US Navy FONOPs (freedom of navigation operations) in the South China Sea would have more legitimacy if Washington were to ratify UNCLOS. Photo: US Naval Institute

On April 30, the United Nations General Assembly held a special session to mark the 40th anniversary of the adoption of the UN Convention on the Law of the Sea (UNCLOS).

Singapore was a major player and benefactor of the Convention. This was particularly so in its enshrinement of commercial freedom of navigation that Singapore depends on for its well-being. Appropriately, keynote addresses were given by Singaporean Foreign Minister Vivian Balakrishnan and the former president of the Third Conference on the Law of the Sea, Singaporean Ambassador Tommy Koh. 

They were understandably effusive in their praise of the Convention’s accomplishments and sanguine about its future. But these accomplishments, as great as they are, must be tempered by its limitations and the glaring occasional non-compliance of major maritime powers like the US, China, Russia and the UK.

Balakrishnan said that “UNCLOS is one of the United Nations’ greatest contributions to the codification and the progressive development of international law.” Indeed, but it also created new law, such as the regime of the exclusive economic zone (EEZ), and there are varying unilateral interpretations of key terms and clauses governing military activities therein. 

This and the lack of ratification by the world’s premier maritime power, the United States, are evidence that the Convention is not, as he asserted, a great example of “the power of multilateralism in addressing complex issues of the global commons.”

Balakrishnan also asserted that UNCLOS is a significant step toward the establishment of a “new legal order for the oceans.” I agree. But there is a great deal remaining to be done in clarifying and seeking agreement on controversial terms and addressing issues created by new technologies like drones and cyber and electronic warfare (EW). 

For example, is a drone a warship with all the rights and responsibilities thereof, as some US Navy lawyers contend? If so, must unmanned underwater vehicles (UAVs) operating in a foreign territorial sea surface and show their flag? When does a cyber or EW “attack” originating in a foreign EEZ become a “threat or use of force”? There are many such still-open questions raised by the Convention.  

Moreover, some countries like the US obviously do not recognize that UNCLOS “was adopted as a package and that there should be no selectivity in its application.” This needs to be addressed and rectified.

In his assessment, Balakrishnan proclaimed that the Convention has “stood the test of time” because its rules “have sufficient flexibility and scope for new and emerging issues and challenges to be addressed.” Perhaps, but flexibility means ambiguity, and in such a situation, definitions of key terms are subject to “might makes right.” 

Indeed, in the absence of consensus, some countries unilaterally define some terms to their own advantage. Examples include terms relevant to freedom of navigation like “other internationally lawful uses of the sea,” “marine scientific research,” “abuse of rights,” ”due regard,” “threat of use of force,” and  “peaceful use/purpose.”

Ironically, the US, the principal conflator and defender of freedom of navigation for both commercial purposes and warships, is not a party to UNCLOS, yet it unilaterally interprets these terms to its advantage.

Moreover, there is much unfinished business. Security issues are not explicitly addressed in the Convention, thus leaving issues fundamental to peace and good order in limbo while more countries modernize their navies and expand their capability to project power. 

Other issues not fully addressed include indigenous peoples’ rights; protection of underwater cultural heritage; new technologies like drones; the use of foreign EEZs for intelligence-gathering and cyber and electronic warfare; and developments concerning interdiction of vessels on the high seas.   

As might be expected from the former president of the Third Conference, Ambassador Koh also ignored the shortcomings of UNCLOS. In order to reach agreement among the extremely diverse interest of all parties – a monumental achievement in itself – the negotiators had to make many compromises. When and where compromise proved impossible, they settled on ambiguity.

This is understandable. But these ambiguities have come back to haunt all parties and undermine the legitimacy of the Convention itself. 

A prime example is generated by the conflict between coastal states and maritime powers regarding the regime governing military activities on the EEZ. Coastal states are concerned that foreign military activities in their EEZs will threaten their national security, resource sovereignty and responsibility to protect the environment. 

Moreover, the increase of crime at sea such as violent robbery, the smuggling of drugs and humans and illegal fishing and pollution have caused coastal states to extend their surveillance and control beyond the territorial sea. But maritime powers are concerned that their naval and air access and mobility could be restricted by what they see as creeping jurisdiction.

Already this innate conflict has resulted in an increasing frequency of international incidents in EEZs. More are to come. In particular, the scale and scope of maritime and airborne EW, cyber and intelligence collection activities are expanding rapidly in many countries, reaching levels and a diversity quite unprecedented in peacetime. They are not only becoming more intensive; they are also becoming more intrusive.

Indeed, stepped-up missions may even be considered a prelude to impending warfare and thus be escalatory. They will generate tensions and more frequent crises. They will produce defensive reactions and escalatory dynamics, and they will lead to less stability in the most affected regions, especially in Asia. 

These activities may even create a “Grotian Moment” in which rapid and radical changes in technology and means of warfare greatly accelerate the formation of customary international law.  

The remedy for these disagreements is the Convention’s International Tribunal on the Law of the Sea (ITLOS), a dispute settlement mechanism that includes arbitration, adjudication and compulsory conciliation. Ambassador Koh praised its success. But the US, a major player in these disputes, is not a party to the Convention and thus can neither avail itself of the dispute settlement mechanism or be subjected to it.

This is a major legal lacuna in the “international order of the oceans.” Because of it, the US makes its own unilateral interpretations of key terms and backs them up with what may be interpreted as a threat of use of force, such as its so-called freedom-of-navigation operations.

Also, major powers have refused to comply with ITLOS rulings, including China (the South China Sea case), Russia (the Arctic Sunrise case), and the UK (the Chagos Islands case). This undermines the legitimacy and credibility of both ITLOS and UNCLOS. 

Indeed, as leading thinker Graham Allison says, “the Law of the Sea tribunals are only for small powers. Great powers do not recognize the jurisdiction – except … when they judge it in their interest to do so.”

The point is that while UNCLOS is a tremendous step forward toward the goal of order in the oceans, there is still a great distance to go. The next steps should include the US ratifying the Convention and the UN convening a conference to agree on definitions of controversial terms and to address evolving issues.

Mark Valencia

Mark J Valencia is an internationally recognized maritime policy analyst, political commentator and consultant focused on Asia. Most recently he was a visiting senior scholar at China’s National Institute for South China Sea Studies and continues to be an adjunct senior scholar with the Institute. Valencia has published some 15 books and more than 100 peer-reviewed journal articles.