UNCLOS Under Pressure: Law of the Jungle or Law of the Sea?
Analyse Conflict en Fragiele Staten

UNCLOS Under Pressure: Law of the Jungle or Law of the Sea?

28 Jul 2020 - 10:20
Photo: US navy during an exercise in the South China Sea. © Official U.S. Navy Page/ Flickr
Terug naar archief

Corona crisis or not, China is relentlessly strengthening its control over the South China Sea while not shying away from confrontation. Surprisingly, the worldwide corona crisis may also present some unexpected openings, as is illustrated by the Turkish-Cypriot maritime border conflict in the Mediterranean.1

For decades, maritime and territorial disputes have been on-going in the region, involving virtually all coastal states of the South China Sea over claims to the sandbanks, atolls, islands and the waters in between them, rich in fish and other natural resources.

Looming large over this region, China is a key player in these conflicts. Just like the other countries around the South China Sea, the country has signed and ratified the United Nations Convention on the Law of the Sea (UNCLOS).2 It is this treaty that governs the maritime claims of coastal states on the natural resources within the so-called Exclusive Economic Zone (EEZ) and the Continental Shelf.3

The Chinese claim
China also makes additional claims to the islands, waters and natural resources of practically the entire South China Sea based on what it calls ‘historic rights’.
4 Controversial for legal as well as historical reasons, these claims have been displayed on Chinese maps since 1947 through the so-called ‘nine-dash line’.

Parts of the South China Sea are claimed by China (the red 'cow's tongue'), Malaysia, Vietnam, Brunei, the Philippines, Taiwan and even Indonesia. © Wikimedia
Parts of the South China Sea are being claimed by China (the red 'cow's tongue'), Malaysia, Vietnam, Brunei, the Philippines, Taiwan and even Indonesia. © Wikimedia 

This line encompasses nearly the entire South China Sea and, in so doing, overlaps with the EEZ of other coastal states (Brunei, Vietnam, the Philippines, Malaysia and even Indonesia's Natuna Islands). For this reason, the claims made by China regularly give rise to tensions. In 2016, the Chinese claim was rejected by an international arbitration tribunal in The Hague as going against the Law of the Sea Convention.5

Ever since, China has refused to recognise the arbitral award and has been more active than ever in the coastal waters of its neighbouring countries. When in early April 2020 a Vietnamese fishing boat sank following a collision with a China Coast Guard vessel, and a Chinese research vessel showed up in the coastal waters of Malaysia, only to stay there for a month, this actually meant a repetition of moves and patterns from previous years.6

A sustained presence 
In 2019, a near-permanent Chinese presence was observed in the coastal waters claimed by the Philippines, Malaysia and especially Vietnam. This presence often comprised – in addition to fishing vessels – one or more China Coast Guard vessels, ships from the Maritime Militia (which is a paramilitary force on board steel-hulled fishing vessels) or even an oil exploration vessel.

Especially now that China has several forward bases on recently created artificial islands, it has become increasingly easy for China to sustain a prolonged presence in the region.7

Malaysia and Vietnam
During much of May 2019, for instance, the Chinese coastguard obstructed Malaysian oil drilling at the Luconia Shoals, an area of shallows and sandbanks in Malaysia's EEZ. This is where Sarawak Shell, a subsidiary of Royal Dutch Shell, is conducting oil exploration on behalf of Malaysia.

Not much later, in mid-June, the Chinese coastguard showed up close to a gas field in waters claimed by Vietnam, where Russian Rosneft is looking for gas on behalf of Vietnam. In early July, a Chinese research ship and escort also arrived in the area to search for oil and gas.8 The Chinese research vessel eventually left in October, only after Vietnam had completed its own drilling activities in the area, and after a sustained presence of almost four months.9

The Chinese naval vessel Qingdao in 2006. © Picryl
The Chinese naval vessel Qingdao in 2006. © Picryl

Only this summer, Vietnam cancelled its contract with an oil rig meant to explore an oil field off Vietnam’s south-eastern coast under pressure of a China Coast Guard vessel patrolling near another Vietnamese oil rig. Moreover, Spanish Repsol gave up its shares in three Vietnamese oil blocks after years of Chinese pressure.10

Philippines
In early 2019, dozens of Chinese 'fishing vessels' suddenly emerged near a small Philippine island in the South China Sea. A few months later, in the summer, two Chinese research vessels showed up – without permission – within the EEZ of the Philippines.

One year later, the fishing vessels, presumably from the aforementioned Maritime Militia, are still circling the island. They do not seem to be leaving anytime soon.11

In June this year, a small wooden Philippine fishing boat sank after a collision with probably a steel-hulled Maritime Militia vessel. The 22 Filipino fishermen were left to the elements at night in the sea and were later rescued by Vietnamese colleagues.12

Joint exploitation
The new Philippine President Rodrigo Duterte, trying to avoid a confrontation with China, in 2016 pragmatically decided to 'shelve' the favourable South China Sea arbitration award in exchange for Chinese investments in his country.

China's other maritime neighbours have been increasingly seeking a more confrontational stance through the internationalisation of disputes and by means of international law

In addition, both countries started negotiations on the joint exploitation of gas fields within the Philippine EEZ.13 It appears that China, by exerting pressure on Vietnam, Malaysia and possibly even Indonesia, is seeking to enforce a similar construction of joint exploitation with these countries.14

Internationalisation and international law
Lately, China’s maritime neighbours have been increasingly seeking a more confrontational stance through the internationalisation of disputes and by means of international law.

Malaysia’s foreign minister recently called the Chinese claim to the South China Sea outright “ridiculous” and even submitted a new claim to the United Nations on waters within the Chinese nine-dash line.15 In November 2019, Vietnam also raised the idea of initiating an arbitration case against China, just as the Philippines did.16

Indonesia recently explicitly referred to the 2016 Philippines-Chinese arbitration ruling in response to Chinese violations of the Natuna Island waters.17 In June, even the Philippines hinted at resuming unilateral oil and gas exploration, possibly in response to the perceived Chinese aggression during and in the wake of the COVID-19 pandemic.18

Also in June, the leaders of the Association of Southeast Asian Nations (ASEAN) issued a joint statement, underlining in unusually strong terms the importance of the UNCLOS.19 This was followed in July by a statement from US Secretary of State Mike Pompeo rejecting China's claims to the offshore sources in “most of the South China Sea”, thus further aligning the US position on China's maritime claims with the 2016 arbitral award.20

A new normal
A 'new normal' seems to be emerging in the region. Any attempt by China's neighbours to exploit oil and gas in the area within the controversial Chinese claim line is instantly confronted and deterred by intimidation.

Nevertheless, the other countries increasingly view the South China Sea arbitration – albeit completely ignored by China – as a model to bring at least legal clarity about China’s non-compliance with international law.

The French aircraft carrier 'Charles De Gaulle'. © Wikimedia Commons
The French aircraft carrier 'Charles De Gaulle'. © Wikimedia Commons

A European perspective: the Eastern Mediterranean

There is good reason for Europe to monitor the South China Sea situation, as discussed earlier in 2017.21 As mentioned before, not only is the legitimate extraction of oil and gas in the area under threat, but the UNCLOS itself is structurally being undermined by Chinese claims beyond UNCLOS and by Chinese intimidation based thereon.

Closer to home, Europe itself is being confronted with the erosion of the UNCLOS in the Eastern Mediterranean Sea and the Aegean Sea. For decades a conflict has played out between Turkey and Turkish Cyprus (officially: the Turkish Republic of Northern Cyprus, or TRNC) on the one hand, and Greece and Greek Cyprus (officially: the Republic of Cyprus, or Cyprus in short) on the other.

Turkey in particular has a very unique and controversial interpretation of the law of the sea

Especially after the discovery of considerable gas reserves around Cyprus in the last decade, the Cyprus conflict has increasingly taken on a maritime dimension, and here, too, the conflict has deepened in recent years. In this context, Turkey in particular has a very unique and controversial interpretation of the law of the sea.

Cyprus gas dispute
When oil and gas were found south of Cyprus in December 2011, this discovery initially appeared to be an incentive for a peaceful resolution of the conflict on Cyprus, an island state divided since 1974 between the Republic of Cyprus on the one hand, and the TRNC – recognised only by Ankara – on the other.
22

Ever since, however, the gas reserves found proved to be more of a dividing point rather than a blessing for the island state; drilling for gas has led to several confrontations which have already been likened to the conflicts in the South China Sea.23

Unlike Cyprus and Greece, Turkey is not a signatory to the UNCLOS and, as such, the country applies its very own and controversial interpretation of the law of the sea

Turkey itself has not yet found any gas in the waters it claims. The country, however, is also claiming large portions of the EEZ claimed by Cyprus. The dispute now seems to have entered a new phase with the acquisition and deployment by Turkey of three drilling vessels.24

In 2018, the Turkish navy chased away a vessel from the Italian oil company ENI that intended to operate in the waters east of the island on behalf of the Republic of Cyprus.25

Moreover, since 2019, Turkish research and drilling vessels, escorted by the Turkish navy, have themselves been searching for oil and gas within the EEZ claimed by the Republic of Cyprus. These assertions are based on a controversial double Turkish maritime claim to the sea around Cyprus.

Twofold Turkish maritime claim around Cyprus
Unlike Cyprus and Greece, Turkey is not a signatory to the UNCLOS and, as such, the country applies its very own and controversial interpretation of the law of the sea. In Turkey's view, islands opposite to the mainland produce either none or fewer entitlements to an EEZ than would be the case under the widely accepted UNCLOS – as ratified by both Cyprus and Greece.
26

Consequently, Turkey may claim indirectly, via and on behalf of the TRNC large parts of the coastal waters to the north and east of the island. On the other hand, Turkey directly lays claim to large swathes of the waters to the west and even to the south of Cyprus as being part of Turkish waters with corresponding exploitation rights.27

Turkish and Cypriot oil and gas concessions. © Stratfor
Turkish and Cypriot oil and gas concessions. © Stratfor

'Mavi Vatan': A Turkish nine-dash line?
By the end of February 2019, Turkey's largest naval exercise ever was held, called ‘Mavi Vatan', which translates into English as 'Blue Homeland'.

Mavi Vatan, however, not only refers to the large-scale parallel navy exercise in the Black Sea, Aegean Sea and Mediterranean Sea, but also to a fairly new Turkish maritime geopolitical concept that seems to have gained political weight, especially in 2019, with Turkey’s President Recep Tayyip Erdogan, who is clearly not trying to hide the (maritime) aspirations he holds for his country.28

Much to the dismay of Cyprus and Greece, President Erdogan had himself photographed last September in front of a map of Turkey, entitled 'Mavi Vatan', on which large segments of the Black Sea, Aegean Sea and Mediterranean Sea seem to belong to Turkey.29

President Erdogan signs the visitors book at the National Defense University in Istanbul. © Ekathimerini
President Erdogan signs the visitors book at the National Defense University in Istanbul. © Ekathimerini

There is, however, little clarity about the exact meaning of the lines on this Mavi Vatan map, and therein lies a clear parallel with the never exactly defined Chinese claim through the diffuse nine-dash line surrounding the South China Sea.

Turkish-Libyan memorandum 
In accordance with this Mavi Vatan doctrine, in November 2019 a controversial Turkish memorandum with the government of civil-war torn Libya once again alarmed Greece in particular, as Turkey and the Libyan government agreed to ‘divide’ a stretch of the Mediterranean Sea without taking into account the Greek maritime entitlements around Crete, Rhodes and Karpathos, thereby connecting the Cyprus issue with the Libyan – and indirectly even with the Syrian – civil war.
30

Turkey, envisaging itself as a future gas hub in the region, aims among other things to hinder the planned construction of the EastMed pipeline through this agreement, which would side-line Turkey as a gas hub.31

The Turkish-Libyan memorandum. © Anadolou Agency
The Turkish-Libyan memorandum. © Anadolou Agency

Escalation 
At present, further escalation is imminent. The European Union already recently imposed limited sanctions on Turkey for drilling in Cyprus' claimed EEZ.
32

In 2018, the United States sent a naval vessel to shield ExxonMobil's drilling operations near Cyprus from Turkish interference, and has recently reinforced its defence ties with both Cyprus and Greece.33

Meanwhile, Cyprus has expressed the intention to turn to the International Court of Justice in The Hague for a solution to the conflict over maritime delimitation

France has also expressed its support for Greece and Cyprus. In February the country sent the aircraft carrier 'Charles De Gaulle' into the region to highlight this.34

In July, the Greek and Turkish navies reportedly almost clashed over a planned Turkish seismic survey near the Greek island of Kastellorizo.35

To The Hague?
Meanwhile, Cyprus has expressed the intention to turn to the International Court of Justice (ICJ) in The Hague for a solution to the conflict over maritime delimitation. For the moment, Turkey does not seem to be interested in such an approach, if only because it does not officially recognise the Republic of Cyprus.

However, prior consent of Turkey is required in order to have the ICJ involved, since Turkey is not a party to the UNCLOS.36 In Greece, too, there are calls in favour of persuading Turkey to accept arbitration.37

Corona moratorium
Because of the COVID-19 outbreak, oil and gas exploration is largely halted. The current corona-induced moratorium and the low oil prices provide an excellent opportunity for all parties to buy time and – without losing face – anticipate the option of creating legal clarity on maritime delimitation through mediation, arbitration or through the ICJ.

Turkey's recent announcement that it will continue to explore and drill for gas and even step up its efforts, in spite of the corona crisis, is a missed opportunity to de-escalate and show goodwill.38 Europe needs to make this clear to Turkey and can decide whether or not to lift (or increase, for that matter) sanctions depending on Turkish cooperation.

The present position of the Republic of Cyprus is to only discuss a distribution mechanism after an eventual political solution for the divided island

Although a Turkish-Cypriot maritime delimitation is technically distinct from an internal political solution to the division of the island of Cyprus itself, such a delimitation brings to the fore the issue of distribution of potential Cypriot gas revenues between the two communities.

Cyprus seen from the air at night. © Stuart Rankin / Flickr
Cyprus seen from the air at night. © Stuart Rankin / Flickr

The present position of the Republic of Cyprus is to only discuss a distribution mechanism after an eventual political solution for the divided island. Here too, Europe could play a role in persuading Cyprus, in anticipation of such a final settlement, to already agree on a distribution formula and mechanism with the TRNC.39

A unique opportunity
Legal clarity in the Eastern Mediterranean Sea is of significant economic and political importance, not only for the parties involved, but also for the standing of the law of the sea in general.

This year, China has already made clear that it is not interested in de-escalation in the South China Sea, thereby further straining the position of the UNCLOS. However, in the Mediterranean Sea, the corona crisis is currently presenting Europe with a small yet unprecedented opportunity to de-escalate and strengthen the law of the sea. Let us not waste it.

Auteurs

Friso Dubbelboer
Political scientist, information specialist and publicist