Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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Stay in your Lane: South Korea and China Sea Disputes

Kia Roberts-Warren

It is no big surprise that China has a problem with respecting the territorial waters of others. Recently, the Permeant Court of Arbitration (“PCA”) ruled in favor of the Philippines; a proceeding that China did not participate in and has not abided by the PCA’s decision.  However, since the early 2000s South Korea has been dealing with China encroaching on its waters.[1] The water disputes are really between South Korea and Chinese fisherman who illegally fish in South Korea’s waters. Chinese fishermen have been illegally fishing in South Korea’s waters due to the depletion of seafood in their own waters and the increasing demand that the more prosperous Chinese population has to spend on seafood.[2] The South Korean Ministry of Defense reported that 520 Chinese fishing boats were caught for illegal fishing between January and May of this year and 120 instances in 2015.[3] The South Korea coastguard has reported from 2006-2011 about 2,600 seizures of Chinese fishing for illegal fishing.

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On October 9, 2015, two Chinese fishing boats slammed into a South Korean speedboat that was trying to remove the fishing boats from South Korean waters which caused the speedboat to sink. This resulted in several Chinese fishing boats to come armed with spear-like metal rods, but another coast guard vessel arrived and fired an assault rifle and a grenade launcher.[4] Fortunately, no one was injured or killed. However, about two weeks ago, the dispute turned deadly. A 17 crew Chinese fishing boat was found in South Korean waters by the South Korean coast guard. The coast guard stopped the boat on the grounds of poaching on South Korea’s waters. The crew members locked themselves in the steering cabin to resist questioning and searching of the vessel. In order to force the crew out of the cabin, the coast guards threw flashbang grenades into the cabin. The boat unexplainably caught fire. The coast guards were able to save 14 men. An investigation was launched to find out what caused the fire.[5]

This is not the first instance where illegal fishing has turned violent and deadly between the South Korean coast guard and Chinese fishermen. The escalation for violence is due to Chinese fishermen trying to escape arrest and fines for thousands of dollars. Chinese fisherman have been reported to be in possession of axes and steel pipes in order to prevent the South Korean coastguard officers from entering aboard. Also, Chinese ships chain each other together to resist seizure. Moreover, they have taken advantage of the tensions between South and North Korea. They sometimes sign contracts in North Korea to cross the boundary into South Korean waters.[6]

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The first instance of violence between both parties began in 2008, when a South Korean coastguard officer drowned after he was hit by a Chinese fisherman. In 2010, during a boat seizure a Chinese fisherman drowned and another disappeared when their ship sank after ramming into the South Korean patrol boat. In 2011, a South Korean coast guard was stabbed with glass by a Chinese fisherman trying to evade arrest.[7] After this incident, South Korea once again called on China to do something about its citizens. China responded that allegedly it was working on reducing the illegal fishing by instructing Chinese fisherman about the law and sometimes even physically restricting their boats from crossing into South Korean waters. However, as long as the fisherman can return to Chinese waters no penalties are imposed on them. In 2012, a Chinese fisherman was killed by a rubber bullet fired by a South Korean coast guard. And in 2014, during a vessel search by the South Korean coast guard, a Chinese captain died from a bullet wound from an altercation between the parties.[8]

SOUTH KOREA RETAILATES

The South Korean government expanded its fishing zone and hours on October 1st,  intended to help local fishermen increase their income as well as the struggles they have faced with Chinese fishing boats being there illegally.[9] This appears to be in response to the most recent incident and because South Korea has politely urged China, but to no avail, to deal with its fishermen illegally fishing. The new policy broadens the Yeonpyeong Island zone by 14 square kilometers to the west. Fisherman will be allowed to start fishing 30 minutes before sunrise and one hour after sunset during the months of April-May and October-November, all of which are the peak of crab season.[10] Furthermore, this past Tuesday, the South Korean made an announcement that their coast guard would start using force, this includes ramming into fishing vessels, and crews service weapons or individual weapons for those who try to violently resist.[11] South Korea has also began installing anti-trawl devices on the seafloor near the border which would foul up Chinese fishermen’s nets.

LEGAL REMEDIES?

China has raised concerns that South Korea’s actions of using law enforcement as a violation of the bilateral fishing treaty in force by both parties. China has also made official comments in the past about South Korea using fair and non-prejudicial treatment and procedure when it comes to detaining and questioning of its nationals. Under international law, some of the deaths of its Chinese nationals in past disputes may rise to damages only if South Korea has failed to prevent an unlawful death or injury cause by agents of the state.[12] However, South Korea doesn’t have the same possibility. This is because the fishermen are private individuals and the deaths happened in South Korea’s waters.

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China may also have another claim to the expansion of South Korea expanding its territorial waters if South Korea actually has mechanisms in place to make this policy effective. States are given 12 nautical miles as their territorial waters. Under the Law of Sea there is nothing that allows a State to expand its waters. However, if China wants South Korea to conform to the Law of the Sea convention it would first have to respect the decision of the PCA and cease its activities in the South China Sea.

There may also be some liability to South Korea if the anti-trawl devices are a violation to the ocean and maritime law in general. However, since anti-trawl devices are a new invention it may take the international community some time to decide upon it.

South Korea could bring North Korea before the ICJ because of its violation of its State obligations to South Korea. The North Korean government is allowing Chinese private citizens to use its territory to violate their obligations to South Korea. However, there are questions that remain: would North Korea appear? Would North Korea accept the decision of the ICJ?

The liability issues involving all three States also are entangled with politics as well so one of these countries taking legal actions is very unlikely as well because their relationships are fragile.

Kia Roberts-Warren is a 3L at UB Law. She is concentrating in international law. Kia graduated from Temple University receiving a BA in East Asian Studies during that time she spent a semester in Tokyo, Japan. Kia has an interest in international trade and human rights. She is also interested in fashion law and art law in the international context. Last year, she held the position of Career Development Director of the International Law Society and participated in the 2016 Philip C. Jessup Moot Court Competition. She recently attended UB’s Aberdeen Summer Abroad Program.  

[1] http://en.koreaportal.com/articles/23168/20161003/south-korea-expands-fishing-zone-to-prevent-illegal-chinese-fishing-in-the-area.htm

[2] http://foreignpolicy.com/2016/10/12/beijing-tells-seoul-to-stay-calm-and-carry-on-after-chinese-fishermen-sink-a-south-korean-coast-guard-boat/

[3] http://foreignpolicy.com/2016/10/12/beijing-tells-seoul-to-stay-calm-and-carry-on-after-chinese-fishermen-sink-a-south-korean-coast-guard-boat/

[4] http://thediplomat.com/2016/10/south-korea-sees-frictions-with-chinas-maritime-militia-whats-next/

[5] http://www.nytimes.com/2016/10/01/world/asia/south-korea-china-fishermen-deaths.html?_r=0

[6] http://foreignpolicy.com/2016/10/12/beijing-tells-seoul-to-stay-calm-and-carry-on-after-chinese-fishermen-sink-a-south-korean-coast-guard-boat/

[7] http://www.nytimes.com/2011/12/13/world/asia/chinese-fisherman-kills-south-korean-coast-guardsman.html

 

[8] http://www.nytimes.com/2016/10/01/world/asia/south-korea-china-fishermen-deaths.html?_r=0

[9] http://en.koreaportal.com/articles/23168/20161003/south-korea-expands-fishing-zone-to-prevent-illegal-chinese-fishing-in-the-area.htm

[10] http://en.koreaportal.com/articles/23168/20161003/south-korea-expands-fishing-zone-to-prevent-illegal-chinese-fishing-in-the-area.htm

[11] http://www.maritime-executive.com/article/south-korea-to-respond-to-illegal-fishing-with-force

[12] http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1168&context=auilr

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Legitimizing China’s Claim in the South China Sea

John Rizos

Conflict in the South China Sea is an alarming threat to international peace. The current situation between the US and China navies is reminiscent of a newspaper’s reaction to the Gulf of Tonkin Resolution during the Vietnam War. The US is planning to exercise its “freedom to navigation” through a third voyage in the South China Sea[1]. The voyage is said to be an assurance that China is not colonizing any disputed islands and not restricting trade or rights described in international law.

The Pentagon has been tracking Chinese military activity closely[2]. Officials have stated that China has increased spending on and usage of military modernization and has expanded its presence in the South China Sea[3]. US officials and military personnel have stated that such activity, especially in disputed areas, is destabilizing and poses a threat to trade routes in the region. This threat could damage America’s, and its allies’, trade route and competitiveness[4]. To emphasize the importance of the trade route in this region, $5Tr worth of shipping passes through the South China Sea each year[5]. Increased suspicious activity includes the construction of airfields on a man-made island on the Mischief Reef[6], attacks on Filipino fishermen[7], the deployment of anti-ship missiles in the area[8], and the attempted reclaims of Scarborough Shoal near the Philippines[9].

Although the Chinese government has condemned America’s intervention as indicative of a “Cold War” mentality and against modern trends for peace and cooperation, the US government has reassured that it will continue to send vessels to conduct freedom of navigation exercises[10]. It has made clear that it will not usurp to Chinese demands to stop such voyages. The US claims that China’s suspicious activity is against international law as preparations to colonize or annex disputed territories[11]. Maritime law allows for states to include seas up to 12 miles from their coast within their internal boundaries[12]. China claims that the US voyages will violate the 12-mile rule and will directly interfere with Chinese sovereignty[13]. US officials have stated that the navy will go wherever international law allows and any attempt of China to implement an Air Defense Identification Zone (ADIZ) would be ignored[14].

25-nine-dashed-line-in-the-south-china-sea

An ADIZ would allow for complete control of the sky over disputed territories, which would require aircrafts to alert the government of their entry/exit. Failure to alert may result in military action. China has implemented an ADIZ over the disputed Japanese Senkaku Islands, but has never exercised it against US aircrafts that constantly ignore it [15]. The US is treaty bound to protect Japan and the Philippines. It will begin operating from five different bases in the Philippines[16]. The bases are strategic in regards to the widespread claims, which include small islands in dispute amongst China, Taiwan, Brunei, Malaysia, Vietnam, and the Philippines. The base locations are significant since they are located in the eastern South China Sea and face all the sovereign states and disputed islands of the region.

According to China, the U.S. violations of state sovereignty are direct challenges to the state’s national interests [17]. China claims control in many of the disputed islands based on “ancient activity.”[18] The US has responded to disputed claims by stating that the voyages are not meant to establish support on any sovereignty’s claim but rather to conduct operations that no unlawful restrictions on international law rights and freedoms exist[19]. Further, the China’s naval spear,[20] Hainan Province, is geo-strategically important. It is located in the South China Sea and it faces the region eastwardly and southwardly. China asserts that it should have authority over these islands and would manage and supervise these territories from the Hainan Base. It would include nearby islands within its 12 mile boundary and close off routes as internal waters. The Hainan base is stocked with nuclear submarines, through which China can and will defend itself [21].

It is understandable for China to view the U.S. voyages as challenges to their assertion of sovereignty. Article 17 of the UN Convention on the Law of the Sea, however, allows foreign ships to navigate “innocently” through another sovereign’s territorial sea. Article 19 of the Convention establishes the criteria of “innocent passage.” Under the criteria, a foreign ship is prohibited from using weapons or any threat of force, collecting state information, spreading propaganda, launching military devices or vehicles, loading or unloading commodities, fishing, polluting, conducting research, interfering with communications, and exercising any other activity that does not have a direct bearing on passage. Because China is arguing that these islands constitute a part of its territory, the waters could be considered part of its territorial sea. Further, China clearly does not buy the fact that the U.S. would not be collecting state information, conducting research, or interfering with its communications.

It is important to note that Article 17 is only applicable to waters within the borders of a sovereign, which would include the 12 mile extension rule of territorial seas from a sovereign’s border. The South China Sea, however is not (currently) part of China’s waters, rather it is open for international navigation. Even if China attempted to create an archipelagos by creating artificial islands or annexing disputed territories in the South China Sea, innocent passage for international navigation would still be allowed under Article 53 of the Convention[24]. China should watch out regarding its reliance on UNCLOS to save them in this fight, however, since Article 60 explicitly states that, “artificial islands…may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.”[25]

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However, absent the artificial islands, China might have a case in claiming many of these territories based on a landmark international arbitration case. The 1928 “Las Palmas Case” in the Permanent Court of Arbitration held that in a disputed territory, an inchoate title could not prevail over continuous and peaceful display of authority by another state. Further, it is not necessary that display of sovereignty should go back to a very far distant period. In that case, the Netherlands’ display of authority prevailed in claiming Dutch possessions in the Philippines over the US’ claim on title of discovery[26]. Thus, it might be persuasive for China in showing that the mixture of its “ancient activity” and its continuous intervention in affairs over a territory might suffice as creating the disputed territories proper Chinese claims (in fact, it somewhat mirrors adverse possession on a global scale).

John Rizos is a 2L at the University of Baltimore School of Law. He has an interest in human rights and international criminal law. In addition to being a CICL Fellow, he is the Secretary for Phi Alpha Delta. He graduated with honors from Towson University with a BA in International Studies (2013). He has interned at the Press Office of the Greek Embassy in Washington, D.C. and the International Civil Advocacy Network (ICAN), a non-profit organization advocating for women’s rights in the Middle East.

[1] http://www.reuters.com/article/us-southchinasea-usa-idUSKCN0WZ018

[2] freebeacon.com/national-security/pentagon-concerned-chinese-anti-ship-missile-firing/

[3] http://economictimes.indiatimes.com/news/defence/chinas-activities-in-south-china-sea-may-pose-threat-to-trade-routes-us/articleshow/51612043.cms

[4] Id.

[5] http://sputniknews.com/asia/20160402/1037392985/us-challenges-china-tests-sovereignty-south-china-sea.html

[6] http://www.reuters.com/article/us-southchinasea-usa-idUSKCN0WZ018

[7] http://www.breitbart.com/national-security/2016/03/31/u-s-will-not-recognize-chinas-south-china-sea-borders/

[8] http://freebeacon.com/national-security/pentagon-concerned-chinese-anti-ship-missile-firing/

[9] http://www.morningnewsusa.com/china-war-south-china-sea-hainan-2368508.html

[10] http://www.breitbart.com/national-security/2016/03/31/u-s-will-not-recognize-chinas-south-china-sea-borders/

[11] Id.

[12] http://sputniknews.com/asia/20160402/1037392985/us-challenges-china-tests-sovereignty-south-china-sea.html

[13] Id.

[14] http://www.breitbart.com/national-security/2016/03/31/u-s-will-not-recognize-chinas-south-china-sea-borders/

[15] Id.

[16] Id.

[17] http://sputniknews.com/asia/20160402/1037392985/us-challenges-china-tests-sovereignty-south-china-sea.html

[18] http://www.breitbart.com/national-security/2016/03/31/u-s-will-not-recognize-chinas-south-china-sea-borders/

[19] http://www.reuters.com/article/us-southchinasea-usa-idUSKCN0WZ018

[20] http://www.morningnewsusa.com/china-war-south-china-sea-hainan-2368508.html

[21] Id.

[22] http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf at 30.

[23] Id. at 31.

[24] Id. at 42.

[25] Id. at 45.

[26] http://legal.un.org/riaa/cases/vol_II/829-871.pdf


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Christian Kim

As a rat scampers across the deck, the crashing of the waves violently rocks the floor. Lieutenant Mangidia, grabs onto the rusty side rails and hears one of his men heaving last night’s dinner into the ocean. He carefully steps over the cratered deck and pats the crewmember on his back. As Lieutenant Mangidia glances up, he spots the glistening beam of two brand new Chinese ships, coasting around the Sierra Madre like predatory sharks. The other nine members on the ship acknowledge their presence and collectively drone out a sigh of frustration.

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The Sierra Madre, from an outsider’s point of view, seems like nothing more than a rusting World War II remnant. To the Philippines, it is much more. In order to assert their claims on the Second Thomas Shoal, the Sierra Madre was deliberately grounded near that area in 1999.[1] The Sierra Madre houses 10 Philippine Marines, who stay on the ship at all times to protect a nearby island.[2] This island, known as the Pagasa Island, has one of the few aircraft landing strips in the South China Sea.[3] It is also home to several hundred citizens of the Philippines and it is the only island in the South China Sea with a permanent population.[4] Even though the crew members of the Sierra Madre face morale issues and the citizens of Pagasa Island are in constant fear of imminent war, they know that their role is vital. The Pagasa Island and the Sierra Madre are two important, yet fragile, frontlines between the Philippine’s claim on the Second Thomas Shoal against China.

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Anyone looking at this map can see that the territory China is claiming does not actually belong to China!

There are many island disputes in the Asian region; however, the South China Sea dispute has increased in tension dramatically in the early parts of 2016. This tension comes from both international and regional disputes. Depending on who you ask, the South China Sea can be referred to as the East Sea (Vietnam) or the West Philippine Sea (Philippines).[5] Countries such as China, Philippines, Vietnam, Malaysia, Indonesia, Taiwan, and Brunei have laid claims to some or the entire part of South China Sea.[6] These countries base their claims on historical maps, landmarks, decaying ships (like the Sierra Madre), proximity, UN Conventions, and more.[7] In 1974, China went to war with Vietnam for control over the Paracel Islands, which led to the deaths of over 70 soldiers.[8] Since then, there hasn’t been any major battles fought over the area. Although the South China Sea is home to hundreds of small islands and coral reefs, it has no indigenous people.[9] So, what could possibly be the cause of all this commotion?

One of the biggest advantages of having a legitimate claim to the South China Sea is that the location is strategically important. Not only does the South China Sea link the Pacific and the Indian Ocean, it is also an important shipping channel.[10] More than half of the world’s annual merchant fleet pass through these waters.[11] Countries such as South Korea, Japan, Taiwan and China receive their energy supplies through ships that cross into the South China Sea.[12] The South China Sea is also important for militaristic purposes in that manner as well.

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The next big advantage is obvious! The South China Sea is rich in energy reserves, although the amount of energy reserves varies on the expert you ask. One estimate from the US Energy Information Administration is that there is approximately 11 billion barrels of oil and 190 trillion cubic feet of natural gas.[13] Even though the amount of barrel of oils might seem significant, it could only power China’s energy needs at an estimated range of three years.[14] The bigger resource in dispute is the natural gas deposit since it could possibly power China for ten times the previous suggested amount.[15]

The final big advantage of the South China Sea is that 10% of the world’s fishing is conducted in this body of water.[16] Millions of fishermen are employed in this region, but regional disputes have also led to conflict.[17] One of the biggest examples was back in 2012 when the Philippine Navy found a Chinese vessel fishing in the area.[18] The Philippines were trying to stop the illegal fishing when two Chinese surveillance ships blocked the Philippine Navy’s access.[19]

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The South China Sea is just one of the few disputes that China is currently dealing with. Other issues such as their claims on Taiwan, Hong Kong, Tibet, Senkaku or Diaoyutai Islands are on China’s agenda. With the international limelight on the South China Sea dispute, a sign of weakness on their claims to the South China Sea might become a slippery slope to the aforementioned claims. The international community has been voicing their concerns over the South China Sea and most of it has been aimed directly at China. At the end of a recent G-7 meeting in Hiroshima, the leaders expressed their concerns and had a “strong opposition to any intimidating, coercive or provocative unilateral actions that could alter the status quo and increase tensions.”[20] Even though China was not explicitly mentioned in this statement, China reacted to it as if addressed to them by stating that the disputed claims in the region were “exaggerated.”[21]

Christian Kim is a 2L at the University of Baltimore School of Law and graduated from the University of Maryland with a Bachelor of Arts in Criminal Justice. He currently serves as the President of the Asian Pacific American Law Student Association as well as the 2L Rep for the Student Bar Association. His interests are East Asian politics, international conflicts, and human rights.  Before Law School, Christian has worked for the Korean Ministry of Education as a TaLK (Teach and Learn in Korea) Scholar and Coordinator for two years. He is currently a legal intern at the Hermina Law Group and a law clerk for the Law Office ofHayley Tamburello.

[1] http://www.philstar.com/headlines/2014/04/01/1307550/old-us-ship-home-filipinos-china-standoff

[2] Id.

[3] http://www.rappler.com/nation/93563-feature-pagasa-residents-philippines

[4] Id.

[5] http://english.vietnamnet.vn/fms/special-reports/106862/the-china-philippines-dispute-in-the-east-sea.html

[6] http://www.globalsecurity.org/military/world/war/south-china-sea.htm

[7] http://csis.org/publication/southeast-asia-scott-circle-tumultuous-2016-south-china-sea

[8] http://www.scmp.com/news/asia/article/1409007/vietnam-marks-40th-anniversary-chinas-invasion-paracel-islands

[9] http://aviation-defence-universe.com/south-china-sea-is-it-a-problem-with-no-solution/

[10] http://atimes.com/2016/01/china-and-the-south-china-sea-dispute-the-5-trillion-lie/

[11] Id.

[12] Id.

[13] http://www.abc.net.au/news/2015-08-11/south-china-sea-tensions-deter-oil-exploration/6688988

[14] http://www.ciis.org.cn/english/2015-05/11/content_7894391.htm

[15] Id.

[16] http://www.pbs.org/newshour/updates/5-things-didnt-know-south-china-sea-conflict/

[17] http://www.theguardian.com/world/2012/apr/11/philippines-china-stand-off-south-china-sea

[18] Id.

[19] http://thediplomat.com/2015/11/international-law-is-the-real-threat-to-chinas-south-china-sea-claims/

[20] http://www.bloomberg.com/news/articles/2016-04-11/g-7-raises-east-south-china-sea-disputes-in-hiroshima-statement

[21] http://www.ibtimes.com/g7-foreign-ministers-seek-calm-south-china-sea-2351631


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Displacing Santa: Russia Claims the North Pole

Matthew Matechik

Russia Asserts Exclusive Economic Rights to Massive Section of Arctic Ocean

Russia owns the North Pole. At least… Russia claims it owns the resources of the North Pole. When it comes to expanding its territorial influence, Russia has been busy lately. Invade a neighbor here,[i] illegally annex some territory there,[ii] and violate airspace elsewhere. [iii] Russian President Vladimir Putin’s latest foray is a resource claim to a vast swath of the Arctic Ocean, including North Pole.

Russia North Pole

To be fair, Russia is at the moment making this grab via lawful means unlike, for example, its illegal annexation of the Crimean peninsula. Russia has made its claim under the 1982 U.N. Convention on the Law of the Sea (UNCLOS).[iv]  UNCLOS defines coastal states’ claims to adjacent waters. Under the treaty, a coastal state has exclusive economic rights, meaning sole access to and control of all the resources, in waters extending 200 nautical miles from its coast. UNCLOS also allows a coastal state to claim exclusive economic rights over any part of the ocean over the continental shelf protruding from the coastal state. Continental shelf rights can exist beyond the EEZ up to 350 nautical miles from the coast if the coastal state can establish that the foot of the continental slope exists that far out[v]. The EEZ and continental shelf areas are not part of the state’s territory, although they are immensely valuable to the state because the state alone has access to all the resources, such as oil and fish, and can prohibit other states from accessing those resources.

Russia claimed in August that the foot of its continental slope exists 350 nautical miles, and possibly even further, from its coast. Therefore, Russia is entitled to exclusive economic rights that far from its coast.[vi] The claim far exceeds current understandings of arctic exclusive economic rights, which limits Russia to the outer limit of the EEZ. If Russia’s claim is valid then Russia has exclusive economic rights to over 460,000 square miles of the Arctic Sea, including the North Pole, all of which is currently classified as international waters. The area is estimated to contain up to 10 billion tons of oil and gas deposits, as well as large fisheries, and vast reserves of diamonds and valuable metals such as gold, tin and platinum.[vii] In addition, major potential shipping routes are emerging as global warming melts the polar ice caps. It’s not surprising that Russia wants to control this area itself given its significant economic importance, strategic advantage, and increasing accessibility.

Russia North Pole 2

Russia has been building toward this claim since at least 2002 when it filed a similar UNCLOS claim which was rejected for lack of scientific evidence.[viii] Since that time Russia has been amassing what its Foreign Ministry claims is “a broad range of scientific data collected over many years of Arctic exploration” to support its argument that the continental foot exists 350 miles from shore.[ix] Russia was not shy about asserting its North Pole presence while it was gathering all that evidence. In 2007, Russia dispatched a well-known Russian explorer in a submarine to the seabed directly below the North Pole where he took a soil sample and planted a Russian flag made of titanium.[x] More recently, last March Russia asserted its military strength in the area with a massive exercise involving over 40,000 servicemen, 41 warships, and 14 submarines.

The U.N. Commission on the Limits of the Continental Shelf will deliberate Russia’s claim at its next session.[xi] The Commission must consider if Russia’s newly presented evidence is enough to grant Russia the exclusive economic rights it desires. Russia will likely have to have a far more convincing case than it did in 2002.

Russia North Pole 3

Not to be outdone in the race for a treasure of resources and shipping routes, the United States, Canada, Norway, and Denmark all have their own claims to exclusive economic rights in the Arctic, many of which extend beyond the EEZ. (It should be noted that the United States has not ratified UNCLOS.) As the ice melts, all the bordering states are looking to take advantage. The competing interests make the cold North Pole a potential hot spot for violent conflict.[xii] The potential for Arctic conflict is certainly amplified if the U.N. denies Russia’s claim as expected. Or, for that matter, if the claim is approved, then the United States, Canada, Norway, and Denmark will be forced to do something to hang on to their power in the Arctic. Russia is certainly capable of using force, or at least forceful deterrent, to protect what it views as its exclusive Arctic resources. Russia has proven in Crimea that it is willing to violate international law to expand its territory and power even in the face of punitive sanctions. Amidst increasing tensions in the Ukraine, Syria, the Balkans, and elsewhere, Cold War rivalries might finally heat up to hostilities in the Arctic.

Matthew Matechik is an Evening J.D. student at the University of Baltimore School of Law (Class of 2016). He currently works full-time as a Counterterrorism Analyst. He has a Bachelors of Arts (Magna Cum Laude, 2008) from Florida State University.

 

[i] http://knowmore.washingtonpost.com/2014/03/05/a-map-of-the-last-time-russia-invaded-one-of-its-neighbors/

[ii] http://www.cnn.com/2014/03/18/world/europe/ukraine-crisis/

[iii] http://www.nytimes.com/2015/10/07/world/europe/russian-violations-of-airspace-seen-as-unwelcome-test-by-the-west.html

[iv]  http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm

[v] http://www.un.org/Depts/los/clcs_new/continental_shelf_description.htm

[vi] http://www.cnbc.com/2015/08/06/move-over-santa-putin-claims-the-north-pole.html

[vii] http://www.livescience.com/4584-russia-claims-north-pole-global-race-oil.html

[viii] http://www.smithsonianmag.com/smart-news/russia-might-own-north-pole-180956208/?no-ist

[ix] http://www.nytimes.com/2015/08/05/world/europe/kremlin-stakes-claim-to-arctic-expanse-and-its-resources.html?rref=collection%2Fsectioncollection%2Fscience&action=click&contentCollection=science&region=stream&module=stream_unit&contentPlacement=3&pgtype=sectionfront&_r=0

[x] http://www.nytimes.com/2007/08/03/world/europe/03arctic.html?_r=0

[xi] http://www.un.org/depts/los/clcs_new/commission_submissions.htm

[xii] http://blogs.reuters.com/great-debate/2015/10/04/russia-and-america-prep-forces-for-arctic-war/

 

 


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No Common Heritage: Why the Internet Cannot be Regulated Like the Sea

Matthew Matechik

In the rapidly unfolding digital age, the strongest player on the international stage is not necessarily the state with the biggest weapons or the most soldiers. Instead it is the cyber actor, which may or may not be a state, capable of most effectively leveraging the Internet to achieve objectives. Like the seafaring captains of old, these actors navigate the labyrinth of the Internet to discover, to trade, to pillage, and to conquer. Digital packets are their vessels. The Internet is their sea.

Internet Pirate

Like the sea, the internet encircles the globe. Like the sea, the Internet is used for benign activity, such as commerce and leisure, but also for destructive activity, such as theft and combat. The sea has sailors and pirates; the internet has cyber professionals and hackers. The comparison seems appropriate and begs the questions: Can international law regulate the Internet like it regulates the sea?

The similarities between the Internet as a medium and the sea as a medium suggest that international principles governing the use of the sea could effectively be applied to the use of the Internet. Upon inspection, however, this theory quickly erodes for numerous reasons. Perhaps the most significant obstacle is the lack of a common heritage to the Internet. Common heritage is the critical component that has allowed the law of the sea to develop.

Customs governing the use of the sea probably began to emerge when humans first encountered other humans at sea. These customs grew out of a recognition that the sea was an incredibly vast shared space that no one nation could hold in the way that land territory could be held. The sea was recognized as the common heritage of mankind. Seafaring parties intersected with both allies and enemies in this shared space. Customs and laws continued to develop over millennia to regulate these encounters. As humanity’s access to the sea increased, international norms increased, including codifying many of these customs in the UN Convention on the Law of the Sea (UNCLOS). These laws were based on the idea that all humans enjoyed freedom of the sea because it was common heritage.  The laws fostered shared use of the sea while deterring nefarious actions on the sea.

As a recent phenomenon, the Internet has no such common heritage, although it has become a common resource. The Internet traces its origins back to a research project completed by the United States Defense Advanced Research Projects Agency (DARPA) during the 1960s.[1] Its usage grew exponentially until it became the truly globe-spanning super network of today, reaching an estimated 3 billion people.[2] Because the United States was the primary driver of early Internet adoption, its infrastructure and usage patterns have developed in such a way that most of the world’s internet traffic passes through the United States.[3] This position offers the United States unique advantages and opportunities that the United States is unlikely to relinquish.

Global Internet Map

Other nations have more recently undertaken measures to ensure their own Internet posture also offers unique advantages and aligns with their interests. For example, China has erected “The Great Firewall” around Chinese Internet users, allowing China to censor which traffic is accessible by Chinese users.[4] China is leveraging its Internet power to further its interests at the expense of internet freedom and access. Meanwhile in the European Union, some European leaders are advocating for new Internet regulations that could bolster European tech companies’ positions against their American counterparts.[5] The fortifying of digital space will not enable the international community to adopt any sort of “freedom of the Internet” measures akin to the freedom of the seas.  Quite the opposite in fact, the trend seems to be increasing restrictions on communal use.

Even if the international community did characterize the Internet as a resource to be shared by all, regulation appears to be technically impossible, at least at present, because Internet traffic cannot be finitely quantified and observed in the same way that seafaring vessels can. Sea regulations are enforceable in large part because nations are able to observe a meaningfully quantifiable number of vessels and react by employing the appropriate legal measure. On the sea, the regulator can, for example, react to nefarious activity by boarding a vessel and searching it.

Over the Internet, the regulator would likewise have to conduct inspections in some manner but there are far too many data packets to deal with. By the end of 2016, an estimated 1,000,000,000,000 gigabytes of data will traverse the Internet annually.[6] That number is too large to fathom its significance. Finding nefarious activity among that much data and reacting appropriately while still fostering Internet freedom is technically impossible given the current state of technology. There are simply too many packets traversing the internet.

The lack of common heritage to the Internet and technological limitations on widespread enforcement make the application of the law of the sea’s principles to the Internet impossible for now. The international community must approach the Internet with a fresh perspective that considers its modern and unique characteristics. The Council of Europe’s Convention on Cybercrime, which entered into force in 2004, is currently the leading international convention in this field. The Convention identifies numerous cybercrimes that signatories must address in their domestic criminal laws, requires that certain law enforcement procedures be put into place, and demands that signatories cooperate to investigate and prosecute cybercrimes.[7] The Convention has been ratified by forty-seven states so far and signed by an additional seven.

The Convention shows some real promise because it addresses uniquely cyber issues and has seen at least some adoption. However, it still lacks global utility because it does little to address state-on-state cyber acts and lacks signatures from significant cyber powers, notably China and Russia. The lack of widespread adoption suggests cyber stakeholders with competing interests have a long way to go before they are able to agree on international regulation that works as effectively as sea regulations.

Matthew Matechik is an Evening J.D. student at the University of Baltimore School of Law (Class of 2016). He currently works full-time for the U.S. Federal Government as a Counterterrorism Analyst. He has a Bachelors of Arts (Magna Cum Laude, 2008) from Florida State University. All views in this blog post are Matthew’s own views and do not represent that of the U.S. Government. 

[1] http://www.internetsociety.org/internet/what-internet/history-internet/brief-history-internet

[2] http://www.washingtonpost.com/sf/business/2015/05/30/net-of-insecurity-part-1/

[3] http://faculty.georgetown.edu/irvinem/CCTP748/Internet-Mediology.html

[4] http://abcnews.go.com/Technology/story?id=4707107&page=1

[5] http://www.reuters.com/article/2015/06/23/us-eu-digital-letter-idUSKBN0P32AX20150623

[6] http://www.cisco.com/c/en/us/solutions/collateral/service-provider/visual-networking-index-vni/VNI_Hyperconnectivity_WP.html

[7] http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm