De-escalation and disputed waters

Given the Declaration on Friendly Relations discussed in Chapter 1, to what extent do the obligations to resolve disputes peacefully make a difference to the actions by warships discussed previously? The Court in the Nicaragua Case stated:

The Court has however also to recall a further principle of international law, one which is complementary to the principles of a prohibitive nature examined above, and respect for which is essential in the world of today: the principle that the parties to any dispute, particularly any dispute the continuance of which is likely to endanger the maintenance of international peace and security, should seek a solution by peacefill means. Enshrined in Article 33 of the United Nations Charter, which also indicates a number of peacefill means which are available, this principle has also the status of customary law.

On its face, mere passage should not of itself be provocative, unless it is into an area of claimed internal waters. There may be contexts in which this is not the case, but it is important to address what the obligation to resolve disputes peacefully actually entails. Usefully, there are two cases concerning disputes at sea which address the issue.

Guyana v Suriname Arbitration

The award of the arbitral tribunal in the Guyana v Suriname Arbitration considered the distinction between law enforcement and the unlawful threat or use of force. It also considered the obligations of states when dealing with a delimitation dispute, that is to say, the issue of states seeking to enforce their sovereignty or sovereign rights in disputed waters. This case primarily concerned a maritime boundary delimitation but also addressed an incident in which two patrol boats of the Suriname Navy issuing warnings to an oil rig, which was not sovereign immune, to leave the disputed area or ‘the consequences would be yours’.[1] The Tribunal, distinguishing this case from the Saiga Case, did not accept that this was law enforcement as it implied the threat of the use of force; as opposed to the process of stopping, boarding, seizure and arrest in law enforcement in which necessary and reasonable force may be used incidental to those purposes. This was contrary to the obligation of Suriname to resolve disputes by peaceful means in accordance with obligations such as those under art 2(4) of the UN Charter and the Declaration on Friendly Relations.

At all times Suriname was under an obligation to make every effort to reach a provisional arrangement. However, this obligation became particularly pressing and relevant when Suriname became aware of Guyana’s concession holder’s plarmed exploratory drilling in disputed waters. Instead of attempting to engage Guyana in a spirit of understanding and cooperation as required by the Convention, Suriname opted for a harder stance. Even though Guyana attempted to engage it in a dialogue which may have led to a satisfactory solution for both Parties, Suriname resorted to self-help in threatening the CGX [CGX Resomces Inc.] rig, in violation of the Convention. In order to satisfy its obligation to make every effort to reach provisional arrangements, Suriname would have actively had to attempt to bring Guyana to the negotiating table, or, at a minimum, have accepted Grtyana’s last minute 2 June 2000 invitation and negotiated in good faith. It notably could have insisted on the immediate cessation of CGX’s exploratory drilling as a condition to participating hi further talks. However, as Suriname did not opt for either of these courses of action, it failed, hi the build-up to the CGX incident, hi its duties under Articles 74(3) and 83(3) of the Convention.[2]

The Arbitral Tribunal made the obligations of states in relation to disputed waters very clear. They should refrain from forcefill actions and make every effort to negotiate in good faith.

South China Sea Arbitral Award

A similar obligation applied hi the South China Sea Arbitral Award. Article 279 of the 1982 Convention refers to the United Nations Charter, specifically the requirement to resolve disputes by peacefill means under article 2(3) and the specific peacefill means identified under article 33, such as negotiation, judicial settlement and so on. Further, and as noted by the Tribunal. the 2002 Declaration of Conduct of Parties in the South China Sea, made by the foreign ministers of the ASEAN states and China, specifically declared a commitment to freedom of navigation and overflight in accordance with the Convention. It also stated an undertaking, in accordance with international law and the Convention specifically:

to resolve their territorial and jurisdictional disputes by peacefill means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned.

and.

to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability.[3]

This would strongly suggest that neither state should resort to any threat or use of force. While both China and the Philippines accused each other of violating these principles in respect of various aspects of then- overall dispute, the Tribunal did not make such a finding and stated specifically in respect of the issue of denying traditional fishing rights that ‘the Tribunal does not find the record before it sufficient to support such a claim in respect of either Party’.

The Tribunal did. however, state that, once dispute resolution proceedings have commenced, the obligations under article 279 of the Convention to resolve disputes by peacefill means obliged parties not to aggravate or extend a dispute. Even when proceedings have not commenced, the Tribunal referred to the Friendly Relations Declaration. It stated that refraining from the threat or use of force is ‘inherent in the central role of good faith in the international legal relations between States’. Even if the Tribunal did not apply this point directly to the incidents in question, it speaks strongly of the requirement to refrain from the threat or use of force in such situations. It also echoes the dissenting opinion of Judge Alvarez in the Corfu Channel Case in 1949 that ‘To answer: vim vi repeliere, would amount to referring the solution of a purely juridical problem to the arbitrament of force’.

It is important to note here that China has not articulated the nature of its ‘Nine Dashed Line’ claim, and the Tribunal did not find that any of the features in question generated an EEZ, so there is actually no formal question of overlapping EEZ claims. The Philippines may still therefore enforce its EEZ rights in so far as they extend from the baselines of the Philippine archipelago.

Conclusion

There is less ambiguity with respect to incidents involving warships on the high seas. They may defend themselves and they may also be subject to actions in national self-defence where they threaten a coastal state, even from the high seas. Despite the apparently growing number of incidents of provocation or intimidation involving Russia and China, the law is relatively straightforward. Where necessary and proportional, warships may use lethal force in response to a lethal threat and may use non-lethal levels of force in response to non-lethal threats. Warships may escort merchant or fishing vessels and similarly use force to protect them.

The EEZ presents greater complications. A warship or task group can exercise its high seas freedoms of navigation in the EEZ subject to showing due regard to the sovereign rights of the coastal state - this may include military survey and the use of remote-controlled vehicles, among a range of activities which warships may condrrct in accordance with the freedoms of the high seas. Where the coastal state does not have its sovereign rights respected, it may escort fishing or oil and gas industry vessels in its EEZ in order to protect them, whether of its own or a foreign flag. It may even use proportional non-lethal force to remove warships that interfere with natural resources industries in the EEZ or threaten environmental harm.

All of this is subject, however, to the overriding obligation on states to resolve disputes peacefully. The mere presence of warships in the EEZ, or a disprrted area, should not breach this obligation. There are situations where there is a dispute as to which state has jurisdiction over an area, whether a boundary delimitation issue or an excessive claim from a territorial sea baseline. There are also disputes over the extent of that jurisdiction, such as what military activities are permitted in the EEZ. In these cases, the obligation is not to aggravate these disputes by forceful action. This should mean avoiding situations where a warship uses force against another warship; such situations are much better resolved ashore by diplomats if at all possible.

  • [1] Guyana v Suriname Arbitration 142 2 Ibid. 147-148 3 Ibid.
  • [2] Ibid. 159 2 See Patricia Jimenez Kwast, ‘Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana Sunname Award’ (2008) 13(1) Journal of Conflict & Security Law 49, 69-72; Nicholas loan-mdes, ‘The China-Japan and Venezuela-Guyana Maritime Disputes: How the Law on Undehmited Maritime Areas Addresses Umlateral Hydrocarbon Activities’ EJ1L Talk (online), 25 January 2019 www.ejiltalk.org/the-china-japan-and-venezuela-guyana-maritime-disputes-how-the-law-on-undelimited-maritime-areas-addresses-unilateral-hydrocarbon-activities/; Note also the current disptite between Greece and Turkey over Ttirkey surveying an area of disputed EEZ with a survey vessel escorted by warships ‘Greek and Turkish Warships Collide in Mediterranean ‘Accident,’ Defense Official Says’ Haaretz (online), 14 August 2020 www.haaretz.com/world-news/europe/ greek-and-turkish-warships-collide-in-mediterranean-accident-l.9072623 3 South China Sea Arbitral Award 21 4 Adopted by the Foreign Ministers of ASEAN and the People’s Republic of China at the 8th ASEAN Summit in Phnom Penh, Cambodia on 4 November 2002, available at www. aseansec.org/13163.htm.
  • [3] Note also endorsement of the Declaration by the United States, reported in ‘U.S. Statement Calls for Peaceful Resolution of Competing South China Sea Claims; China Protests’ in John Crock (ed), ‘Contemporary Practice of the United States’ in (2012) 106(4) American Journal of International Law 855-856; see discussion of the Declaration in Schofield, n 26, 42; and in Sam Bateman, ‘The Impact of the Arbitration Case on Regional Maritime Security'’ in Shicun Wu and Keyuan Zou (eds), Arbitration Concerning the South China Sea: Philippines versus China (Ashgate Publishing, 2016) 236-237; Cameron Moore, ‘The Arbitral Award in the Matter of the South China Sea between the Philippines and China -The Use of Force and Freedom of Navigation’ (2017) Asia Pacific Journal of Ocean Law and Policy 117,136 2 Nong Hong states that both sides should avoid using force in ‘Law Enforcement in a Disputed Maritime Zone: A Political and Legal Analysis’ in Wu and Zou (eds), ibid. 215, 223 and 225-226 3 South China Sea Arbitral Award 448,450 4 Ibid. 317 5 Ibid. 6 Ibid. 459 7 Corfu Channel Case 108
 
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