Under India’s Presidency, the Law of the Sea entered the Security Council’s agenda in August

In August, the Law of the Sea and the UNCLOS’ regime gained the spotlight on the United Nations Security Council’s agenda (UNSC). After the members of the Council shared their views regarding the importance of maritime safety and of safeguarding oceans for legitimate use, the sitting Council President for August, the Prime Minister of India, presented a Presidential Statement underlining the main conclusions arisen from the discussion on behalf of the Organ. Among many interesting points of view shared by the 15 members of the Council at the meeting, some statements stood out due to the involvement of the State pronouncing it in current marine disputes or controversies, including the permanent members of the UNSC.

Vladimir Putin, President of the Russian Federation, affirmed that Russia promotes strict adherence to key norms and principles, such as respect for sovereignty, non-intervention in internal affairs, and peaceful dispute settlement through dialogue. He said that his country is doing much to strengthen international rule of law in maritime security, especially by engaging in the full range of these matters in the United Nations and multiple regional formats, including in the Contact Group on Piracy off the Coast of Somalia, the Association of Southeast Asian Nations (ASEAN) Regional Forum and in East Asia summits. After reiterating Russia’s experience with anti-terrorism and crime prevention operations, he proposed the establishment of a special structure within the United Nations to directly address fighting maritime crime in various regions, based on support by Member States, which would engage experts, civil society, academia, and the private sector.^[1]

The Chinese representative stressed the importance of maintaining maritime security amid the pandemic, albeit noting that some countries are pursuing exclusive regional strategies in the Asia-Pacific region to the detriment of a common maritime security plan. Moreover, after stating that maritime security cooperation should uphold the principle of “community with shared future”, he went on to touch on some important events that have recently stood out in the law of the sea field. First, he addressed the South China Sea issue, pointing out that “the Security Council is not the right place to discuss the issue of the South China Sea”, and also that with joint efforts of China and the ASEAN countries, the situation in the South China Sea remains stable. Finally, he dealt with the Japanese decision to release Fukushima’s wastewater into the ocean, strongly urging Japan to revoke its “wrong decision”.

In a certain contrast to the former two, Anthony Blinkin, Secretary of State of the United States, made a speech with a negative view to both the South China Sea and the Crimea situations. He affirmed that the principles of the maritime order are under threat in the South China Sea, where there are dangerous encounters between vessels and provocative actions to advance unlawful maritime claims. Also, remembered the Arbitral Tribunal created five years ago, which delivered a “unanimous and legally binding decision firmly rejecting such unlawful expansion as inconsistent with international law”. Furthermore, he mentioned that States are unlawfully advancing interests in the Persian Gulf and the Black Sea, reaffirming the United States’ support for Ukraine’s sovereignty, and stressing that when nations purport to redraw borders, they undermine the sovereign equality of Member States, a guiding United Nations principle.^[3]

Interestingly, the representative of the US stated that the international community has long benefitted from the rules-based maritime order, where the 1982 United Nations Convention on the Law of the Sea sets out the legal framework for sea activities.^[4] Nonetheless, the United States has not ratified the Convention. The US Senate has not yet reached the two-thirds majority needed for such ratification, notwithstanding requests made by Presidents Clinton, Bush, and Obama in favor of the approval. Most of those arguing against the ratification continue to criticize the terms of the deep-seabed mining regime based on a singular preoccupation with President Reagan rejecting the treaty 22 years ago.^[6] This renders their position quite contradictory when criticizing third States, putting them in a weird spot.

Finally, on 9 August, in connection with the Council’s considerations, the President of the UNSC issued a presidential statement on behalf of the Council addressing the discussed topic. Among the affirmations included in the document, it can be highlighted the consideration that “international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December of 1982 (UNCLOS), sets out the legal framework applicable to activities in the ocean, including countering illicit activities at the sea”^[7]. This is a strong claim considering how complex it is still for some States to adhere to the UNCLOS completely.

Furthermore, the Presidential Statement included a call upon the Member States to consider, as appropriate, ratifying, or acceding to, and implementing several conventions such as the 2000 United Nations Convention against Transnational Organized Crime (UNTOC) and the 1988 Narcotic Drugs Convention^[8] – although the choice to not include UNCLOS here is an interesting one.

With that being said, these details are important because the Indian Prime Minister, a sitting President of the Council in August, decided to take a consensus-building approach by initiating consultations amongst all UNSC member states several months in advance.^[9] Therefore, although the UNCLOS’ legal framework is recognized as one that reflects international law, the Convention was not included in the paragraph where the Statement lists a hall of treaties which member states are called upon to ratify and accede to – such an addition probably would not had been reached by consensus. Of course, although presidential statements are an official document of the Council, made by the President on behalf of the Council, they are not a binding source on international law. Nonetheless, to have the UNCLOS legal framework being discussed on this multilateral stage and to have all these States addressing their position on the matter at the meetings is, at the minimum, quite interesting.

To conclude, this can be seen as a diplomatic victory for India. Before August, other States had attempted to include the topic on the Council’s agenda but to no avail.^[10] Now, in a period of time where a lot of the influential States are facing problems on the Law of the Sea field, for sure, the Indian diplomatic approach to build and issue this Presidential Statement can be seen as a brief moment of relief.

By Augusto Guimarães Carrijo, a student at the Federal University of Uberlândia, under the supervision of Dr. Felipe Kern Moreira, IBDMAR’s Director.

^[1] UNITED NATIONS. Press Release – Security Council/14598, 9 August 2021. Available at: https://www.un.org/press/en/2021/sc14598.doc.htm.

^[2] Idem, ibidem.

^[3] Idem, ibidem.

^[4] Idem, ibidem.

^[5] MIRASOLA, Christopher. Why the US should Ratify UNCLOS: A view from the South and East China Seas. Harvard Law School National Security Journal. Available at: https://harvardnsj.org/2015/03/why-the-us-should-ratify-unclos-a-view-from-the-south-and-east-china-seas/.

^[6] Idem, ibidem.

^[7] UNITED NATIONS. Presidential Statement. S/PRST/2021/15, 9 August 2021. Available at: https://undocs.org/S/PRST/2021/15.

^[8] UNITED NATIONS. Presidential Statement. S/PRST/2021/15, 9 August 2021. Available at: https://undocs.org/S/PRST/2021/15.

^[9] MOHAN, Geeta. UNCLOS ‘Laws of the Seas’ at heart of UN Security Council consensus, China onboard. India Today. New Delhi, 10 Aug. 2021. Available at: https://www.indiatoday.in/india/story/unclos-law-of-sea-un-security-council-maritime-security-open-debate-india-presidency-1838903-2021-08-10.

^[10] Other member states of the UNSC tried to move a debate on maritime security but it was always stalled, primarily by China. Past attempts by Vietnam (April 2021) and Equatorial Guinea (February 2019) for a full discussion did not succeed. See: MOHAN, Geeta. UNCLOS ‘Laws of the Seas’ at heart of UN Security Council consensus, China onboard. India Today. New Delhi, 10 Aug. 2021. Available at: https://www.indiatoday.in/india/story/unclos-law-of-sea-un-security-council-maritime-security-open-debate-india-presidency-1838903-2021-08-10.