UNCLOS and Its Limitations as the Foundation for a Regional Maritime Security Regime

Abstract

Abstract The 1982 UN Convention on the Law of the Sea (UNCLOS) provides the foundation for an effective regional maritime security regime. However, this large and complex Convention is not without its limitations. There are many examples of apparent non-compliance with its norms and principles, and the United States, as a key player in regional maritime security, is not a party to it. The root causes of problems in East Asia lie in basic conflicts of interest between regional countries on law of the sea issues, the “built-in” ambiguity of UNCLOS in several of its key regimes, and the geographical complexity of the region. This paper discusses key limitations of UNCLOS; particularly the use of territorial sea baselines, navigational regimes, exclusive economic zones (EEZs), and some other issues covered by the Convention, such as piracy, hot pursuit and the responsibilities of flag states. The paper concludes that uncertainty in the law of the sea may grow and that state practice in East Asia, under the influence of domestic politics and regional tensions, may well continue to diverge from more traditional views of the law. The United States, in particular, may find increasing difficulty in maintaining its strict interpretation of navigational regimes and coastal state jurisdiction. East Asia will be critical in shaping developments with the international law of the sea of the future. The challenge in building an effective regional maritime security regime is to recognize the limitations of UNCLOS and to negotiate a regional consensus on aspects of the Convention that are less than clear or where differences of view exist.