Chinecherem O. Ubaka
Several Attempts have been made by international institutions and state governments towards achieving uniformity in the global maritime industry. This is evident in the number of international conventions in place to ensure that there is in existence real harmony amongst the stakeholders in the blue economy.
Generally, maritime arbitration have been adjudged to be the best form of dispute settlement in the maritime industry especially for maritime boundary disputes. However, when the dispute between the parties involved relates to ship collision and other navigational accidents, criminal liability has arisen. Consequently, Maritime arbitration will be an inadequate mode of settling such dispute.
The Existing World Maritime Legal Terrain/Framework
The United Nations Convention on the Law of the Sea(UNCLOS) have expressly conferred on certain states the jurisdiction to deal with certain cases. For instance, art. 97 of UNCLOS expressly vested jurisdiction on the flag state of the state from which the person in charge of the ship is a national to deal with marine collision and navigational accidents on the high seas.
Furthermore, the coastal states have the jurisdiction to deal with any case of unauthorized exploitation of natural and food resources in the Exclusive Economic Zone(EEZ). Yet, it is a prevalent phenomenon for the issue of jurisdiction to arise between state parties involved in a maritime dispute.
Settlement of maritime disputes under UNCLOS is default in nature.
Part XV of the Convention gives disputing parties “free choice of means of settlement”. There is a caveat however, the choice must be peaceful and should not endanger international peace, security and justice in line with the current goal no. 16 of the United Nations SDGs. Where state parties fail to come to a settlement, sec 2 of part XV provides four forums towards ensuring that the dispute is settled. They are;
- the International Tribunal for the Law of the Sea(ITLOS)
- the International Court of Justice(ICJ)
- an arbitral tribunal constituted in accordance with Annex VII
- a special arbitral tribunal constituted in accordance with Annex VIII of the convention
Why the Existing Maritime Legal Terrain is Inadequate
The ICJ and ITLOS have settled several maritime claims and disputes between different nations across the globe. From the famous “Nicaragua” case to that of the “Bakassi Peninsula” between Nigeria and Cameroon; Bay of Bengal between Bangladesh and Myanmar amongst so many others.
Under the current dispute resolution system, states must accept the jurisdiction of the UNCLOS before they can derive any advantage from the convention. The major result of the foregoing is that most times the disputing state parties refuse to accept the jurisdiction of the same organ.
For instance, in the Bangladesh -Myanmar maritime dispute over the “Bay of Bengal”, the states in dispute failed to come to a consensus as to the organ in which they accept it’s jurisdiction for over forty(40) years.
A Case for a World Maritime Court (WMC)
This opinion makes a case for a specialized maritime court in the international realm. Professor Toshifumi Tanaka, a professor of international law with specialization on the law of the Sea noted the protection of the marine environment can be considered a community interest i.e. a common interest of international community as a whole which goes beyond the interests of each state.
The establishment of the World Maritime Court(WMC) will check the incessant practice of ships owned by nationals of countries with stringent ship registration procedures from exploiting the advantage of registering under a less stringent state who might not have the wherewithal, resources and political will to prosecute them for crimes on the high Sea as flag states.
Furthermore, it will serve as a check to the activities of states like the United States that have refused to sign the UNCLOS treaty as well as those that have signed but are threatening to leave like China.
Since the 1990’s the “South China Sea” has been a subject of disputes between the countries across Asia i.e. Vietnam, Taiwan, Philippines, Malaysia and Brunei. All the countries contesting the South China Sea are parties to the UNCLOS.
However, China made a declaration in 2006 where it stated that she does not accept any of the procedures provided for in sec 2 of part XV of the convention. The Philippines submitted an “understanding” but initiated an arbitration under Annex VIII of the Convention. China rejected the recourse to arbitration by the Philippines and stuck to the position of neither accepting nor participating in the proceeding and noted that the tribunal does not enjoy jurisdiction in the absence of its consent. China’s 2006 declaration is like a slap on the dispute resolution modes under UNCLOS and the state have become aggressive and assertive about their “historic rights” to the Sea.
The existing legal machinery have proven to be grossly inadequate especially as the claimant states are reluctant to cede their sovereign territorial rights. We see nations forming blocs against China; China imposing stringent bans on activities on the South China Sea by the co-claimants. The result is that real trouble looms and unless the WMC is established, the common interest of the international community, peace and stability will remain in jeopardy.
In as much as the concept of state sovereignty remains sacrosanct in international law, the liberal approach of dispute settlement under the UNCLOS have failed to foster harmony in the legal terrain of the global maritime industry. Maritime disputes are prolonged and in some cases a deadlock is reached as in that of the “South China Sea” dispute.
Over the next decade, I hope that the existing legal machineries under the UNCLOS will be consolidated into a World Maritime Court (WMC) and that subsequently, we will witness a true resolution of the “South China Sea” dispute.
Keywords: South China Sea, Maritime disputes, World Maritime Court (WMC), China, ITLOS, Global Maritime.
Chinecherem O. Ubaka is a legal practitioner based in Lagos. She can be contacted via email@example.com