BEIJING: China published an assessment report on the United Nations Convention on the Law of the Sea on Tuesday, highlighting its significance for multilateral diplomacy while cautioning against politicization and the abuse of the convention’s dispute resolution mechanisms.
The Assessment Report on the United Nations Convention on the Law of the Sea: Achievements, Positioning and Challenges, released by the China Institute for Marine Affairs, examines the convention’s role in shaping the postwar international legal order for the seas and oceans while identifying its inherent limitations and emerging challenges to its authority.
Zhang Haiwen, a professor at the institute, said UNCLOS was the product of nine years of negotiations between 1973 and 1982 involving more than 160 countries.
Unlike the 1958 Geneva Conventions, the Third United Nations Conference on the Law of the Sea adopted a “package deal” approach, requiring compromises among coastal states, flag states and landlocked countries.
“UNCLOS is of great significance for multilateral diplomacy,” Zhang said. “Many of its provisions are a product of compromise and the balancing of interests.”
The report cites the UNCLOS provision on maritime features as a prime example. It stipulates that rocks incapable of sustaining human habitation or economic life of their own are not entitled to an exclusive economic zone or continental shelf.
According to the report, scholars from Greece, Switzerland and Germany have pointed out that the provision lacks a clear definition and reflects the difficult consensus reached during negotiations. Preserving this internal balance is essential to maintaining the convention’s broad acceptance, it said.
Although UNCLOS is often described as the “constitution for the oceans”, Luo Gang, also a professor at the institute, said while the convention remains an important treaty, it does not surpass constitutional supremacy.
Unlike domestic legal systems, where constitutions typically occupy the highest position, international law has no universal hierarchy among its sources, with treaties, customary international law and general principles of law standing on equal footing, Luo said.
“Labeling it a ‘constitution for the oceans’ could create a ‘false sense of security’ and even become a ‘straitjacket for the regime’, constraining the law of the sea’s ability to evolve over time,” he said, citing scholars from multiple countries who argue that the metaphor ultimately hinders the development of the law of the sea.
Zhang noted that at the time UNCLOS was drafted, in the 1970s and 1980s, the emerging challenges related to artificial intelligence, climate change, sea level rise, marine debris and ocean acidification could not have been anticipated.
Beyond these inherent limitations, Zhang said the gravest threat comes from the deliberate misinterpretation of UNCLOS provisions and the abuse of its dispute resolution procedures, including attempts to create new rules through a teleological interpretation under the guise of interpreting and applying the convention, as well as overextending jurisdiction through the misuse of dispute settlement mechanisms.
“The convention’s own limitations can be remedied through subsequent practice, but deliberate abuse and a ‘pick-and-choose’ approach are what truly threaten the convention’s foundation,” Zhang said.
Zhang Dan, another professor at the institute, said deep-sea mining has emerged as a major test of the convention’s authority.
“Under international law, the seabed beyond national jurisdiction and its resources are the common heritage of mankind, with all rights vested in mankind as a whole and exercised on its behalf by the International Seabed Authority. All exploration and exploitation activities must be conducted within the framework established by the authority,” Zhang Dan said.
However, the United States has sought to advance mining activities through unilateral authorization outside the International Seabed Authority’s multilateral framework, Zhang Dan said. Such actions would erode the principle of the common heritage of humanity, weaken the authority’s standing and multilateral procedures, and undermine both the convention and the comprehensive legal regime it established, he added.
Luo said the 2016 South China Sea arbitration, brought by the Philippines against China under the UNCLOS, inflicted “structural damage that is difficult to self-heal” on the convention’s legal order.
China rejected the arbitration from the outset, arguing that the tribunal lacked jurisdiction because the case concerned territorial sovereignty and maritime delimitation.
“The Philippines repackaged its claims to sovereignty over land territory as maritime rights and unilaterally initiated arbitration using legal tricks, a move that ran counter to the object and purpose of the convention,” Luo said.
According to the report, the Arbitral Tribunal disrupted the convention’s carefully negotiated balance by attempting to replace the role of its drafters under the guise of interpretation and application. Rather than applying existing rules, it created new ones, undermining the multilateral foundation on which the convention rests.
“This has accelerated the politicization, instrumentalization and weaponization of the convention and its dispute settlement mechanisms,” Luo added. –The Daily Mail-China Daily news exchange item
