THE CONCEPT OF SOVEREIGNTY IN MARITIME INTERNATIONAL LAW
Navies exist to protect, defend, and project sovereignty. Legitimate mariners work for a sovereign state. Sovereign states, in cooperation with other sovereign states, establish the international order. Under the orders of the sovereigns, navies enforce International Law. Navies, coast guards, and merchant fleets are the creatures of the sovereigns. None but sovereign states may have these. So "men of warsmen" and coast guardsmen are in the business of protecting, defending, and projecting sovereignty while merchant men carry the commerce of the sovereigns. Now there are certain other types of vessels out there on the ocean, some are pursuing scientific research, or exploring for or extracting oil, or engaged in fishing, but all must be registered with a sovereign nation, fly its flag and carry its papers. There are no exceptions, non governmental organizations like Green Peace must have their ships registered with some nation. In the recent case of the Green Peace's ARCTIC SUN, now in the custody of the Russian Border Guards the ship was registered in the Netherlands. By operation of customary international law ships without a national identity are "stateless". Stateless ships are illegal and automatically suspected of being engaged in piracy or the slave trade.
Every properly commissioned naval vessel on earth has, under international law the right, duty, and obligation of "close approach" in order to detect and suppress piracy and the slave trade, which we assure you are both alive and operating today.
For much of the nineteenth through the first half of the twentieth century, most of the enemies that sea service personnel faced were in the service of their sovereigns. Prior to the development of steam ships and radio, sailors often faced international outlaws in the form of pirates, and in some cases ,virtual pirate states. Today, after more than a century, sailors in some parts of the world, face enemies that are not sponsored by legitimate sovereigns. Marine terrorism and piracy have been on the rise since the early 1990s. Terrorism is often supported through quasi state-like organizations and clandestinely sponsored by cooperating states. The pirate state similar to the old Barbary Coast princedoms is still with us today, though more careful to conceal its links to the actual outlaws.
Legitimate sailors in the service of a sovereign deal with other sailors in the service of a belligerent sovereign in one fashion; and with pirates and terrorists in quite another. It behooves all mariners to understand this concept of sovereignty.
What then is sovereignty? Sovereignty is a characteristic of nations, often referred to in International law as "states". The use of the term "state" connotes the governmental aspect of nationhood, as opposed to the cultural implications of the word "nation". Given that some less than fully sovereign geopolitical entities are referred to as "states", such as the various "states" of the United States, Mexico, and Brazil, some writers refer to "nation states" to distinguish the difference. Most instruments of International Law, when they refer to "states" mean "nation states".
So "state" in International law is a permanently organized society, effectively governed within a fixed territory. Within that territory such government and people are free from the control of any other state, and free to pursue the rights, duties and obligations of states imposed by International Law.
A state must have a government although it exists independently of the government of the moment. States are not extinguished by a change of ruling parties, constitutions, or even violent revolution. Government like organizations exist in the world such as the PLO, yet these are not states, though they aspire to be. A prime requisite of a sovereign state is that it must possess territory. The territory may encompass an entire continent such as Australia, or a golf course sized parcel within a surrounding urban area like the Vatican. Under International Law the size of the territory is not important to the concept of sovereignty . It is the definiteness of the territory that counts. Control must be exercised within the territory. Other sovereigns must know where the states control begins and ends. States may gain or lose territory without losing their sovereignty .
One way to lose territory is to fail to exercise control over a portion that is coveted by other sovereigns. Hence an important activity of many navies and coast guards in the world is sovereignty patrol.
This is the source of the problems in the China seas that we so often address in our series of posts titled "HOW FAR WILL THE DRAGON SWIM ? " China covets the exclusive economic zones and island territories of its neighbors which in fact are clearly defined in the international instrument called the United Nations Convention of the Law of the Sea and routinely patrolled by Philippine, Japanese, and Vietnamese navies and coast guards. When the dispute started in the 1980s China simply opened fire on and killed sixty some odd unarmed Vietnamese sailors for the offense of planting the Vietnamese flag on a semi submerged reef within their recognized EEZ. At the time Vietnam was rather friendless in the world and China paid no price for these senseless murders. By the way we have links to that video elsewhere on this web site. China exhibited more caution when bullying the Philippines and Japan. Increasingly China in recent years relied on the law enforcement vessels of its various maritime agencies to dash in and engage in "presence" activities within their neighbors waters, with drawing on the approach of the forces of the true sovereigns. Recently they combined a number of these maritime law enforcement agencies into the world's larges "Coast Guard" and gave the resulting fleet the title of the Chinese Coast Guard. The Chinese Coast Guard competes daily with the navies and coast guards of Japan, the Philippines, Vietnam and others to demonstrate that China exercises "effective control" over the China Seas from the mainland of China right up to the western beaches of the Philippine main islands. Out in the international waters between the actual recognized territorial seas of China and her neighbors the Chinese Coast Guard routinely meets and greets international shipping, welcoming them by voice radio to the "territorial waters of China and announcing that they will be escorting their "guests " for a while. The message is just plain silly in terms of existing international law but all navies and coast guards as explained earlier have the "right of close approach" so few contest the activity of the Chinese vessel. These escort activities are routinely video taped and recorded. China has filed a law suite with the UN's sea tribunal actually claiming the entire China Seas and all of their smaller and mostly uninhabited islands regardless of which recognized exclusive economic zone or even territorial sea they may be found in. China is grasping at legal straws in international tribunals while trying to somewhat gently muscle her neighbors out of their lawful watery territories. The Dragon is attempting to "prove" that she and not her neighbors have "effective control" and thus the community if nations should recognize China as sovereign over the entire China Seas.
This is an argument that China simply can not win. First simply because a nation uses a more powerful coast guard to out maneuver the naval services of an internationally recognized sovereign does not convert the activity from conquest, a now universally condemned method of acquiring territory. When a nation has recognized soverignity over an area and provides services and law enforcement it is not for a neighbor state to judge the adequacy of the "effective control". Under international law sovereigns are to be left undisturbed within their recognized boundaries, the test of effective administration is not the military ability to hold their turf against all aggression. All nations signatory to the UN Charter and that includes China have agreed to not engage in war except in self defense. More over the resulting international law plainly states that military conquest , in the event that war does happen does not transfer permanently sovereignty or title over territory. Under today's international law of war or armed conflict military occupation is seen as temporary. China leaders simply don't understand present international law or think they can get around it without incurring wide spread international condemnation and enforcement action. They appear to be simply pushing relatively gently until they feel they have the naval power to simply take what they want. What is happening is a costly naval arms race as Japan, the Philippines, and even India build up their navies in response. The U.S. has started to redeploy its forces concentrating more effort in the Pacific. If China's mischief continues at some point the U.S. will enter the naval arms race and build back up its Pacific fleet. When China's day of reckoning comes she is unlikely to be facing a single power. The net result of this present maritime foolishness is likely to be economic ruin and regime change for China.
We will continue this series after the On Line Boat Show coming up tomorrow and lasting through the week end. When we resume we will examine the Limits of Sovereignty, another concept of existing maritime international law that China either doesn't understand or intends to deliberately ignore.