Search Results

This Chapter examines the permissible scope and extent of coastal State jurisdiction over unlicensed foreign fishing vessels in transit through the exclusive economic zone (EEZ) under the 1982 United Nations Convention on the Law of the Sea. While the primacy of the freedom of navigation has traditionally been the dominant narrative in the law of the sea, this Chapter argues that the coastal State’s sovereign rights over living resources are now accepted to provide a basis for regulations to be applied to all foreign fishing vessels navigating in the EEZ, even if they are only transiting through the zone without fishing. By examining the variety of regulations that are applied by States in practice, the Chapter establishes that, in relation to foreign fishing vessels and fishing support vessels, the contemporary freedom of navigation effectively equates to a right to undertake continuous and expeditious passage from one point beyond the EEZ to another point beyond the EEZ, except in circumstances involving force majeure or distress, or activities undertaken with the authorization of the coastal State. At the same time, the Chapter notes that the rights of coastal States involve correlative duties, and explores how the concepts of due regard, reasonableness, and the balance of interests apply to limit the extent of coastal State regulation in this area.

This chapter proposes additional policy options that the United States might pursue in the South China Sea. It recounts existing U.S. policy toward the South China Sea and finds that it is comprehensive, sensible, and well balanced. It focuses on creating stability by exhorting all parties to follow international law; it explicitly defines conflict solving; and it includes U.S. hard-power demonstrations as well as initiatives aimed at redressing some of the power imbalance between the Philippines, Vietnam, and China. It also incorporates deterrence by not ignoring America’s security alliance with the Philippines as well as providing for U.S. naval and air access. The chapter concludes by recommending several additional policy approaches while acknowledging the difficulty of getting Beijing to pay serious attention to U.S. objections to what Washington has called its “bullying” approach. Along the way it addresses what U.S. interests are involved in the South China Sea and makes the point that U.S. policy toward the South China Sea and China must be kept in perspective. The overall Sino-U.S. relationship is global in nature and involves many U.S. interests in which Beijing’s cooperation is necessary.

Seabed mining became more active as companies invested in technologies to harvest valuable minerals. Momentum toward commercial mining would test directly the idea of international control of ocean space. The industry’s prospects also revived attention to whether the United States might join the Convention, and the Obama administration pushed to secure ratification. That effort failed, mostly because of conservative concerns about the internationalization of the seabed. Washington’s continued refusal to join the Convention created a complicated situation in which the leading maritime power claimed to defend maritime rules but was outside the Convention. From inside the Convention, China and Russia both challenged maritime rules. Both countries rejected international rulings critical of their maritime behavior. Despite an international ruling, China continued its efforts to secure special rights in the South China Sea, and the United States responded by increasing its naval activities in the area and conducting more freedom of navigation operations.

In 2019, the Tribunal handed out a judgment on the merits in the Norstar case (Panama v. Italy). The decision adopted by a majority and opposed by seven judges, concerns inter alia the notion of freedom of navigation and its implications for bunkering on the high seas and developments on state responsibility concerning the causal link and the determination of quantum of damages. The Tribunal also handed out two provisional measures orders in disputes engaged by Ukraine against the Russian Federation, and by Switzerland against Nigeria, both under Article 290, paragraph 5, of UNCLOS. Both orders contain relevant developments on the law of provisional measures.

The M/V “Norstar” case deserves serious consideration for four reasons. First, the M/V “Norstar” judgment of 2016 is the first judgment on preliminary objections in the jurisprudence of the International Tribunal for the Law of the Sea (ITLOS). The judgment shed some light on procedural issues concerning preliminary objections. Second, ITLOS, in its judgment of 2019, addressed the interpretation and application of Article 87 of the UN Convention on the Law of the Sea. In light of the paramount importance of the freedom of navigation, the Tribunal’s view on this matter merits particular attention. Third, the M/V “Norstar” case provides an insight into basic concepts of international law, such as acquiescence, estoppel, good faith, and abuse of rights. Fourth, the M/V “Norstar” case furnishes a precedent regarding reparation in international law. Thus, this chapter examines the M/V “Norstar” judgments on preliminary objections and the merits, respectively.

This chapter traces the new dynamics introduced to the South China Sea disputes by the dual Chinese provocations of 2014: the deployment of a deep-water drilling rig over the continental shelf claimed by Vietnam and the launch of a massive island-building campaign in the Spratly Islands. These activities accelerated tensions that had been building for several years between China and the United States, and between China and its Southeast Asian neighbors. But despite belatedly recognizing the scale of the challenge, the Obama administration became trapped in the rhetoric of “freedom of navigation” and only managed to effectively rally international pressure against Beijing in early 2016. That progress was quickly undermined by the election of Rodrigo Duterte as president of the Philippines and his decision to set aside his country’s landmark arbitration victory over China.

This chapter examines the expansion of the Association of Southeast Asian Nations and its emergent role in managing the South China Sea disputes during the 1990s and 2000s. It explains how new provocations by Beijing, particularly the occupation of Mischief Reef and its subsequent militarization, fueled Southeast Asian anxieties and kickstarted the negotiations that eventually led to the disappointing 2002 Declaration on the Conduct of Parties in the South China Sea. The chapter tracks the repeated failures to implement that document and other unsuccessful attempts at joint development and cooperation. It also explores China’s shifting claims, including the elevation of the nine-dash line and “historic rights,” which led to heightened U.S. concerns about freedom of navigation.