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Law of the Sea

Ghana v. Côte d’Ivoire: Unilateral Oil Activities in Disputed Marine Areas

by Xuechan Ma

[Xuechan Ma, PhD candidate at Grotius Center for International Legal Studies of Leiden University, the Netherlands, researching on the topic of international cooperation in disputed marine areas; L.L.M. & L.L.B. at Peking University, China. Email: maxuechan [at] gmail [dot] com.]

The Special Chamber of the ITLOS delivered its judgement of the Ghana v. Côte d’Ivoire case on 23 September 2017, which pertained to unilateral oil activities in disputed marine areas. Both parties agreed that the dispute concerned the establishment of a single maritime boundary to delimit the territorial sea, exclusive economic zone (EEZ) and continental shelf, including the continental shelf beyond 200 nautical miles, between them in the Atlantic Ocean. While both parties concurred that there was no formally concluded delimitation agreement between them, they disagreed as to whether there had been a maritime boundary established by a tacit agreement. Ghana argued that both parties had recognized and respected a maritime boundary in the area concerned on the basis of a tacit agreement which had been developed or confirmed as a result of the oil activities of both parties over years. By contrast, Côte d’Ivoire claimed that such a tacit agreement did not exist and that the oil practice of Ghana in the disputed marine areas should be deemed a violation of international law, including Article 83(3) of United Nations Convention on the Law of the Sea (UNCLOS).

Notably, the oil activities discussed in this case are unilateral due to the absence of any provisional arrangement between the parties. This case indeed contains two interlinked legal issues in relation to unilateral oil activities in disputed marine areas. The first issue pertains to the legal effect of unilateral oil activities. Put differently, can such oil activities improve the legal position of the parties to the dispute? The second issue is about the legality of unilateral oil activities. In other words, are such unilateral activities in contravention of certain international obligations undertaken by a State to a marine dispute? These two issues are interlinked in the sense that if these activities are deemed illegal, it is impossible to conclude that such activities can contribute to the improvement of the legal position of the party who undertakes them. The reason is quite simple: otherwise it would entail positive implications for the illegal conduct of States. Nevertheless, the converse is not necessarily true. Even if unilateral oil activities cannot have any legal effect on improving a State’s legal position, they are not necessarily deemed illegal.

The Special Chamber first addressed the issue about the legal effect of unilateral oil activities. In its view, evidence for the purpose of establishing a tacit agreement regarding a maritime boundary should be compelling. In the present case, the Special Chamber considered that the mutual, consistent and long-standing oil practice and the adjoining oil concession limits alleged by Ghana might reflect the existence of a maritime boundary or might be explained by other reasons. Thus, it was not convinced of the existence of a tacit agreement in relation to a maritime boundary in the area concerned. Moreover, the Special Chamber explicitly concluded that the all-purpose nature of the maritime boundary meant that evidence relating solely to the specific purpose of oil activities in the seabed and subsoil could not be determinative of the extent of the boundary. In addition, it also concluded that in principle the location of oil resources could not be considered a relevant circumstance in maritime delimitation and that the only exception to this principle is that the delimitation was “likely to entail catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned”. Nevertheless, Côte d’Ivoire had not advanced any arguments which might have led the Special Chamber to be convinced that the situation in this case constituted the aforementioned exception.

As mentioned above, the lack of legal effect on improving a State’s legal position does not necessarily indicate that unilateral oil activities should be deemed illegal. Hence, the Special Chamber had to deal with the issue of legality separately. Indeed, this issue was entertained by the Special Chamber during the proceedings of provisional measures. Côte d’Ivoire requested Ghana be ordered to suspend all ongoing oil exploration and exploitation operations and refrain from granting any new operations in the disputed area. The Special Chamber admitted that both the ongoing and future exploration and exploitation activities would result in significant and permanent modification of the physical character of the area in dispute and thus create a risk of irreversible prejudice to the rights of Côte d’Ivoire and also cause harm to the marine environment. However, it also noted that suspending Ghana’s ongoing activities in respect of which drilling had already taken place would not only entail the risk of considerable financial loss to Ghana and its concessionaries, but also pose a serious danger to the marine environment, particularly caused by the deterioration of equipment. In this light, it considered that an order suspending all ongoing activities would cause prejudice to the rights claimed by Ghana and create an undue burden on it. Hence, the Special Chamber issued an order of provisional measures requesting that Ghana refrain from conducting any new drilling in the disputed area and authorizing Ghana to continue the ongoing drilling in the disputed area as long as it carried out strict and continuous monitoring of all activities undertaken by it or with its authorization “with a view to ensuring the prevention of serious harm to the marine environment”.

This finding seems to contradict previous jurisprudence. In the Guyana v. Suriname case, Suriname claimed that by allowing its concession holder to undertake exploratory drilling in the disputed marine areas Guyana violated its obligation not to jeopardize or hamper the reaching of the final agreement as provided by Article 83(3) of UNCLOS. The tribunal took the position that exploitation of oil and gas reserves as well as exploratory drilling belonged to activities of the kind that lead to a permanent physical change to the marine environment and thus should be prohibited in disputed waters. On this basis, the tribunal concluded that “Guyana’s authorisation of its concession holder to undertake exploratory drilling in disputed waters constituted a violation of its obligation to make every effort not to jeopardise or hamper the reaching of a final agreement on delimitation”.

In the present case, Ghana argued that this case should be distinguished from the Guyana v. Suriname case in the sense that the latter involved wholly new and unilateral activities that had been undertaken following the emergence of the dispute, namely the critical date, while in this case, Ghana’s activities were “simply the continuation of decades of previous activity of a kind which would have been conducted by Côte d’Ivoire”. By this argument, Ghana implied that its ongoing activities were a normal continuation of acts conducted prior to the critical date and thus could not be deemed illegal. However, the Special Chamber had already negated the relevance of the notion of critical date in the present case on the ground that the activities of both parties in the maritime area concerned had not changed over years. In fact, even if the notion of critical date were held to be relevant in this case, Ghana’s argument would still be untenable because it mixed two issues, namely the legal effect and the legality of unilateral acts. The notion of critical date is only relevant to the legal effect of unilateral oil activities. Put differently, unilateral oil activities as a normal continuation of acts prior to the critical date could not improve the legal position of the party which relied on them. However, this cannot lead to a conclusion on whether such unilateral activities should be deemed legal or illegal.

Nevertheless, there is indeed some difference between the Guyana v. Suriname case and the present case. The oil activities involved in the former case only included exploratory drilling and did not include any actual exploitation operation. Consequently, the suspension of such activities would not entail the risk of considerable financial loss to Guyana and its concessionaries and pose a serious danger to the marine environment particularly caused by the deterioration of equipment. By contrast, in the present case, the oil practice included oil concessions, seismic surveys and exploration and drilling activities. The extent and intensity of the unilateral oil activities undertaken by Ghana were much greater than that of Guyana. Consequently, suspending Ghana’s activities would cause prejudice to the rights claimed by Ghana and create an undue burden on it. Moreover, it is generally accepted that an international court or tribunal can only prescribe provisional measures when there is “a real and imminent risk that irreparable prejudice may be caused to the rights of the parties in dispute”. Therefore, a provisional measure could not itself cause prejudice to the rights of both parties in dispute. In this light, it is understandable why the Special Chamber had refused to order Ghana to stop all ongoing drillings in the disputed area during the proceedings of provisional measures.

Furthermore, it is worth noting that the standard for an activity to be qualified as a provisional measure differs from that for an activity to be considered not hampering or jeopardising the reaching of a final agreement. The tribunal has confirmed in the Guyana v. Suriname case that the former standard has a higher threshold than the latter. In other words, activities qualified as a provisional measure can be considered not a violation of the obligation not to hamper or jeopardize the reaching of a final agreement under Article 83(3) of UNCLOS. But the converse is not necessarily true. In the present case, the fact that the Special Chamber did not order the suspension of ongoing oil exploration and exploitation operations as a provisional measure could not indicate that such ongoing activities did not violate the obligation under Article 83(3) of UNCLOS.

It is a pity that the Special Chamber missed the opportunity to further address the compliance of Ghana’s unilateral oil activities in the disputed marine area with Article 83(3) of UNCLOS. Côte d’Ivoire had requested the Special Chamber to declare that unilateral activities undertaken by Ghana after the issuance of the provisional measures “in the Ivorian maritime area” constituted a violation of the obligation not to jeopardize or hamper the reaching of the final agreement as provided by Article 83(3) of UNCLOS. The Special Chamber opted not to explicitly address the real issue as to whether the unilateral oil activities undertaken by Ghana in the disputed area constituted a violation of the obligation set forth by Article 83(3) of UNCLOS. It simply concluded that the activities of Ghana did not meet the qualification of the relevant submission of Côte d’Ivoire since such activities took place not “in the Ivorian maritime area” but in an area attributed to Ghana. This finding implies that unilateral oil activities would not be deemed illegal as long as relevant areas of oil operations are found to belong to the party who has undertaken the activities.

To conclude, the judgement in this case contributes to clarifying the legal effect of unilateral oil activities in disputed marine areas. It is explicitly declared that unilateral oil activities have no legal effect on improving the legal position of a State to a marine dispute. However, by circumventing the issue about the legality of unilateral oil activities in disputed marine areas, this case may have negative impact on other unsettled marine disputes around the world. Following this jurisprudence, an international court or tribunal could not order a provisional measure to suspend ongoing unilateral oil activities in marine area in dispute as long as the extent and intensity of such oil activities are so great that suspending such activities would cause irreparable prejudice to the right of the party who undertakes such activities. In this sense, it can be imagined that States to a marine dispute would be motivated to undertake as many unilateral oil exploration and exploitation activities as possible since these unilateral activities would not be deemed illegal provided that relevant marine areas of oil operations are found to belong to them in the end.

New Essay: Specially-Affected States and the Formation of Custom

by Kevin Jon Heller

I have just posted on SSRN a draft of a (very) long article entitled “Specially-Affected States and the Formation of Custom.” It represents my first real foray into both “classic” public international law and postcolonial critique. Here is the abstract:

Although the US has consistently relied on the ICJ’s doctrine of specially-affected states to claim that it and other powerful states in the Global North play a privileged role in the formation of customary international law, the doctrine itself has been almost completely ignored both by legal scholars and by the ICJ itself. This article attempts to fill that lacuna. In particular, by focusing on debates in a variety of areas of international law – with particular emphasis on the jus ad bellum and jus in bello – it addresses two questions: (1) what makes a state “specially affected”? and (2) what exactly is the importance of a state qualifying as “specially affected” for custom formation? The article concludes not only that the US approach to the doctrine of specially-affected states is fatally flawed, but also that a more theoretically coherent understanding of the doctrine would give states in the Global South power over the development of custom that the US and other Global North states would never find acceptable.

You can download the article here. As always, comments most welcome!

Dear Secretary Tillerson (and the World Media): Qatar is NOT Under a “Blockade”

by Julian Ku

Longtime readers of this blog may have noticed that one of my pet peeves is the incorrect usage of international legal terms in public and diplomatic discourse.  Hence, Israel did NOT commit “piracy” during the 2010 Gaza flotilla raid despite lots of governments claiming otherwise.  Cuba is not under a “blockade” despite tons of Cuban government propaganda otherwise. So you can imagine my dismay when U.S. Secretary of State Rex Tillerson issued this statement yesterday calling the situation in Qatar a “blockade.”

We call on the Kingdom of Saudi Arabia, the United Arab Emirates, Bahrain, and Egypt to ease the blockade against Qatar. There are humanitarian consequences to this blockade.

(Emphasis added). Global media is using the term  “blockade” as well.

I don’t doubt that Qatar is under severe economic pressure.  It is reported that all of Qatar’s neighbors in the Gulf have cut off air, land and sea trade with Qatar.  Saudi Arabia has blocked the only land border into Qatar, which is a peninsula.  But as powerful as these economic pressures are, they do NOT constitute a blockade as defined by international law.  As this definition from the Max Planck Institute Encyclopedia of Public Law explains:

A blockade is a belligerent operation to prevent vessels and/or aircraft of all nations, enemy and neutral from entering or exiting specified ports, airports, or coastal areas belonging to, occupied by, or under the control of an enemy nation.

There is no evidence, as far as I know, that Saudi Arabia and other Gulf nations are preventing “vessels and/or aircraft of all nations” from entering Qatar ports.  Instead, the Gulf nations are simply preventing anyone in their territories from traveling to or trading with Qatar.  A blockade would mean that the Gulf nations actually used military force to interdict all shipping and flights into Qatar by any nation and through international waters.  Israel has essentially established such a blockade of the Gaza Strip, but that has not happened to Qatar (yet). Until that happens, there is no blockade.

Why is it so shocking that Secretary Tillerson did not recognize this legal distinction? Because the U.S. frequently engages in economic sanctions of the sort currently being imposed against Qatar.  The U.S. has either strict economic sanctions or full-scale embargoes on countries like North Korea, Cuba, and Iran.  Cuba in particular has tried to label the US embargo on it as a “blockade” even though the U.S. does not use military force to prevent other countries from trading with Cuba. The U.S. should not and cannot water down the legal definition of “blockade” without imperiling an crucial tool in its diplomatic toolbox.   Moreover, since “blockades” are traditionally seen as an “act of war,” they would probably constitute a “use of force” under Article 2(4) of the U.N. Charter.  The U.S., more than any country, should want to maintain the legal right to impose embargoes.

So please, Secretary Tillerson, consult your many talented and knowledge State Department lawyers.  Qatar is NOT being blockaded, and the U.S. (of all countries) should avoid saying so.

What to Look for in any U.S. Withdrawal from the Paris Agreement

by Duncan Hollis

President Trump has indicated that he will announce a decision on future U.S. participation in the Paris Agreement later today at 3 pm. Reports suggest that he has already made up his mind to withdraw. That decision is likely to receive extensive attention (not to mention criticism) on the merits. And certainly that attention is warranted. But I believe an equally important issue will be how the Trump Administration pursues its withdrawal.

Contrary to popular opinion (and this erroneous NY Times Q&A), the Paris Agreement was never intended to be non-binding. It is, on its face, pretty clearly a treaty in the international law sense of that term (see the standard definition in Art. 2(1)(a) of the 1969 Vienna Convention on the Law Treaties (VCLT)). True, one key provision of the Paris Agreement (Article 4) contains language that does not evidence an intention to create legal rights or obligations (and the negotiation of which almost blew up the original deal). But the rest of the agreement was clearly intended to create a treaty and the language used manifests such intentions. For confirmation, one only has to look to the U.N. Treaty Office (which is home to some of the world’s leading experts on treaties) and note how it has always regarded the Paris Agreement as a treaty.

The United States formally joined the Paris Agreement on November 4, 2016, following its acceptance of that treaty on September 3, 2016. It is true that the United States did so without seeking the U.S. Senate’s advice and consent under Art. 2, cl. 2, section 2, nor did Congress specifically authorize U.S. participation as it did for treaties like NAFTA or the WTO Agreement. But U.S. treaty law and practice has long accommodated other means for the United States to enter into treaties in the international law sense, including through the President’s sole executive powers or where prior Congressional authorization supports U.S. participation. In the case of Paris, the precise grounds for U.S. acceptance are contested (see Dan Bodansky and Peter Spiro’s impressive take on these issues here).

As far as international law is concerned, however, there is little question that the United States is currently bound by its acceptance. The law of treaties is most famous for the foundational principle pacta sunt servanda, or as VCLT Art. 26 puts it, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” And for those less familiar with the VCLT, it is important to note that although the United States never joined the “treaty on treaties” every Administration since Richard Nixon’s has regarded almost all of its provisions as customary international law (the exceptions being provisions on signature and consultations in the event of breach). Thus, to withdraw or otherwise end its obligations under the Paris Agreement, the United States will have to look to the law of treaties. Indeed, VCLT Article 42 provides that a treaty’s validity or a State’s consent can only be impeached through the VCLT’s application and, more pertinently, “[t]he termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention.”

So, how can the United States get out from the Paris Agreement? I predict the Trump Administration will invoke one of four possible avenues for its exit later today.

Syria War Crimes Accountability Act — Now Revised!

by Kevin Jon Heller

Last month, I blogged about the Syria War Crimes Accountability Act of 2017, a bipartisan Senate bill “[t]o require a report on, and to authorize technical assistance for, accountability for war crimes, crimes against humanity, and genocide in Syria.” I praised the bill, but pointed out that Section 7(a) was drafted in such a way that it permitted the US to provide technical assistance to entities investigating international crimes committed by pro-Assad forces and “violent extremist groups,” but did not permit the US to support entities investigating international crimes committed by rebels.

I am delighted to report that Sen. Ben Cardin (D-MD), the Ranking Member of the U.S. Senate Foreign Relations Committee (SFRC), successfully introduced an amendment to the bill at last Thursday’s SFRC’s business meeting that corrects the asymmetry in Section 7(a). The new version reads as follows (emphasis in original):

The Secretary of State (acting through appropriate officials and offices, which may include the Office of Global Criminal Justice), after consultation with the Department of Justice and other appropriate Federal agencies, is authorized to provide appropriate assistance to support entities that, with respect to war crimes, crimes against humanity, and genocide perpetrated by the regime of President Bashar al-Assad, all forces fighting on its behalf, and all non-state armed groups fighting in the country, including violent extremist groups in Syria beginning in March 2011…

This is a welcome change, because — as I pointed out in my original post — there is no reason to treat crimes committed by rebels any differently than crimes committed by Assad’s forces or by ISIS.

Kudos to Sen. Cardin! Let’s hope the revised version of the bill passes the full Senate soon.

ICC Communication About Australia’s Mistreatment of Refugees

by Kevin Jon Heller

As has been widely reported, 17 international-law scholars — including yours truly — recently submitted a 105-page communication to the Office of the Prosecutor alleging that Australia’s treatment of refugees involves the commission of multiple crimes against humanity, including imprisonment, torture, deportation, and persecution. The communication is a tremendous piece of work, prepared in large part by the Global Legal Action Network (GLAN) and Stanford Law School’s International Human Rights and Conflict Resolution Clinic.

Peter Dutton, Australia’s Minister for Immigration and Border Protection, has described our efforts as a “wacky cause.” Nothing could be further from the truth. The communication is serious, sober, analytic, and comprehensive. I think it establishes far more than a “reasonable basis” to believe that Australian government officials and officials of the corporations that run the prison camps on Manus Island and Nauru have committed crimes against humanity. Here is (most of) the executive summary…

Event: Australia, Refugees, and International Criminal Law (February 13)

by Kevin Jon Heller

I want to call readers’ attention to what should be — despite my participation — a fantastic event at City Law School the week after next. Here is the info:

City, University of London: The Refugee Crisis and International Criminal Law: Are Australian Agents and Corporate Actors Committing Crimes Against Humanity?

City Law School invites you to a panel discussion of international criminal law aspects of the refugee crisis, with a focus on the Australian detention facilities. The discussion will follow the announcement and launch of a new major initiative by the Stanford International Human Rights Clinic and the Global Legal Action Network (GLAN).

Refugees and asylum seekers are currently under attack in many developed countries, including in European states, the US, and Australia. International criminal law has developed around the need for international institutions to intervene on behalf of the most vulnerable populations, when states are unwilling or unable to do so. Can international criminal prosecution help counter the current encroachment upon refugee rights? Currently, the most flagrant examples of such encroachment are Australian practices, which have also served as a model for migration restrictionists around the world. Our focus will be on the treatment of refugees in Nauru and Manus Island by Australian officials and agents, including corporate actors. At issue, however, are not only legal questions. As important are contemporary political conditions, in which the international criminal court is under sustained critique for a seeming bias against African leaders; and in which Western governments and populist movements are proposing new policies that violate refugee rights. Does the concept of Crimes against Humanity accurately capture the conditions of detention and practices of mass deportations? And, if there are international crimes committed, are these grave enough for the International Criminal Court to investigate? Can and should International Criminal Law shift its focus from instances of spectacular or radical evil to the normalised and ‘banal’ violence waged by Western states as a consequence of the structures of global inequality?

Speakers: Ms Diala Shamas, Supervising Attorney and Lecturer, Stanford Law School International Human Rights and Conflict Resolution Clinic; Dr Cathryn Costello, Andrew W. Mellon Associate Professor in International Human Rights and Refugee Law, fellow of St Antony’s College, University of Oxford; Professor Kevin Jon Heller, Professor of Criminal Law, SOAS, University of London; Dr Ioannis KalpouzosLecturer in Law, City Law School, City, University of London; Legal Action Committee, Global Legal Action Network; Dr Itamar Mann, Senior Lecturer in Law, University of Haifa; Legal Action Committee, Global Legal Action Network; Ms Anna Shea, Researcher and Legal Advisor, Refugee and Migrant Rights, Amnesty International.

The event takes place on Monday 13 February 2017 at 18:00 at City, University of London, College Building, St John Street, EC1V 4PB – Room AG21. The event will be followed by a wine reception. Attendance is free. You may sign up here.

Hope to see some OJ readers there!

Symposium on Asia and International Law

by Chris Borgen

The forthcoming issue of the European Journal of International Law will feature an article by Professor Simon Chesterman, the Dean of the National University of Singapore’s Faculty of Law, entitled Asia’s Ambivalence About International Law and Institutions: Past, Present and Futures. This week, Opinio Juris and EJILTalk will hold a joint symposium on the two blogs on Professor Chesterman’s article.

The article’s abstract explains:

Asian states are the least likely of any regional grouping to be party to most international obligations or to have representation reflecting their number and size in international organizations. That is despite the fact that Asian states have arguably benefited most from the security and economic dividends provided by international law and institutions. This article explores the reasons for Asia’s under-participation and under-representation. The first part traces the history of Asia’s engagement with international law. The second part assesses Asia’s current engagement with international law and institutions, examining whether its under-participation and under-representation is in fact significant and how it might be explained. The third part considers possible future developments based on three different scenarios, referred to here as status quo, divergence and convergence. Convergence is held to be the most likely future, indicating adaptation on the part of Asian states as well as on the part of the international legal order.

The symposium will begin on Monday with an opening post by Professor Chesterman, followed by posts on Opinio Juris by Professor Tony Anghie of the National University of Singapore and on EJILTalk by Professor Eyal Benvenisti of Cambridge University.  On Tuesday, Opinio Juris will have commentary by Professor B.S. Chimni of Jawaharlal Nehru University and EJILTalk will have a piece by Professor Robert McCorquodale of the University of Nottingham and the Director of the British Institute of International and Comparative Law.   Wednesday will have observations and reactions on Opinio Juris by Judge Xue Hanqin  of the International Court of Justice and on EJILTalk by Judge Paik Jin-Hyun of the International Tribunal for the Law of the Sea. Finally, there will be a closing post pn both blogs by Professor Chesterman on Thursday.

We hope you will join us on both blogs for the discussion.

Ukraine’s UNCLOS Arbitration Claim Against Russia May Depend Upon Philippines-China Precedent

by Julian Ku

After months (or even years) of threats, Ukraine finally filed an arbitration claim against Russia under Annex VII of the UN Convention of the Law of the Sea.  According to this statement from the Ukrainian Ministry of Foreign of Affairs, the claim will focus on Russia’s actions in the maritime zones bordering Crimea.

Since the Russian Federation’s illegal acts of aggression in Crimea, Russia has usurped and interfered with Ukraine’s maritime rights in these zones.  Ukraine seeks to end the Russian Federation’s violations of UNCLOS and vindicate Ukraine’s rights in the Black Sea, Sea of Azov, and Kerch Strait, including Ukraine’s rights to the natural resources offshore Crimea which belong to the Ukrainian people.

I discussed Ukraine’s claim back in February here, as well as Russia’s likely response.  I can’t find a copy of the Ukrainian statement of claim online, but the MFA description sounds like it will be pretty similar to the approach pioneered by the Philippines in its claim against China.  Ukraine will seek to avoid Russia’s Article 298 declaration excluding jurisdiction relating to sea boundary delimitations by not asking the tribunal to rule on sea boundaries. Ukraine will not seek to have the arbitral tribunal declare that the annexation of Crimea is illegal. Rather, the focus will be on specific actions Russia has taken in the Crimea maritime zones, which Ukraine is going to assume is part of Ukraine.

It will be interesting to see if Russia responds at all to this arbitration, or whether they follow China’s example and simply boycott the arbitration process completely.  I am not sure Russia’s jurisdictional defense is as strong as China’s (which lost anyway), so I am betting Russia simply declares it will not even show up, while loudly declaiming the legality of their actions.  Stay tuned.

 

I’d Like to Be Under the South China Sea in a Crewed Deep Sea Platform in the Shade

by Chris Borgen

Earlier this week, Julian and I each posted about the international legal issues of the Moon and asteroid mining plans of U.S. companies. Those projects may have sounded like something out of Space 1999 but now we hear of one of China’s near-term priorities that sounds like SeaLab 2020.

Bloomberg reports:

China is speeding up efforts to design and build a manned deep-sea platform to help it hunt for minerals in the South China Sea, one that may also serve a military purpose in the disputed waters.

Such an oceanic “space station” would be located as much as 3,000 meters (9,800 feet) below the surface…

This would be by far the deepest long-term undersea facility (as opposed to a deep sea vessel, such as a submarine). By way of context, the NASA Extreme Environment Mission Operations Facility (NEEMO), the “world’s only undersea research station” is anchored at a depth of 62 feet.

China’s leadership explains that, in part, this base will help with a new frontier of resource development, using rhetoric that is at times similar to the arguments some make concerning private space ventures on the Moon and asteroids:

President Xi Jinping said at a national science conference in May: “The deep sea contains treasures that remain undiscovered and undeveloped, and in order to obtain these treasures we have to control key technologies in getting into the deep sea, discovering the deep sea, and developing the deep sea.”

But, beyond looking for deep sea resources, the concern is that the base is part of China’s gambit for sovereignty over much of the South China Sea.  However, while establishing this undersea platform may become part of China’s political argument for its sovereignty claims, it does nothing to support the legal argument. Under the UN Convention on the Law of the Sea (UNCLOS), this undersea platform would probably be treated as an “artificial island,” like an oil rig.  At the time that UNCLOS was being drafted, large undersea bases were more the province of James Bond movies than treaty negotiations, so the closest analogy in the text is what would likely be applied in this case.  (For a discussion on sea platforms, “seasteading,” and sovereignty claims by non-state actors, see this post.)

Although it is not clear where the location of this undersea lab would be, UNCLOS has similar provisions concerning artificial islands located in an Exclusive Economic Zone (article 60) or on the continental shelf (article 80, which refers back to the article 60 text, with any applicable adjustments).

The text from article 60 states:

Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.

So, in short, building this base would not change China’s territorial rights.

However, the concern is that, while it may not help the legal argument, another goal of the base may be to bolster the political argument with some military muscle. The Bloomberg article quotes the following:

“To develop the ocean is an important strategy for the Chinese government, but the deep sea space station is not designed against any country or region,” said Xu Liping, a senior researcher for Southeast Asian affairs at the Chinese Academy of Social Sciences, a government-run institute.

“China’s project will be mainly for civil use, but we can’t rule out it will carry some military functions,” Xu said. “Many countries in the world have been researching these kind of deep water projects and China is just one of those nations.”

Whether China actually builds this base–and if so, where–remains to be seen. If it does so, it will also be interesting to assess whether the base turns out to be most useful as a scientific research facility, a political gambit, or a military base.

President Obama Calls out the Senate on Treaties

by Duncan Hollis

Earlier today, President Obama took time out during his commencement address at the Air Force Academy to make a pointed plea for the value of treaty-making.  Here’s the relevant excerpt from his remarks:

By the way, one of the most effective ways to lead and work with others is through treaties that advance our interests.  Lately, there’s been a mindset in Congress that just about any international treaty is somehow a violation of American sovereignty, and so the Senate almost never approves treaties anymore.  They voted down a treaty to protect disabled Americans, including our veterans, while Senator and World War II veteran Bob Dole was sitting right there in the Senate chambers in a wheelchair.

We don’t always realize it, but treaties help make a lot of things in our lives possible that we take for granted — from international phone calls to mail.  Those are good things.  Those are not a threat to our sovereignty.  I think we can all agree on that.

But also from NATO to treaties controlling nuclear weapons, treaties help keep us safe.  So if we’re truly concerned about China’s actions in the South China Sea, for example, the Senate should help strengthen our case by approving the Law of the Sea Convention — as our military leaders have urged.  And by the way, these treaties are not a new thing.  The power to make treaties is written into our Constitution.  Our Founding Fathers ratified lots of treaties.  So it’s time for the Senate to do its job and help us advance American leadership, rather than undermine it.  (Applause.)

Three paragraphs is not much to fully articulate U.S. interests in treaty-making (let alone give a balanced overview of the arguments over UNCLOS).  Thus, I think the more noteworthy thing here is the fact that the remarks are coming from the President himself.  It’s one thing to call out the Senate on a specific treaty like the Disabilities Convention, but this slap is more systemic. President Obama has not had a good record when it comes to making treaties through the Article II Advice and Consent process.  With the exception of the new START treaty, the Senate has refused to act on most treaties, including certain types of treaties (e.g., tax treaties, fish treaties) that in prior Administrations were entirely uncontroversial.  Thus, we might see this speech as a late shift in strategy, where the White House is moving off treaty-specific pro’s and con’s to reconstruct this issue in constitutional terms.  I’m not too sanguine that the move will be any more successful at getting votes on pending treaties, but the Senate’s response (if any) will bear watching.

What do others think?  Is there anything I’m missing here?

[UPDATE: An astute reader points out that I was incorrect to cite fish treaties as an example of Senate hostility to treaty-making.  In fact, all four treaties that have received Senate advice and consent since 2012 involved fish; in other words, fish treaties are the only treaties that have gotten through in the last four years.  Tax treaties and treaties on scientific cooperation and conservation, which in the past were, like fish treaties, non-controversial, are better examples of the ongoing hostility to treaty-making]

Weaponized Archaeology and Sovereignty Disputes

by Chris Borgen

Underwater archaeologist Peter B. Campbell has a very interesting opinion piece in the New York Times about how archaeological claims are being used as political weapons in sovereignty disputes. He explains:

For decades, global powers have been engaged in a race to exploit lucrative marine resources, from oil to fisheries to control of strategic waterways. But they have faced a challenge: How can a country claim new territory despite the restrictions of the United Nations Convention on the Law of the Sea? It turns out that “historical ties” to resource-rich regions can conveniently help to contravene international law.

At issue is how archaeological research is being injected into political rhetoric on issues such as claims of sovereignty in the Arctic, in the South China Sea, and over Crimea.  Campbell writes:

China’s deputy minister of culture, Li Xiaojie, put it bluntly: “Marine archaeology is an exercise that demonstrates national sovereignty.”

Russia has followed suit. In 2011, when he was prime minister, Vladimir V. Putin made headlines by retrieving two ancient ceramic jars from a shipwreck at Phanagoria, the ancient Greek city that is 10 miles from Crimea. The media cast it as a publicity stunt, but alarm bells sounded within the archaeological community. Mr. Putin’s political allies had invested $3.5 billion in research at Phanagoria, a submerged harbor with Roman-era shipwrecks. And while Phanagoria was the site of Greek colonies, Russian nationalists have adopted its ancient kings as proto-Russians.

For now, these archaeological findings are being used more as ostensible support of political rhetoric rather than as evidence, in the technical legal sense, of title.  Claims of sovereignty are most clearly based on specific treaties, such as boundary delimitation treaties, or broader treaties that set-forth rules for resolving disputes, such as the UN Convention on the Law of the Sea (UNCLOS).

This does not deny that historical state practice can be a component in resolving a dispute. But there are standards for assessing such historical examples. As the Permanent Court of International Justice wrote in the Eastern Greenland case:

a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority.

Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is also claimed by some other Power.

The ICJ quoted this language at paragraph 134 in its Pulau Ligitan and Pulau Sipadan judgment. In the case of maritime sovereignty claims, the goal would be to turn old shipwrecks into evidence of a continued display of authority, also known as effectivite. Anneliese Guess wrote that Canada’s then-Minister of the Environment said in 2008 that, in regards to the search for shipwrecks in the Northwest Passage:

 We certainly think by establishing a long-standing presence in the Arctic that can enhance issues of sovereignty … Look at the strait (the Northwest Passage) not far from where this ship is….We think every bit of weight we can put behind our case for sovereignty is important. Adding history to that equation can only enhance that case.

While historic state practice can be important, the ICJ’s discussion in Pulau Ligitan is a good example of how difficult it can to make such a claim of effectivite. In that case, the ICJ wrote that the facts must “leave no doubt as to their specific reference to the islands in dispute as such.” (para. 136) In Pulau Ligitan, the ICJ was unmoved by many of the examples of naval activities as proof of claims of sovereignty. How much harder still, with archaeological shipwrecks from a century ago, let alone from Roman times.

Modern international law, with its focus on treaty obligations and effective dates (that draw a bright line making some historical facts less important than others) is not likely to accord much weight to  shipwrecks such as those mentioned by Campbell. (And probably no weight to some of them.) Nonetheless, politicians spin and deploy these archaeological finds in their wars of words. But in the end, as Campbell reminds us,

…archaeology rarely fits simple narratives. In fact, archaeology often demonstrates our shared human past.