By “sea-grabbing” I refer to what China is trying to do over wide swathes of sea. Earlier we had controversy over airspace. This remains unresolved. Now China has started another controversy, this time over sea space. Claiming police powers in the disputed South China Sea, China is requiring foreign fishermen to ask Beijing’s permission to operate within the vast strategic area. The affected areas include waters claimed by the Philippines, Vietnam and others.
Historically, the sea has performed two very important functions: first, as a medium of communication between states; and second, as a vast reservoir of wealth resources living and nonliving. For that reason laws have been developed to govern the use of the seas.
In the 17th century, there arose the claim that a state could dominate the high seas, but this was countered by Grotius who developed the doctrine on freedom of the high seas. Little by little the body of laws grew, and now the prevailing law is the 1982 United Nations Convention on the Law of the Sea (Unclos). China is a signatory to this convention. We would therefore expect China to honor it.
Briefly, coastal states have a claim of control, in varying degrees, over portions of the seas. Each state is entitled to territorial waters, a contiguous sea, and the exclusive economic zone.
The territorial sea is a belt of sea outwards from the baseline. The baseline is an imaginary line drawn around the shallow water edge of a land area. We recently amended our baseline law in order to conform to the requirements of the 1982 Unclos.
The width of this territorial belt of water has been the subject of much disagreement. The original rule was the “cannon shot” rule, that is, the width of water was measured in terms of the range of shore-based artillery. Later this became the three-mile rule. The three-mile rule has now been discarded in favor of the 12-mile rule now found in Article 3 of the Unclos.
The authority of the coastal state over its territorial sea and the airspace above it, as well as the seabed under, is the same as its sovereignty over its land territory. However, the sea is subject to the right of innocent passage by other states. The rule on innocent passage applies to ships and aircraft. Submarines, moreover, must surface. Innocent passage is passage that is not prejudicial to the peace, good order or security of the coastal state.
The contiguous zone is an area of water not exceeding 24 nautical miles from the baseline. It thus extends 12 nautical miles from the edge of the territorial sea. The coastal state exercises authority over that area to the extent necessary to prevent infringement of its customs, fiscal, immigration or sanitation authority over its territorial waters or territory; and to punish such infringement.
The doctrine on the exclusive economic zone is a recent development. Prior to the acceptance of this doctrine, all waters beyond the contiguous zone were considered “high seas,” over which no state had control. The doctrine developed owing to the desire of coastal states for
better conservation and management of coastal fisheries.
The exclusive economic zone is an area
extending not more than 200 nautical miles beyond the baseline. The coastal state has rights over the economic resources of the sea, seabed and subsoil—but the rights do not affect the right of navigation and overflight of other states. This is a compromise between those who wanted a 200-mile territorial sea and those who wanted to reduce the powers of coastal states.
The provisions on the exclusive economic zone are both a grant of rights to and an imposition of obligations on coastal states relative to the exploitation, management and preservation of the resources found within the zone.
The two primary obligations: First, coastal states must ensure, through proper conservation and management measures, that the living resources of the exclusive economic zone are not subjected to overexploitation. This includes the duty to maintain and restore populations of harvested fisheries at levels which produce a “maximum sustainable yield.” Second, they must promote the objective of “optimum utilization” of the living resources. They therefore should determine the allowable catch of living resources. If the coastal state does not have the capacity to harvest the allowable catch, it must grant access to other states. The details on this matter are found in Articles 55 to 75 of the
The United States, although it does not take sides in the dispute over the South China Sea, insists on the freedom of navigation in the area. Quiet obviously, when the measurements prescribed by Unclos are applied, the territorial waters of neighboring countries can overlap. China has resolved possible overlap by asserting its power unilaterally, requiring fishing vessels to ask Beijing’s permission. Manila, for its part, is seeking clarification of what the new Chinese rules are demanding.