Jonathan D. Greenberg, Lecturer in Law and Public Policy, Stanford University, and Counsel, Heenan Blaikie LLP
For Professor Srđjan Darmanović
The coming into force of the United Nations Convention on the Law of the Sea (UNCLOS) launched a revolution in global political economy and the legal structure of international relations. In one fell swoop, the world’s coastal states received perhaps the greatest economic windfall in the political history of the world: monopoly rights over vast portions of the world’s oceans that had previously been regarded, from time immemorial, as global commons. At the same moment, they assumed unprecedented new obligations to sustainably govern these enormous maritime territories. For the first time in the history of political geography, coastal states are well-positioned to delimit and effectively manage huge offshore zones under a well-formed regime of legal procedures, protections, rules and rights.
Why, then, are they often failing to do so? If well-developed law exists and enables states to govern defined maritime areas adjacent to their coasts, why are there so many unresolved maritime disputes? If maritime boundary delimitation methodology is clear and the benefit of its application so high, why are so many boundaries not delimited? I discuss several alternative strategies that states can pursue to achieve successful results, especially when negotiations are stuck, and longstanding disputes never seem to go away. First, to set this discussion in historical context, it is necessary to understand how the international system operated before and after UNCLOS came into force.
What is a state?
Max Weber insisted that this question be answered sociologically: “a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.” Several corollary principles follow. First, when a state fails to obtain such a monopoly, we understand that it has failed in its core function, and it becomes a security nightmare for everyone in its neighborhood, or beyond. Of course a state can also abuse its monopoly of violence through authoritarianism and repression; but no one doubts that a totalitarian state is a “state”.
Second, as Weber notes, “’territory’ is one of the characteristics of the state.” In turn, this territorial component of state power is congruent with the legal concept of national jurisdiction, the prescribed boundary within which a nation’s laws can be enforced by its judicial and police authorities. Thus the English common law provides that “all legislation is prima facie territorial.” As summarized by Mr. Justice Holmes in American Banana v. United Fruit Co. (1908):
Law is a statement of the circumstances in which the public force will be brought to bear upon men through the courts. But the word commonly is confined to such prophesies of threats when addressed to persons living within the power of the courts.
Third, implicit in Weber’s formulation is the idea that a state has the right to self-defense, i.e. to defend its territorial borders and the people living within them. Indeed, absent extraordinary circumstances (e.g. UN-endorsed international intervention following Iraq’s 1991 invasion of Kuwait; NATO bombing of Serbian artillery outposts in the hills above Sarajevo, 1994-95), no institution other than the state can play this role.
Note that each of these concepts – territory; jurisdiction; self-defense; the monopoly of physical force – is subject to precise geographic constraints. Specifically, and again absent extraordinary circumstances (e.g. the same exceptional examples noted above), the exercise of legitimate state authority is limited to the physical areas defined by demarcated land boundaries on international or regional maps.
As a result, across the vast expanse of human history, states had no legitimate jurisdiction or control over the world’s oceans or seas. The territory defining state power and its exercise, stopped at or very near the water’s edge.
This fundamental limitation on state authority, its confinement to the physical territory of land boundaries, was an inherent, defining characteristic of the nation-state from its emergence in the early modern era until a revolution in international law took place the late 20th century. This revolution happened suddenly (indeed, on a precise date: December 10th, 1982), when the United Nations Convention on the Law of the Sea (UNCLOS) was signed by 119 countries on the first day it opened for signature.
In sum, the history of the past 500 years and perhaps a thousand years is inseparable from the history of the evolution of the nation-state as the dominant political organization of human communities, and the primary unit of international relations. But the emergence of UNCLOS represents a revolutionary, transformative moment in that history – vastly expanding the territorial reach and resource control of coastal states.
The international legal history of the oceans
In Mare Liberum, (“Freedom of the Seas,” published in 1609), the Dutch legal scholar Hugo Grotius, argued that the ocean’s bounty is inexhaustible, as limitless as the air; and thus, it “cannot become a possession of any one.” It was assumed, common knowledge at the turn of the 17th century and indeed for the subsequent four hundred years or more, that the ocean’s fish and seafood stocks, and its abundant mineral resources, could never be depleted. Thus, there was no need to divide up the seas into zones belonging to one state or another. States had no legal monopoly over any ocean resources, and no rights to exclude competitors from even their adjacent seas.
The only exception, suggested in the discussion above, was a narrow security belt adjacent to a state’s coast in which customary law recognized a right to self-defense. This exception was suggested by the principle: terrae potestas finitur ubifinitus amorum vis (“the dominion of the land ends where the power of law terminates”). Hence, the legal fiction that “dominion of the land” could be deemed to extend into the immediately adjacent water of a coastal state, but only and precisely as far as early modern artillery, positioned on a seacoast bluff, could fire projectiles to protect the state’s land border.
Eventually this exception evolved into a coastal state’s legal right to claim sovereignty over a three-mile territorial sea. Why three miles? Because three miles was used as a proxy for the furthest expected distance a cannonball might reach if launched from the shore , hence the territorial boundary became known as the “cannon shot” rule. If a state had the naval power or police capacity to exclude unwanted fishing vessels or commercial ships beyond the three-mile limit they might act accordingly, but they could not claim the authority or imprimatur of international law. Actions vis-a-vis other states or foreign naval powers, commercial vessels or fishermen beyond that narrow limit were subject to no recognized law or rules at all.
In this system the principle of “freedom of the seas” coincided with the development of naval capacity among Europe’s imperial states, and, more importantly, commercial fishing fleets. Freedom to navigate and explore without interference from competitors went hand in hand with freedom to exploit the resources discovered, and in the case of migrating fish stocks, to chase and harvest them across vast distances from the fleet’s home country. To the victor belonged the spoils. The oceans’ bounties beyond the cannon-shot range were free to all – or whoever got there first and could defend themselves. Thus, as one might predict, the system generated incentives to overexploit discovered resources and to generate conflicts between major powers at sea. “Free to all” evolved into a commercial and often military “free-for-all” of European resource competition throughout the seven seas.
Exploding energy demand and the unrelenting global hunt for oil
Garrett Hardin’s The Tragedy of the Commons wasn’t published until 1968. But the biological limits of living resources, the risks of overexploitation generated by open access to common resource pools, the resulting depletion of the most valuable fisheries, and the corresponding threats to endangered species – all of these features of unregulated commons highlighted by Hardin’s essay, at the dawn of the “international environmental movement,” played out at the dawn of Europe’s imperial expansion.
Consider, for example, the rise of the European whaling industry in the early 1600s, and the immense economic activity it generated over the next two hundred years, until its demise with the near extinction of the bowhead whale in its traditional habitat in the North Atlantic and Arctic Seas. (See John F. Richards’ brilliant account of this history in The Unending Frontier: An Environmental History of the Early Modern World, University of California Press, 2003). Basque, French, English, Dutch, German, Russian, Danish, and Swedish whaling fleets – respectively financed by royal endowments, state commissioned monopolies, national banks, chartered trading corporations (such as the Dutch Noorsche Compagnie), and multinational business conglomerates (such as the Russian-British Muscovy corporation) – competed with each other to capture the richest hunting grounds. Over the subsequent decades extensive disputes erupted between states concerning their respective commissioned whaling fleets and the control over harvests.
What pushed the whaling industry to such extremes? Among many factors, the most important was the hugely increasing need to secure energy supplies for the national domestic market, and the corresponding colonial and global energy market demand. Street lamps had transformed the nightlife of Europe’s cities; the provision of abundant artificial light enabled municipal denizens to enjoy the cosmopolitan life, and to travel by coach across roads and boulevards, after sunset, and what was first a wonder swiftly became a necessary expectation of urban dwellers. These energy demands were satisfied by the achievement of a secure infrastructure guaranteeing sufficient harvesting of whales, and the extraction, transportation and delivery of their oil to light up Paris, London, and every other modern city and town across the continent.
As for the whales, demand outstripped supply. The eastern Arctic Bowhead whale, the oil of which was especially high quality, and thus highly in demand, became nearly exterminated as a species. Its breeding grounds, in the waters between Greenland and Spitzbergen, had been harvested by too many competing whaling fleets. According to Robert C. Allen and Ian Keay’s accounts in their article “Bowhead Whales in the Eastern Arctic, 1611-1911”, the Bowhead whale adult population had numbered tens of thousands in the early 1600s, vastly diminished by the late 1700s, and was eventually reduced to near zero.
Harry S. Truman and U.S. petroleum strategy
From 1609, we navigated, explored and exploited the oceans according to the principles of Mare Liberum But the Grotian faith in limitless ocean resources turned out to be ill-founded, and the old rules became a recipe for ecological disaster.
In the mid-20th century, the Grotian system came to an end. It was not because of environmentalism; although, to be fair, its demise coincided with an understanding that fisheries were being decimated and states had very little power to restore them.
The first step was initiated by U.S. President Harry S. Truman. The Truman Proclamation that was issued on September 28, 1945 unilaterally claimed for the United States exclusive jurisdiction over all living and nonliving natural resources on the subsoil and seabed of its entire continental shelf. The proclamation, emerging from U.S. federal inter-agency strategic deliberations initiated by FDR in the last years of the war, was based above all on considerations of post-war domestic economic development. Specifically, the proclamation states that “the Government of the United States of America, aware of the long range world-wide need for new sources of petroleum and other minerals holds the view that efforts to discover and make available new supplies of these resources should be encouraged.” The form of such “encouragement” would be the assertion of U.S. monopoly control and management of hydrocarbon development in the vast new offshore territory for the exclusive benefit of U.S. commercial oil producers and consumers,
On June 23, 1947, Chile followed suit, proclaiming sovereignty over its continental shelf throughout a 200-mile zone from its mainland coast, although it did so for a different reason: in an effort to restore its commercial whaling industry. Then Peru, trying to protect its tuna stocks from U.S. fishing boats, followed suit along with Equator and Argentina. Within thirty years, 27 coastal states in regions throughout the world had joined Chile in following Truman’s example. Multilateral initiatives emerged in an effort to harmonize maritime boundary rules. A 1967 speech to the United Nations General Assembly by Arvid Pardo, Malta’s UN Ambassador, spoke eloquently of the need to protect ocean ecosystems. In 1973, the UN Conference on the Law of the Sea was convened; its work concluded less than a decade later.
Success in achieving this goal, in the face of extraordinarily difficult challenges and next-to-impossible odds, can be attributed in large measure to the enormous diplomatic skill, tireless effort and personal dedication of Singapore’s Tommy Koh, the Conference President. Of course, UNCLOS reflected the collaborative effort of statesmen and legal experts from all of the participating countries — most especially the United States — but the enormous barriers to consensus among coalitions of states representing the post-war geopolitical fault-lines would arguably not have been overcome without Koh’s procedural creativity, negotiation process design, and logistical finesse.
Today, among the world’s large, highly developed nations, there is only one holdout: the United States. Our failure to ratify the Convention is ironic, given America’s leading role in the UNCLOS negotiation process. Moreover, it is extremely misguided, as the United States is the treaty’s greatest beneficiary. At U.S. insistence, UNCLOS confirmed in law the fundamental principle of navigational freedom (including the right of U.S. military and commercial vessels to transit through international straits, and U.S. submarines to pass through them). Moreover, UNCLOS recognizes U.S. territorial expansion greater than any nation on earth, effectively extending American control over resources across a vast area larger than the entire U.S. land mass.
John Norton Moore headed the Nixon Administration’s federal interagency process to design and implement U.S. strategy for the multilateral negotiations leading to establishment of UNCLOS. In Moore’s account, “…the United States was overwhelmingly the leader in this negotiation… This is one in which the United States led and the United States won.”
However, rather than maintain our leadership in shaping the modern international law of the world’s oceans, the U.S. today stands with a small minority consisting of small land-locked states, for example Bhutan and Andorra, for which little benefit will flow from ratification, and a variety of authoritarian states including the Burundi, Democratic Republic of the Congo, Cambodia, Iran, North Korea and Syria.
The UNCLOS Revolution
Eventually, the United Nations sponsored a convention of all member states to draft the new law of the sea. By the time UNCLOS came into force, the “winner-take-all” system that defined the international law of the sea for many centuries had rather suddenly come to an end. In its place emerged a system that enormously bolstered the power of nation-states with coasts adjacent to seas and oceans, with the greatest benefit accruing to those countries, such as the United States, with the longest total amount of coastlines.
The new system shifted power from the agents who could finance and sponsor the largest and most powerful fleets and resource extraction technologies, wherever they might have been based, to nation-states with the greatest proximity to offshore areas; and at least arguably, the greatest ability to effectively regulate, sustainably manage, and efficiently develop the great bulk of the world’s ocean resources. Grotius is dead and buried, and for the long foreseeable future we live in an UNCLOS world. Today in the 21st century, success in securing claims to offshore territories, and capturing valuable hydrocarbons and fisheries, depends on the coastal state’s mastery of the complex detailed rules, procedures and methodologies that form modern law of the sea — and effectively utilizing them for national gain, hopefully for the benefit of the nation’s people.
Where do the state players locate the rules, especially as these rules continue to be refined, and new approaches promulgated. Actually, these rules are quite easy to find. They are published in documents anyone can download from the internet. The rulebook is the text of the Convention itself. Advanced players must refer, in addition, to the judgments of the International Court of Justice (ICJ) and other international tribunals that provide necessary assistance in the in the evolving jurisprudence of international tribunals interpreting and applying the Convention’s provisions.
Specifically, UNCLOS provides that the sovereignty of each coastal state extends to an adjacent “territorial sea” up to twelve nautical miles measured from the coastal baselines, and it provides that each coastal state can claim “rights and jurisdiction” over natural resources in an “exclusive economic zone” (EEZ) extending up to 200 nautical miles from these baselines. UNCLOS further enables states to assert sovereign control over maritime areas above a states “extended continental shelf” extending up to 350 nautical miles from the adjacent coast.
Moreover, UNCLOS establishes or confirms legal rules for delimiting boundaries, rules that have been interpreted with clarity and precision in relevant judgments of the International Court of Justice over the subsequent years. In effect, an UNCLOS jurisprudence of maritime boundaries has evolved and developed to establish clear norms and standards for delimitation to be established, a well-settled methodology for their implementation, enabling coastal states to exercise jurisdiction within them in accordance with fundamental principles shared by all nations.
The persistence of maritime boundary disputes
At the final session of the UNCLOS Conference, in Montego Bay Jamaica, Koh asked “whether we achieved our fundamental objective of producing a comprehensive constitution for the oceans which will stand the test of time.” Koh answered this question with a resounding “yes”, as one might imagine. Among other claims, he argued that “[t]he Convention will promote the maintenance of international peace and security because it will replace a plethora of conflicting claims by coastal States with universally agreed limits on the territorial sea, on the contiguous zone, on the exclusive economic zone, and on the continental shelf.”
However, three decades later, many maritime boundary disputes (and related conflicts over offshore resources) continue to strain the bilateral relationship between coastal neighbors. In some cases, these disputes threaten to destabilize a region’s waters.
To briefly identify some prominent examples, let’s start with Japan, an aggrieved claimant in a maritime neighborhood filled with a number of unresolved disputes:
Russia calls them the Kurile Islands; Japan, the “Northern Territories”; the unresolved status of these islands continues to prevent Japan and Russia from signing a peace treaty to officially end World War Two.
Between China and Japan we find islets (claimed as the Diaoyudao Islands in the one, the Senkaku Islands in the other) remaining subjects of contention, notwithstanding a 2008 bilateral agreement “to make the East China Sea, of which the delimitation between China and Japan is yet to be made, a ‘sea of peace, cooperation and friendship’.” In2010, a Chinese fishing trawler collided with two Japanese coast guard vessels, and the Japanese arrested and detained a Chinese fishing boat captain, warning China to stop trespassing into areas under Japanese control. Just this month (July 2011), China’s foreign ministry called on Japan to withdraw its fishing boats from the same waters, a call rebuffed by Japanese Foreign Minister Takeaki Matsumoto with the assertion of Japan’s “incontrovertible sovereignty” over the Senkaku Islands; they are “an integral part of Japan,” he explained; “and there is no territorial issue to be resolved.”
To avoid offending either party, the Times Atlas of the World (9th edition) identifies the “Liancourt Rocks” between Korea and Japan; but Korea, which controls them (also since 1945) calls them the Dokdo Islands, while in Japan they remain the Takeshima Islands. Both states assert historic title, and each celebrates its nation’s sovereignty over them in songs, stamps, holidays, and underwear (you can look it up on Google images).
I do not mean to suggest that Japan’s situation is unique, except to the extent that each maritime boundary and/or sovereignty dispute has unique, historically-determined features (in Japan’s case, these stem from the history of 20th century Japanese imperialism and its collapse in the concluding phase of the Pacific War). On the contrary, comparably intractable maritime disputes are found in each of the world’s major seas:
Other disputes in Asian waters:
Thailand and Cambodia have long contested a large and especially hydro-carbon rich patch of the Gulf of Thailand. Both states claim title to the entire area, and each state has licensed exploration rights respecting overlapping blocks to competing international oil companies (IOCs). As a result, access to the oil and gas deposits are effectively “locked up,” inaccessible to either state, as no IOC can risk proceeding with exploration activities under the circumstances.
Nearby, in the Celebes (Sulawesi) Sea, off the east coast of East Kalimantan (Borneo), lies another highly prospective oil patch (Ambalat) claimed by Indonesia and Malaysia. It too has been subject to overlapping concessions (held, on the one hand, by Malaysia’s state oil company, Petronas, in partnership with Royal Dutch and Shell; and, on the other hand, by a competing group of U.S. and Italian IOCs). An off-again, on-again “joint commission” has made efforts to negotiate a solution over the years, but recurring incidents of military confrontation, or at least the threat of such, keep tensions simmering.
Last but certainly not least are the sovereignty and resource disputes in the South China Sea (Brunei/China/Malaysia/Philippines/Taiwan/Vietnam, the mother of all maritime boundary) as discussed by Jörn Dosch in this symposium issue).
Unresolved disputes in Africa and the Middle East:
- In the Gulf of Guinea (Equatorial Guinea/Gabon, regarding sovereignty over three islands in Corisco Bay, and the oil resources surrounding them);
- In the Indian Ocean (including un-delimited boundaries between Kenya/Comoros, Kenya/Somalia, Madagascar/Mozambique, complicated by sovereignty disputes over Juan de Nova and other island; Mozambique/South Africa, and Tanzania/Comoros);
- In the Persian Gulf (such as Iran/Bahrain, Iran/UAE, Bahrain-Qatar, among others).
In the Americas:
- In the Pacific Rim of Latin America (Chile/Peru; Belize/Guatemala; Honduras/Nicaragua/El Salvador; Nicaragua-Colombia; Venezuela/Dominica regarding the impact of Aves Island, a large guano- covered rock, on each country’s respective EEZ delimitation);
- In the Gulf of Mexico (US/Mexico, depending on the extent of overlapping continental shelf claims brought by each state in the highly petroleum-enriched area known as “the Western Gap”, adjacent to the recent Deepwater Horizon disaster).
- In the Adriatic Sea (Croatia/Slovenia, regarding territorial boundaries and Slovenian access to the sea; Croatia/Montenegro, regarding the Prevlaka Peninsula and surrounding waters);
- In the Aegean Sea (never forget or under-estimate the resilience of maritime disputes between Greece and Turkey);
- In the Caspian Sea (many ongoing disputes between Turkmenistan/Azerbaijan/Iran/Kazakhstan in multiple combinations);
- In the Mediterranean Sea (Israel/Lebanon, a disputed maritime boundary including overlapping claims to the Leviathan oil and gas basin; and Algeria/Cyprus/Greece/Malta/Italy/Spain/Syria regarding trans-boundary fisheries management and overlapping “Special Protection Areas”).
In the global north:
- In the Arctic Sea (Canada/Denmark, over a tiny guano-filled rock called “Hans Island”; potentially all of the Arctic states, over access to potentially vast hydrocarbon deposits, depending on the mapping of their extended continental shelf claims);
- In the Beaufort Sea (Canada/U.S, a dispute about territorial boundaries in the context of highly prospective hydrocarbon deposits beneath overlapping claims, and trans-boundary fisheries management);
- In the Gulf of Maine (again US/Canada, regarding Machias Seal Island and North Rock and surrounding waters and fisheries);
- Respecting the Northwest Passage (Canada claims sovereignty over all waters adjacent to the Canadian Arctic Archipelago, thus enabling prohibit transit through them; in contrast most coastal states U.S. and the E.U., regard the Northwest as international strait, thus securing the right of “transit passage” for all ships. This longstanding dispute, dormant for decades, has become intensified as a result of recent dramatic increases in annual sea-ice melt and corresponding increases in the capacity of ships to navigate through the passage during a longer summer period.
All told, and depending on how you take into account boundary segments, there are somewhere between 360 and 425 such potential maritime boundaries throughout the world’s seas. (In other words, coastal states have received right to claim all such zones and delimit such boundaries, to enormous national benefit.) However, in roughly half the cases (somewhere in the 200 range) they have not done so, and thus the demarcation of state jurisdiction in each of these cases is potentially or actively in dispute.
In evaluating UNCLOS implementation thus far, is the glass half empty (suggesting a bad grade for the regime, and a poor prognosis for its ultimate success) or half full (suggesting that we are in a transitional process toward a near-comprehensive implementation)? so many maritime boundary disputes persist year after year. , Should we be terribly depressed or only moderately disheartened about this? My argument is that we should be only moderately disheartened (at least regarding the issue of maritime boundary delimitation and island sovereignty disputes; unfortunately, the outlook on state responsibility to manage ocean ecosystem sustainability appears, at this point, to be direr). With regard to boundary disputes, I see the glass as half full, or more. Assuming that the U.S. eventually joins UNCLOS as a member state, I believe that Koh’s triumphant predictions concerning the long-term success of the Convention will be vindicated in the end.
Why do these disputes persist?
“All happy families resemble each other,” Tolstoy wrote of the Kareninas, “but each unhappy family is unhappy in its own way.” The same is true for unhappy coastal neighbors; each boundary, sovereignty and resource dispute has its own unique features. Still, common patterns can be found, and these fall into recognizable cohorts.
First, the UNCLOS regime does nothing to change the fact that states possess highly unequal allotments of military, political and economic power. Nor does it reduce the temptations of states to utilize this power against weaker states for age-old reasons in age-old ways, including at sea. Recognizing each coastal state as equal in rights (with differential legal powers distributed only according to the size and geography of coastlines) is a legal fiction. But it can be a powerful fiction, very powerful, available for effective use even by militarily and economically weaker states, if they learn to use UNCLOS rules strategically, effectively, in defense of the state’s legal rights.
Second, corollary effects of relative political, military or economic weakness are likely to include insufficient legal and bureaucratic capacity to maximize gains that could be achieved by forceful and sophisticated advocacy to secure UNCLOS-guaranteed rights. Professionals with advanced legal and scientific knowledge are lacking. Without necessary technical expertise (in geology, hydrography, and other fields) the production of required charts (indicating geodetic datum as well as mapping coordinates) based on accurately surveyed maritime areas and continental shelves, cannot occur. This is difficult for wealthy states, let alone poor ones. Expert technical consultants and accomplished international lawyers must be retained, each at high hourly rates, exceeding agency budgets.
Third, in cases where adjacent resource-rich waters suggest negotiated boundary delimitation as by far the preferred outcome from an economic point of view, strategic problems often arise. States can use various arguably-legitimate methods to define the coastal baselines from which boundaries are drawn, thus maximizing their respective EEZ claims. Since the same incentives exist on both sides of the equidistant line, the effect will be an overlapping claim zone, in which each state exercises an effective veto to the other state’s exploration and extraction activities, thus locking up the resources pending a future settlement. This might have positive unintended consequences for environmental conservation, although this is by no means necessarily the case. It will certainly generate negative consequences for developing states seeking greater energy independence or revenue streams for economic development.
Fourth, the discovery of oil hydrocarbon resources (and to a lesser extent, the existence of fisheries) in these areas often exerts a poisonous effect on domestic politics (the extent of political toxicity roughly equal to the expected size and value of the offshore resource) that induces inter-agency logjams, decision-making paralysis, and, in the worst cases (which are unfortunately not infrequent), the eruption of aggressive, militant strains of resource nationalism.
Just to be clear, I am not referring only about authoritarian regimes or banana republics. These problems are often just as challenging, or even worse, for state leaders in democratic political systems, as they must satisfy constituents who can easily switch allegiances to competing leaders or parties with the next election cycle or parliamentary no-confidence vote.
Ironically, perhaps, decision-makers in authoritarian regimes, without the need to respond to a broader constituency beyond an inner circle of domestic stakeholders, might have the power to solve the problem by making compromises that promote joint development of resource revenues over more “principled” (absolutist) sovereignty claims. Authoritarians can be pragmatists when it comes to boundary delimitation provided that they effectively capture the revenues for themselves and the coalition of elite power-brokers and economic stakeholders that must be rewarded in return for providing necessary support for their regime. Thus non-democratic states (with the assistance of each state’s respective international lawyers) can potentially be more effective at achieving economically beneficial solutions to maritime boundary and resource disputes.
How states effectively delimit boundaries, even in difficult cases
Reflecting on the persistence of maritime boundary disputes surveyed above, and the roughly 200 potential maritime boundaries that remain un-delimited (out of a total cohort of roughly twice that number), I remain convinced that UNCLOS cup is half-filled rather than half-empty.
First, the record of 200 or so successfully negotiated boundary delimitation agreements is, to my mind, a stunning achievement. After all, these agreements were reached, following inherently difficult, lengthy and complex bilateral negotiations, in a period of only 30 years (a brief moment in the centuries-long history of ocean resource competition).
Second, agreements have been reached in many cases by highly competitive rivals, regarding whom the common wisdom suggested no such agreements were possible. To take a recent example, consider the
Norway/Russia maritime delimitation in the Barents Sea (September 15, 2010) including provisions on coordinated exploitation of trans-boundary hydrocarbons.
Third, a large number of the un-delimited cases (and, thus, “unresolved disputes”) involve no known resources to fight about. No oil and gas deposits, no especially valuable fisheries. Others might have such resources in limited amounts, or perhaps there is already a sustainable and acceptable modus vivendi in place between neighboring sets of fishermen. In sum, there might in fact be no substantial dispute between these adjacent states. Perhaps a bilateral “live-and-let live” regime is good enough to keep fishermen sufficiently employed, and neighborly relations sustained, to deem the initiation of difficult, multi-year boundary negotiations not worth the effort and costs involved. These neighbors might not be so unhappy after all.
Fourth, many cases just take a long time to sort out. Take, for example, the boundary dispute between the United States and Canada in the hydrocarbon-rich Beaufort Sea. We are best friends, with the best intentions, the best technical experts, the best lawyers (i.e. the highest possible level of state capacity and political will, on both sides, to reach a peaceful, amicable, reasonable settlement). Yet we have not done so. What is stopping us? We have likely been engaged in preliminary negotiations (I am not privy to this diplomatic information), but they have not gone very far, because both sides remain engaged (independently and in cooperative bi-national efforts) in the slow, lengthy process of gathering all relevant geological, hydrographic, environmental, climactic, and petroleum-related data necessary to achieve an optimal result. Both states can afford to go through this process cautiously, deliberately and patiently, go slowly on the assessment of potential offshore oil and gas development, and it is wise to do so, especially in ice-covered Arctic waters in the aftermath of the Deepwater Horizon catastrophe.
An unprecedented era of international adjudication
Moreover, there have been a growing number cases in which disputing states, with a great deal at stake and challenging domestic pressures to resist compromise, have willingly agreed to hand over the question of their future rights (boundaries, sovereignty, access to fisheries and oil and gas deposits) to a neutral adjudicator, whether the ICJ, or the Permanent Court of Arbitration, or the special International Tribunal for the Law of the Sea (ITLOS), which recently received its first case (Bangladesh/Myanmar boundary delimitation).
Believe it or not, for example, the United States and Great Britain nearly went to war in 1859, over an increasingly violent sovereignty dispute respecting the San Juan Islands (in the Straits of Georgia between the coasts of Washington State and Vancouver Island). At the “11th hour,” averting catastrophe, the Americans and British Canadians agreed to submit the case to Kaiser Wilhelm, the German Emperor, who following arbitral hearings on the legal issues involved, awarded the islands to the United States in 1872. But there has been nothing comparable in international history to the total volume of maritime boundary and related sovereignty disputes submitted to neutral third party adjudication under UNCLOS.
The effective transformation of complex, hostile geo-political and military disputes (with enormous economic consequences) into legal matters for judicial review, and the acceptance by both parties of the tribunal’s determinations, is entirely unprecedented, and highly encouraging. Agreeing to submit claims to courts, and accept judicial awards regardless of the outcome, states effectively renounced self-help options that they might otherwise have asserted in the past.
In turn, these cases have led to the gradual development of a UNCLOS jurisprudence resolving a wide range of technically complex problems in the delimitation process that had previously presented barriers to a negotiated resolution. For example, the 2009 ICJ judgment delimiting the maritime boundary between Romania and Ukraine in the Black Sea provides extremely useful guidance to states embroiled in sovereignty and boundary disputes about the delimitation effects of small, uninhabited islets (i.e. they generate a 12 mile territorial sea but do not generate an EEZ, nor do they effect the boundary delimitation from the adjacent states), guidance with extremely useful potential application to the ongoing conflicts in the South China Sea, and other like cases.
The ICJ and other tribunals can enable states, unable to achieve a negotiated settlement of differences, to delimit maritime boundaries by means of legal processes, principles and judgments, in furtherance of international rule of law. They also offer politicians a “way out” of the domestic political dilemmas suggested above; i.e. they allow state leaders to achieve solutions to economically-costly disputes while, at the same time, saving face (and thereby increasing the chance they will keep their job). A political leader can claim to domestic constituencies that he or she “has never and will never compromise the nation’s sovereign rights.” If a disputing state loses its claim in court, the politician can blame the tribunal, explaining that he or she has no choice but to carry out its judgment, and the case is closed. The repercussions are at least arguably less severe than the price a politician must pay for unilateral concessions. However, opposition politicians can still attack the decision to take the claim to the tribunal in the first place, so the political benefits are by no means certain. The fact that states continue to submit their boundary disputes to adjudication, one or two or more each year, suggests that the domestic price for doing so is perceived as worth paying in each such case, thus slowly but surely building up the impressive cohort of resolved disputes.
But there are downsides to adjudication as well. The process of discovery, briefing, motions, jurisdictional proceedings, evidentiary hearings, etc. can take years. The club of elite lawyers who regularly appear before the ICJ on these matters is very small, and their hourly rates are very high. The total costs of extended litigation can be enormous, painfully so for a developing country. There are political costs as well for leaders who invest a nation’s limited budget to pay for London barristers or Wall Street litigators when there is not enough food to go around in the cities and villages at home.
Most importantly, these tribunals must address the disputes brought before them in narrow legal terms. They have jurisdiction to evaluate the adequacy of baselines, to determine an islet’s sovereignty (and to call it an “island” or a “rock”), to draw an equidistant line in the water, and to review evidence whether or not the boundary line should be adjusted as a matter of equity, and if so, to what extent. These are very important tasks, especially when states could not otherwise make these determinations on their own. But these are technical, legalistic judgments, without breathing room for something better, more robust and creative, than dividing the baby. Judicial processes do not permit states to frame the dispute in the real-life context of bilateral political and economic relations. Nor do they permit judges to fashion pragmatic, bi-national solutions that would more effectively and sustainably address these political and economic realities, and more optimally create value for each state and its citizens.
Trans-boundary resource management
In 1980, Former U.S. Attorney General Elliot Richardson, acting in his private capacity, was appointed by Norway and Iceland to lead a conciliation commission empowered to make recommendations concerning the possible resolution of a longstanding, bitter dispute concerning the sovereignty of Jan Mayen island, located midway between the two nations, and the impact of the island on each state’s control over valuable fisheries and petroleum deposits. In effect, Richardson was asked to mediate the dispute, thereby to facilitate the negotiation of a better agreement then the parties could achieve on their own accord. Among other recommendations, each of which were accepted by the claimants, Richardson proposed the establishment of a joint development zone to enable co-management of the area’s living and nonliving resources.
Richardson’s pragmatic logic and value-creating ideas proved to be compelling, and the dispute was successfully resolved. In a 1988 article in American Journal of International Law, Richardson explained:
The merit of a joint development zone, as opposed to a division of territory, lies in minimizing the potential for conflict, often by eliminating competition over the ownership of resources. Letting both countries have access to the resources of a disputed area on the basis of a mutually accepted regime sidesteps the thorny problems inherent in resolving the issue of delimitation, especially where the resources are unknown. It converts the otherwise intractable issue of ownership into a question of distribution and of quantity: how much can each state be assured of obtaining from the disputed area? Joint development promotes international cooperation in the management of common resources, encourages their rational use and guards against the possibility of conflict over future discoveries in the border region.
Richardson’ Jan Mayen experience suggests that states can fashion pragmatic, well-tailored solutions, economically and environmentally sustainable, when there is the political vision and will. Moreover, UNCLOS expressly provides for such solutions, and indeed requires states to do their best to create them, by means of good faith negotiations. UNCLOS Article 74, for example, states that EEZ delimitation “shall be effected by agreement on the basis of international law.” However, if a delimitation treaty cannot be negotiated, “the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature… without prejudice to the final delimitation.”
Consider the political implications of this provision. I have argued in this essay that UNCLOS did more to bolster the sovereign territorial power of nation-states than any other single legal instrument, or political treaty, in the long history of international affairs. Simultaneously, the invitation to create “provisional arrangements of a practical nature” in the event states are unable to successfully delimit maritime boundaries between them, suggests an equally historical milestone in international law: the breakdown of traditional conceptions of sovereignty in favour of bi-national solutions in which economic efficiencies are achieved, environmental protection is extended – and, in effect, boundaries become irrelevant.
Do states in fact negotiate such creative, pragmatic arrangements, thereby transforming bitterly contested areas into common zones managed for mutual economic benefit and ecological conservation?
The answer is yes.
There are examples in maritime areas throughout the world. Some have proven to be more successful, more lucrative, and better governed than others. Petro-states with domestic politics captured by special interests, infected by corruption, and hobbled by the “resource curse” are unlikely to make oil-sharing deals with neighboring states that are free of these toxic elements. The joint development agreement between Nigeria and Sao Tome & Principe is a case in point.
But there are many cases, in increasing numbers, where states are able to negotiate trans-boundary arrangements, creative experiments in shared sovereignty, that suggest admirable advances in cooperative resource management, joint scientific collaboration, efficient hydrocarbon development (especially when compared to cases where oil and gas deposits are “locked up” by unresolved overlapping claims), and regional ecosystem conservation. These cases are the wave of the future. They occur in the North Sea (e.g. Netherlands-Germany, the Persian Gulf (e.g. Abu Dhabi-Qatar; Kuwait-Saudi Arabia), the Red Sea (a Sudan-Saudi “common zone”), the Gulf of Thailand (a very productive joint development zones between Thailand and Malaysia, a second JDZ between Thailand and Vietnam, and a third shared by all three states). In Latin America alone, joint development and cooperative management zones have been established in lieu of boundary delimitation by agreement between Guatemala and Mexico (1961, 1990); Argentina and Uruguay (1973, 1988); Colombia and Dominican Republic (1978); Argentina and Chile (1984); Colombia and Jamaica (1993); and Barbados and Guyana (2003).As a result, cooperative scientific research, bi-national fisheries co-management, trans-boundary conservation projects, and joint hydrocarbon development take place throughout the region. Many more boundary delimitation agreements between Latin American states include provisions for cross-border cooperation in each of these arenas.
The Thailand-Malaysia Joint Authority is a new sovereign entity, governed jointly by appointed trustees from both countries, but assuming its own independent decision-making on behalf of the citizens of both states. Its slogan is catchy: “Two Brothers Drinking from the Same Well”
Learning to Play Chess on Water
In the old Grotian system, success in capturing offshore resources (beyond the 3-mile limit) involved achieving technological advantages against competitors, and sending your fleets as far as you could to find and exploit valuable fisheries or other desired living species or nonliving commodities from the common pool resources of the seas. Resources were allocated on a first-come, first-served basis, leading to a great many sub-optimal consequences: instability, recurring offshore resource conflicts and wars, bloody battles for the richest fisheries, and structural incentives to overexploit common pools of limited fishing stock.
Success in the Grotian system, the capture of the oceans’ bounty, depended on mastery of technology, commercial finance and naval power in an elaborate game of “finders-keepers, losers-weepers.” In contrast, success in the UNCLOS regime depends upon mastery of strategic negotiation according to elaborate legal rules.
In observing the strategic behavior of states in the UNCLOS regime, the analogy of chess, while imperfect, suggests useful lessons. Like chess, maritime boundary delimitation under UNCLOS is a complex game in which players make decisions from among a nearly infinite array of choices; yet at the same time they are always held accountable to the governing law, and they are always bound by its precise, strict rules. The success or failure of each player’s strategy and implementation, move by move, depends on the other player’s decisions and actions. Many alternative approaches exist at every point in the game, yet each move is prescribed, confined geographically by location, direction and space. Patience, study, thoughtfulness, strategic analysis and planning, pay dividends. Impulsiveness, anger, hostility, hubris, arrogance and pride lead to a fall.
The analogy is far from precise. Chess is played on a square board with its surface divided into 64 squares of equal size. In contrast, in negotiating an EEZ for example, the external contours of geographical territory are yet to be determined. Defining that territory, or creating pragmatic bi-national arrangements, is precisely the task at hand.
Chess is a zero-sum game. The player’s goal is to achieve a complete victory against his or her opponent. In the process, he or she seeks to maintain control over the board. Capturing the opponent’s most valuable players (Bishop, Knight, Rook, Queen), he or she diminishes the opponent’s capacity to protect his or her King. Move by move, the superior player proceeds toward triumph.
In contrast, the resolution of maritime boundary disputes rarely if ever results in “checkmate.” In nearly all cases, agreement is the goal, which requires give and take from both sides. Capturing valuable offshore resources, “unlocking them” for maximal benefit and sustainable development, requires collaborative problem solving. When overlapping claims block progress toward the delimitation of permanent maritime boundaries, effective diplomats and international lawyers can enable states to negotiate pareto efficient solutions to persistent resource disputes (i.e. enabling both parties to achieve maximum benefits without either being made worse off relative to the other).
Like chess, maritime boundary negotiations often end in stalemate, a suboptimal result for both parties. However, in chess the players can start over. They can begin a new game, with a clean board. This is not true of neighboring states. They cannot start fresh, , or at least not so easily. This leads to an important strategic element of UNCLOS negotiations: logjams prevent both states from benefiting from valuable resources in adjacent seas, and they block efforts to manage those resources and govern those maritime areas effectively. But maritime boundary negotiations can get unstuck. Unprecedented proposals for trans-boundary ecosystem management, or joint development of hydrocarbons in overlapping claims areas, can be realized for mutual gain.