China’s deployment of her 3 front line decking ships in the South China Sea, in a visible move to rout the United State’s star branded aircraft carrier from the same vicinity, has sparked worldwide worries, to say the least. The apprehension is not merely conjectural: a fortiori, an armed hostility between two nuclear juggernauts may entail unpredictable catastrophe. China is not only bent to fortify her claimed suzerainty over the sea, but has also been flexing muscles to ward off maritime access by other nations. The news that four leaders of an informal union known as, ‘Quad’, will be in an online congregation next week with the participation of the US President and the premiers of Japan, Australia and India, to explore the ways and means to consolidate their co-operation, has further inflated the enigma. Quad leaders have been in the process of forging a multinational alliance in the Indo Pacific region to quell China’s proliferating move to grab the South China Sea.
Intrinsic analyses of the jurisprudential regime pertaining to the seas are needed to dissect the core of the China’s claim.
For obvious reasons, laws pertaining to the seas played a primordial role in the progression of the laws of the nations. Even Hugo Grotius, the 17th century Dutch jurist, reckoned to be the patriarch of public international law, bound himself with the perennial devotion to unite sages of conflicting introspection to a consensus with success to expound in chorus, the doctrine of the ‘Freedom of the Seas’, thereby dislodging the Portuguese claim on monopoly trading right. That proclamation was coronated with the status of customary international law, which kept hiking onward on the narrative that international laws depend for its efficacy upon acceptability by the committee of nations.
The law of the sea, as a fertile conduit of jurisprudential proliferation, mounted with the clew that the legal regime should be moulded to accommodate uses of the sea, and should, nevertheless, be geared for avoiding conflict between uses.
In addition to the prevalence of a bunch of customary international law provisions, a plethora of treaties dealing with various aspects of the law of the seas, made the domain fulsome. In numerous instances, provisions of customary and treaty laws are overlapping. Indeed, the rules that reign today, are in the form of assimilation of customary and treaty based laws.
While treaty (conventional) provisions bind those only who are parties to it, the customary law sermons are of mandatory for all. The international court of Justice in Anglo-Norwegian Fisheries case (1951) unequivocally enunciated this theme.
Attempts to codify the laws on the seas , had been a vexatious factor throughout the preceding decades. One of the primordial steps the U N members saddled themselves with on its inception in 1945, was the procreation of the international law commission (LLC), which body itself, as a matter of their prioritised obligation, moved to prepare draft articles on the high seas and territorial waters. By 1956, the ILC, was able to harvest their yields, which formed the basis for the first United Nations Conference on the Laws of the Seas (UNCLOS-1), held in Geneva in 1958. That conference succeeded to adopt four conventions, such as (1) the Convention on the Territorial Sea and Contiguous Zone-(2) the Convention on the High Seas (3) the Convention on the Continental shelf and (4) the Convention on Fishing and Conservation of Resources. However, the failure of UNCLOS I, and then of UNCLOS II, to be unanimous in measuring breadth of the territorial waters, necessitated the 3rd conference, UNCLOS-111. UNCLOS-1 was congregated in 1958 at a time when the human society was yet to familiarise itself about the invaluable mineral resources above and underneath the deep sea bed. Also, the technological know-how to exploit such resources were not in existence . With the dynamic spiral in the technological arena and human expertise, as well as due to the UN’s inundation with scores of new members , demand for revamping the law , turned irresistible and hence the resultant 3rd one, ie UNCLOS III, which, after marathons of sessions, eventually succeeded to pen a fructuous convention in 1982. Having been ratified by 148 nations , inclusive of China , it is now fully operational. Some provisions of the convention have already passed into customary law, and hence, every nation , whether party to the convention or not , are bound by its dictates .The 1982 Convention defined High Seas as encompassing all parts of the sea that are not included in the territorial or internal water, reinstating the customary law prescription on the freedom of all nations over the high seas, which is acclaimed as an invincible provision of the law. The breadth of territorial water, under the convention cannot be stressed beyond 12 miles.
Even though the 1982 convention recognises the concept of Exclusive Economic Zone, not extendable beyond 200 miles, vesting on the coastal state exclusive fishing right, right to living and stale resources, above or underneath the sea bed, that right, however, does not embrace any right to deny navigational right, over flying right, right to lay cables, pipelines and right of any other legally recognised uses by other nations. The coastal states are proscribed from erecting any island or substance that may impede the other users defined rights. This right co-exists with the rights over the continental shelf.
The 1982 Convention has embroidered the olden sagacity that high seas cannot be acquired by individual states or even by a few in conglomeration.
Freedom of the high seas are guaranteed to the coastal and the non-coastal states, equally well without further ado, and carries with it the following attributes:
(1) Freedom of navigation
(2) Freedom of fishing
(3) Freedom of laying submarine cables and pipe lines.
(4) Freedom to fly over the high seas.
The Analysis figured above substantiate beyond doubt that China’s claim over the South China Sea is fully bereft of legal foundation and that China’s continued insistences are tantamount to reprehensible and deplorable breach of international laws, which is bound to detrimentally affect rights of all nations, inclusive of Bangladesh and hence, all the countries, irrespective of their geographical location, should unite themselves to thwart Chinese aggression. It should also be borne in mind that the 1982 Convention has declared all the resources above and underneath the sea bed in high seas areas, as heritage of mankind, to be shared by all nations, and as such, the Chinese aggressive stance will deprive all of us of our share in those of precious substances.
A recent news item gives us to believe that our Foreign Minister has stated that Bangladesh is willing to work with the United States on the Indo-Pacific Security issues. This, no doubt, is a welcome move to secure for us the freedom of navigation and other recognised rights in conjunction with those of others.
The author is a retired Justice of the Supreme Court of Bangladesh.
BDST: 1750 HRS, MAR 17, 2021