De-coding the effectiveness of United Nations Convention on the Law Of Sea, 1994
"Understanding the legal and political perspectives (International Law) using the lens of political cartoons within the realm of International Relations”
By Mrityunjaya Dubey
"The Sea isn't a place but a fact, a mystery under its green and black cobbled coat that never stops moving" by Mary Oliver.
India’s resilience of liberalism has always withstood the dynamic currents of global politics. Indian Foreign Policy has been shaped by myriads of external factors such as foreign policies of key powers on the one fringe, while ties with neighbouring countries on the other fringe. In negotiating, enhancing and executing ties with major powers and neighbours India has always adhered to one of the core objectives of its foreign policy that has remained unchanged over time i.e. Faith in the United Nations. To this end, India has not only staunchly advocated but has also robustly supported various principles and objectives laid out by the UN from time to time. The vigour with which the world is grappling the current challenges particularly in the realm of International Law vis-à-vis the rise of assertive and expansionist China embarks on the urgent need of “like-minded democracies” such as India, the US, France, the UK and Germany to mention a few to dig deeper and arrive at a consensus to tackle various alarming challenges before the world perils corollary to rise of China.
Out of a pool of challenges that the Chinese conundrum has laid on the table, the respect for the rule of law under the auspices of International Law is the most significant one. The constantly waxing Chinese power in the economic, political, social, technological as well as psychological dimensions across the globe and its usual insolence of either subverting and suppressing International codes of conduct is a reflection of the dire state of various International Laws. China has always sublimed universal customs, treaties, traditions under the cloak of “some of the other ill-fated” nuanced principles cum notions such as “The Nine-Dash Line” and “The String of Pearls” to mention a few.
With the inception of the new US administration and President Biden's strong faith in observance of the respect for International Law and compliance with various significant UN treaties, conventions and characters, there is likely be a tough time for China to execute its ill-feted principles under the garb of its ever-growing expansionist policies. There are high possibilities that India’s positing and ties with its major partners across the globe has the immense potential to tackle these crucial challenges. China's irresponsible behaviour concerning the UNCLOS in general and the South China Sea, in particular, is a complete violation of the fundamental doctrines of State-related international law codified by the International Law Commission as lately as 2001. Therefore, it is important to understand the UNCLOS (1994), it is defined as “An international treaty that provides a regulatory framework for the use of the world’s seas and oceans, inter alia, to ensure the conservation and equitable usage of resources and the marine environment and to ensure the protection and preservation of the living resources and the marine environment and to ensure the protection and preservation of the living resources of the sea. It was adopted in 1982 and entered into force in 1994”. At this juncture, it has become noteworthy to hark back on the significance that the United Nations Convention on the Law of Sea (UNCLOS), 1994 holds for all major democracies have had abided by the ten Principles of the High Seas. Below are few interesting and engaging caricatures that have critically scrutinised the United Nations Convention on the Law of Sea’s and its juxtaposition between global politics.
The above image has been used as a background with different colour effects in the caricature analysis
Deep Water Oil Spill
The caption is the author's own creation "Mere geopolitics to reap economics benefits lead to havocs”.
The above caricature sets out a classic case of one of the major (UNCLOS) frameworks governing international relations (here Public International Law) gets side-lined when it comes to pragmatic realism. The case in point is the infamously called as Gulf of Mexico Oil Spill. This becomes one of the glaring examples in the history of the oil spill and havocs caused to the environment by a powerful state. The incident occurred on the 2Oth of April 2010. To this end, UNCLOS's article 194 makes it legitimately binding to the United States as it follows most of International Customary Law in its municipal laws by the doctrine of incorporation, whereby such international customary practices are self-ratified into municipal laws of the state. Thus, according to article 194 of UNCLOS United States must "take all measures necessary to prevent, reduce, and control pollution of the marine environment from any source". to this the end, it becomes obligatory for the US to not only protect the environment belonging to the Common Heritage of Mankind (CHM) for merely its geopolitical gains but also for the greater good of other neighbouring states (here Mexico). However, International Maritime Organizations' arbitration asked for US$20 Billion as compensation for causing this damage involving both public as well as private actors showcase loopholes within the current institutional mechanism of such International Law as MARPOL (Maritime Pollution) 73/78. The case through this political cartoon helps spectators analyze how International Law can be moulded as per the whims and fancies of some states at the cost of larger damage to humankind (here the environmental degradation).
South-China Sea Dispute
The caption is the author's own creation: “The Dragons' ever-expanding fires and the policy of dash lines."
The subtle representation of the People's Republic of China as a dragon trying to "forcibly" persuading several sovereign-states such as Brunei, Vietnam, Indonesia, Malaysia, Philippines, Singapore, etc. While on the other hand, regional grouping (ASEAN) shows the malicious intention of PRC's expansionist policies. To this end, PRC looks for its "Geo-Strategic" (i.e. resources and important trade route elaborated above) interest in her bid to occupy the South China Sea Region creating manifold conflict with several actors involved within and outside the region. China claims her ownership of the South-China Sea Region has been cited to stem from her policy of nine-dash lines. Aforementioned, it becomes the root cause of conflict raising disputes amongst almost all the states sharing common frontiers with China. It was on 20th July 2011, PRC created a dictum cum "Common Code of Conduct" for small powers in the region, as one of the rising powers taking advantage of her growing prowess. China's illicit policy of dash lines has proved to be an infringement of the basic principles governing the laws of the seas. the most prominent one is the freedom of navigation in international waters and conditional freedom of activity in the high seas. However, China's failure to recognize the difference between "islands" and "rocks" as set up by UNCLOS and circumventing the arbitration by Permanent Court of Arbitration, again harks back to feeble nature of international governance in the form of International Law. It becomes evident as China's seat at UNSC helps in taking leverage of her positions in swapping currents of International politics. The dispute is still ongoing and is a wait and watch the situation.
Enrica Lexie Case
Alternative caricature for the image above
The caption is the author's own creation: “The nexus between functional immunity and legal jurisdiction between India and Italy".
The given caricature/picture seeks the attention of spectators towards one of the recent and most talked-about examples of International Law (UNCLOS) involving two sovereign-state actors, i.e. India and Italy. It was on 15th February 2012, when a ship named MV Enrica Lexie carrying 19 Indians accompanied by six Italian marines, a total of 34 people as a crew was travelling from Singapore to Egypt was alleged shooting two Indian fishermen aboard St. Antony, from international waters on the Indian territorial waters (12 nautical miles as per the standard set-up by UNCLOS under its Two hundred sixty articles and 60 instruments). To this end, the Indian government has found Italian ship infringing upon in the Indian territorial waters having Italian Flag on Enrica took two Italian crew having alleged of the crime aforementioned as per Indian legal jurisdiction. Italy also played well in putting best of her arguments through all possible diplomatic channels to prove their claims valid as per the Convention on the Law of Sea. To this end, the Indian side also cited SOLAS (Convention for the Safety of Life at Sea) as it involved the shooting of Indian fishermen within Indian Territorial Water to which India holds full legal jurisdictional authority. However, due to myriads of intense phases of talks via several diplomatic channels, taking account of functional immunity into the picture and as per the Customary practice between the two states (India and Italy), the penalty was reduced from an accusation of "murder" to a mere "violence". This helped in the prevention of two Italian men from getting death sentence as was earlier deemed as per section 302 of Indian Penal Code. This shows the flexible nature of UNCLOS and International Customary Law under the broader rubric of International Relations.
Biden now the President of the United States of America and his fervour to bring back the multilateral forums for dialogue and negotiations on important issues will likely to drive the interplay of global governance and global politics. The US’s compliance with International Law and the respect for a “Rule-Based Order" in the anarchic plethora of international politics in this new decade would be a wait and watch the situation. To point out, the most glaring case of “The Paquet Habana” in International Law still holds revives the faith that democratic countries like the US have had complied to international institutions. However, there will remain many challenges to cope in the domain of International Law vis-à-vis China in particular apart from the shreds of optimism. There is an urgent need for like-minded countries to thoroughly discuss, debate and arrive at a holistic consensus amidst the fast-changing world order to keep intact “Rule-Based Order” across the global commons.
Mrityunjaya Dubey has a postgraduate degree in International Relations from Symbiosis International University. He has a keen interest in the field of international relations in general and a specialization in Europe and North American studies. His latest book is now available on Google’s Book titled “India-Australia Defence Cooperation in the Indo-Pacific: The changing nature of India’s Act East Policy”
Disclaimer: This paper is the author’s individual scholastic contribution and does not reflect the organisation’s viewpoint.