Asia-Pacific Journal of Ocean Law and Policy 1 (2016) 11-36
This paper explores a number of diverse but closely inter-related topics relating to maritime jurisdiction. Assuming that two or more states which are party to such a dispute, certain inflexible principles apply. The point is made that the law of the sea is a part of international law, not an autonomous subject. Its cornerstone, the UN Convention of 1982, must therefore be read, interpreted and applied like any other international agreement. Parties to the Convention are bound by its provisions, and, in general, it is not up to them to insert words or meanings to suit themselves. Similarly, international law has rules on treaty interpretation, which should guide states in designing their marine policies. The paper considers reliance on history in the context of international law, and associated issues. It concludes with a number of propositions based on principle, general and specific. Throughout, maintaining law and order at sea as the optimum means of advancing the sustainable development of the oceans and all their resources, as well as the preservation and protection of the marine environment is a constant theme.
The following is an excerpt of the paper:
III. Reading and Interpreting Treaties
After thirty years of working on a variety of legal issues in almost all countries of the Asia – Pacific, one is aware of the variety of legal philosophies to be found there. It is not difficult to understand that different countries mean different things by the phrase ‘the rule of law’. One country may have certain expectations of its legal system (in other words its laws and the means whereby they are applied and enforced) not found in the territory of its neighbour. It comes as no surprise, or should come as no surprise, to discover that the ‘Western idea of law’ does not hold sway in the region. However, the same might be said of the differences in legal culture between ‘Western’ countries, and not only the difference between common law and civil law jurisdictions.
It is of course up to each State to make whatever arrangements it wishes for its domestic legal system. But international law is surely another matter altogether. If it is to be truly ‘international’, the law of nations must have a high degree of substantive global commonality. On the other hand, we know that there may be some variation in the interpretation and application of treaty norms. This is explained by inherent and inevitable differences in legal culture: one country’s understanding as what constitutes its ‘laws’, for example, is not necessarily the same as another’s. Some States implement treaty obligations by way of legislation, others through other means, such as programmes offered by mass organisations. The routes are different, the results may be the same.
One of the purpose of the extraordinary proliferation of multilateral treaties since the founding of the United Nations is the need for substantive normative commonality across the world. International law, written and unwritten, is no longer shaped exclusively by a handful of Western countries. Participation in the negotiations for an international convention is conditioned more by the willingness to play a role and the human and financial capacities of each State. The 1969 Vienna Convention on the Law of Treaties, lays down generally accepted rules for the conclusion and entry into force of international agreements of all kinds, as well as matters such as reservation, suspension, termination, and above all, interpretation.
This last point is not always appreciated by those who deal with international legal issues, such as the law of the sea, but who do not have the advantage of legal training. The ambit of treaty interpretation is very much narrower than some seen to think. To give one example highly relevant to the island disputes in East and Southeast Asian waters, there has been considerable debate as to whether a given feature is a rock or an island. However, a proper reading of Article 121 of the 1982 Convention suggests that there is no dichotomy here. The word ‘rock’ appears in the third paragraph of that Article, but to get that far, a feature must be subjected to and meet the four requirements specified in the first paragraph, which defines an island as a naturally formed area of land, surrounded by water, and above water at high tide. All four criteria must be met: a rock submerged at high tide, or which is not a naturally formed area of land, nor yet surrounded by water, is not an island, and therefore no part of Article 121 applies to it.
1. Treaty Interpretation
The fundamental rule of treaty law concerns the binding nature of the obligations assumed a party. The applicable provision of the Vienna Convention is as follows:
‘PACTA SUNT SERVANDA’
Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
In his 1959 survey of this fundamental principle, Professor Hans Wehberg  pointed not only to its considerable antiquity, but also the wide extent of acceptance. He found evidence of it in the history of the ancient Chaldeans, Egyptians and Chinese. The Qur’an specifically endorses it because agreements are made in the sight of Allah, and blessed accordingly. The authority of the New Testament is invoked, with the commentaries St. Augustine amongst others. The ancient Romans considered the concept central to the conduct of trade: in the western medieval world, keeping one’s word was later regarded as an essential aspect of knightly duty. Later still, the early writers on what we now call international law – Vitoria, Suarez, Bodin, and Grotius himself – subscribed to it without reservation. And so to the present day.
The notion of the sanctity of contract is therefore one not only of considerable long-standing, but multicultural recognition. By no stretch of the imagination can it be regarded as a western norm foisted on the rest of the world. Indeed, the already noted proliferation of treaties designed to create concrete rights and obligations between States, or to serve as a template for domestic legislation which would be substantially uniform from State to State, it is virtually impossible to see how such a legal order could prosper in the absence of concepts such as pacta sunt servanda. The complex nature of the international community, and its surely irreversible interdependence, a phenomenon noted as long ago as the early 1930s by Jenks, would be thrown into increasing chaos by divergence from it. States are not compelled to sign, ratify, or exceed to international agreements. Indeed, any form of coercion is a ground for setting the obligation aside. A country may feel that it has little option but to become party to a given agreement at a certain point in time; a number of States were urged to become parties to antiterrorism conventions by the United States and its allies in the days and weeks following the attacks on New York and Washington of 11 September 2001. This was not compulsion: States that decided to accept this or that agreement may simply have been bowing to the inevitability of a certain realpolitik dominant at that particular time.
Furthermore, the Vienna Convention requires words and phrases to be construed in their ordinary meaning, unless the context otherwise requires, or unless a given term or phrase is defined. The word ‘rock’ is not defined by the 1982 Convention, and therefore its ordinary dictionary meaning must be presumed to hold good. Paragraph (3) of Article 121 provides that rocks which cannot sustain human habitation or an economic life of their own cannot generate an excessive economic zone or continental shelf. This means that before we get to elaborate tests for the sustaining of human habitation, or evidence of an independent economic existence, the feature must first be capable of classification as a ‘rock’ in the ordinary everyday meaning of that word. The absence of a definition in the body of the 1982 Convention is neither fatal, nor an invitation for an interpretive free-for-all.
Articles 74 and 83 of the 1982 Convention provide that States should seek to reach agreement on the course of maritime boundaries (being free to agree on any boundary they wish provided there is no offence to the rights of third parties) and failing this, to apply the rules of international law in order to achieve an ‘equitable result’. I have heard individuals working for the legal departments of ministries of foreign affairs and justice point out that the 1982 Convention does not define what an ‘equitable result’ might entail. Surely no properly educated and experienced lawyer would have difficulty with such a concept – the phrase was not defined because there was no need to do so. It is also unfortunately true that it is not widely understood that the ‘rules of international law’ applicable to maritime boundary making are part and parcel of customary international law, that is, unwritten norms derive from State practice accepted as law, and is amplified and interpreted by international jurisprudence. Indeed, this is one of the few areas of international law were courts and tribunals have had as much or even more of an impact on normative development than coastal State practice. There are of course accepted rules which enable us to identify the existence of a norm of customary international law. This process may take some years, and requires a degree of consistency and uniformity not often encountered in international affairs, and the requirement of opinio juris sive necessitatis, that such practice is accepted as law and not a mere usage, is not always easy to determine. Those encountering customary international law applicable only to maritime boundary making, and remain unaware of its reach in other areas and topics of international law are labouring under something of a handicap.
The point arising here can be illustrated with reference to the so-called ‘territorialisation’ of the exclusive economic zone. This posits a growing acceptance of the nature of a State exercises between the seaward extent of the territorial sea and the 200 nm limit. An example which will be readily understood by those following developments in the South China Sea is that of hydrographic surveying. There is no doubt that the coastal State has the absolute right to control marine scientific research and hydrographic surveying in the territorial sea. The latter activity does not appear in the basket of rights allocated to the coastal State in Part V of the 1982 Convention. It is ludicrous to suggest that it was merely ‘left out’. The majority of participants at the Third Conference did not wish to include it.
This raises the question: can such a right on the part of the coastal State arise by operation of customary international law creation process? One answer would be that there could be no such objection provided that a normal so created does not violate the letter or spirit of any provision of the UNCLOS, because the State parties thereto could not claim the benefit of a rule which had such an effect, and those who hold that some or all of Part V is the territory of customary international law would have similar difficulties.
One counter to such a view that this author has heard on more than one occasion is to be effect that at the numerous meetings of the Third Conference, the international community decided what they did and did not want to see in an eventual convention. Those adhering to this position hold that the can be no going back on such determinations. It is as if the 1982 Convention is akin to holy writ, and therefore set in stone. This ignores the essentially dynamic nature of all law. No legal system, domestic or international, can follow the basic precept underpinning the plight of Daniel in the eponymous book of the Old Testament, confronted as he and his ruler were with the inflexibility of the laws of the Medes and Persians ‘which altereth not’. This approach certainly makes for legal certainty come what may, but in any complex society is a recipe for the extreme dysfunction. Law is not autonomous from society: it is designed to serve it. As society changes, the law must do so too, but cautiously and in a principled as opposed to opportunistic fashion.
In the context of marine hydrographic surveying, it is not long before we ask the crucial question: why do coastal States wish to control such activities within the exclusive economic zone? There has been no shortage of answers. Some States have suggested that this activity is it disguised way of carrying out at least some form of resource exploitation, clearly trenching on their rights under Parts V and VI. Alternatively, it is a means whereby vessels belonging to one State carry out what amounts to clandestine explorations of the defences (of whatever sort) of the coastal State.
Governments wishing to what here they regard as the letter of international law – hydrographic surveying is open to all ships within the exclusive economic zone – hold themselves out as the guardians of the concepts embedded in Part V. If the surrender on this, they say, what next? The Third Conference differentiated quite clearly between the basic concepts of the territorial sea and the exclusive economic zone/continental shelf. The ‘territorialisation’ tendency therefore violates not only the letter but also the spirit of the UNCLOS. If it is the will of the international community that some enhancement of coastal State rights within the EEZ said should take place, then would not the better course be to amend Part V, rather than have an untidy situation were some States claim they have the right to prevent foreign vessels from engaging in this activity while others do not, for whatever reason.
Treaty provisions can and do create rights reciprocal obligations which the international community expects the States concerned to respect. Furthermore, if the treaty omits to employ wording which a given State wishes it had been it is not open to that State to read its own meaning or interpretation into the agreement unless, conceivably, there is widespread agreement that it should. Additionally, phrases are indeed to be interpreted in their ordinary meaning unless the contrary is specified. All this being the case, then a principled paradigm for coming to grips with the provisions of an agreement emerges. Take the case of the rights of naval vessels in the territorial sea of other States. Do they or do they not enjoy the rights of innocent passage which, it is universally accepted, are available to merchant ships?
Some States wish to differentiate between the two, denying rights of innocent passage to foreign naval vessels, but freely admitting it for merchant shipping. The difficulty is, the 1982 Convention does not discriminate between the two. It does not create one regime of innocent passage for merchant ships and another for naval vessels. It seems to the present author that it is possible to argue that importing a differentiation runs counter to the clear intent of the Convention. If the framers had wished to make a distinction, they could have easily have done so, but they did not. By the same token, had the Third Conference wished to include hydrographic surveying (properly so called, and not disguised resource exploration, the so-called ‘tickling’ of coastal State defences, and so forth) in the bundle of rights allocated to coastal States within the EEZ said, it was done so – but it did not. Indeed, we have no shortage of evidence from participants at those momentous meetings that the exclusion in question was quite deliberate.
This is not at all to say that the provisions of the Convention are in any way akin to the laws of the Medes and Persians and altereth not. A better recipe for international dysfunction could hardly be imagined. The present author would argue that the evolution of a view of State rights beyond the limits of the territorial sea must take place in a principled fashion. This author would further argue that this means that any substantive change in such rights should result in amendments to the Convention if this is required. Simply disregarding or twisting the interpretation of a provision is deemed likely is not a principled response to the problem. At the end of the day, it is not an adequate substitution for amendment, or for the State concerned to remain outside the treaty regime.
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* Faculty of Law, The University of British Columbia, Canada. Email: firstname.lastname@example.org