more powerful position.

Arctic OceanArctic sea-ice is melting away as a result of climate change and revealing vast amounts of natural resources including fisheries, minerals, natural gas, and oil.[38] As mentioned previously, these reserves are becoming uncovered as conventional sources are becoming depleted and global demand is skyrocketing. Every arctic coastal state has, unsurprisingly, sought to assert their claims to them. A few of the disputes, such as that between Canada and Denmark over Hans Island, fall into the grey area discussed earlier where one countries 200 nm conflicts with another ’s continental shelf claim.[39] Others results from a country claiming a continental shelf that extends into what others contend should be left as the Area.

Past Actions by Arctic Council The Arctic Council is a regional forum meant to resolve disputes and coordinate efforts.[40] Its membership includes all eight Arctic states[41] and twelve non-arctic observers. Of particular importance are the five coastal members (Canada, Denmark/Greenland, Norway, Russian Federation and U.S.) and influential Observers such as China, Japan, Spain, France, and the United Kingdom. Though they have made attempts to resolve the sovereignty claims that threaten regional stability, anything that was passed would not be binding. Additionally, counterclaims sent by its member to the Commission on the Limits of the Continental Shelf, such as those from Denmark[42] and Russia[43] regarding the Lomonosov Ridge, demonstrate that the Arctic Council may be unable to resolve disputes on its own.

Bloc PositionsThe actions of a government are based on a wide range of complex factors. The bloc positions laid out below provide general information that may, or may not, prove to be the primary motivators for your country’s actions. It is important to know who your trade partners are, what military alliances you are a part of, where your oil comes from or goes to, and what your nation’s core principles are. It is especially important to know if your country has a border dispute of its own or if it currently operates in the High Seas as this may lead your country to lean one way or another.

Landlocked & Developing CountriesIf UNCLOS is followed, it is likely that “donut-hole” shapes will be left open in the center of the Arctic and the SCS. Articles 87 & 140 of the convention make clear that resources found beyond

territorial claims are for the “benefit of mankind” and can be used by any member of the international community with special consideration for the rights of landlocked and developing countries. Even in areas where a continental shelf is claimed, countries still have the right to resources above the subsoil such as fish.

Article 82 should also be kept in mind as it taxes resources extracted from the continental shelf beyond 200 nm and then redistributes it to countries based on need. Given the trillions of dollars at play, some may benefit more from having another country develop the Area if they are unable to.

Articles 124-132 lay out other rights given to landlocked states including the access to ports and freedom of navigation.

United StatesPresident Obama’s foreign policy ‘pivot’ towards Asia is in recognition of the region’s importance.[44] The administration has lauded the benefits that could come from strengthening economic ties between East and West[45] while making clear America’s intention of following through on its military commitments.[46] The U.S. does not have an official position on the 9-Dash-Line Declaration as it believes China has not properly clarified the basis for its claims.[47]

The U.S. is not a party to UNCLOS but may find it a useful tool in negotiations over territory in the Arctic.

ChinaChina’s 9-Dash-Line claims are said to be based on historical rights not expressly granted in the Law of The Sea. Historical claims have been accepted in accordance with customary international law by the International Court of Justice, but it is unlikely that this would apply to the sea beds as well as the islands.[48] With this said, China can apply extensive pressure on individual parties and potentially garner favorable outcomes through bilateral treaties and therefore has been apprehensive to enter binding agreements with ASEAN.

As a non-arctic observer in the Arctic Council, China must also keep in mind how actions in the S & ECS could lead affect its access to resources in the Arctic Ocean.

Other PowersUNCLOS can prove to be an asset or a hindrance depending on your position. Some superpowers may seek to use their strength to force acceptance of their claims, but doing so may come at the cost of economic or military retaliation by others. Setting precedents should also be thought over carefully. For example, if you want a rather expansive sovereignty claim not supported by UNCLOS to be accepted, you may choose to support another country’s similar claim if it does not come at too much of a political or strategic cost. Alternatively, if you have a vested interest in denying another country’s claims on UNCLOS grounds, it may benefit you to follow international law even if it has a short-term cost attached.Questions to Consider

How could UNCLOS be improved? Are UNCLOS institutional bodies effective?What role do resources play in geopolitics? How do they impact IPS?Is our current economic system sustainable? Should it be changed? How?What are the consequences of exploiting the fossil fuels in question? Benefits?Should disputes resources be distributed equitably?How powerful a force is international law? Should it be strengthened?Is the idea of “might makes right” applicable to this situation?Who, if anyone, should arbitrate disputes?What role should regional bodies play in the international community?Should the Area & High Seas be expanded or administered differently?

ConclusionRising global demand for resources combined with the depletion of traditional reserves is leading to increased competition. Countries will look to control these resources for their economic and strategic importance. Other countries may benefit from increased production as a result of lower energy prices, while others may lose out from consequences of global warming which are accelerated by exploitation. Additionally, oil and natural gas producing countries could be damaged by lower prices that would come from expanding supply.

Contradictions in the Law of the Sea, especially between claims based on EEZs and continental shelves, are creating the potential for conflict in the South China Sea, East China Sea, and the Arctic Ocean. All of these areas are of vital importance to the global economy because of the important trade routes that pass through them currently or are likely to in the future. Conflicts would disrupt these routes and limit access to manufactured goods and resources that need to pass through.As the members of the Security Council, you are responsible for the maintenance of international peace and security and must do everything in your power to alleviate tensions and avoid war.