Australian Centre for the Study of Armed Conflict and Society Reinforcing the Law of the Sea Convention 1982 through clarification and implementation Rob McLaughlin 30 Apr 18

Outline Traditional alternatives to ‘more law’: Hard / Soft law mix; ‘Codes’ Other options? 1. Processes 2. Address evolving challenge through use of well suited existing rules PCASP 3. Refined interpretation Drugs and VWON 4. Exercise existing but under-utilized mechanisms Article 17 Vienna Convention on traffic of Narcotic Drugs and Psychotropic Substances

More hard law? Better implementation of existing law? Hard law options: Identify the gaps Overcome State resistance to ‘more law’ Time… US-USSR INCSEA – proposed 1968, finalized 1972 Other NATO – USSR INCSEAs (12) – proposed from 1970s; finalized UK (1986), Germany (1988), France (1989) etc US – PRC Military maritime Consultation Agreement – propsed 1995, finalized 1998, gridlock in updating Soft law options: WPNS CUES – proposed 1994, finalized 2014 Not legally binding Centre for Humanitarian Dialogue - Non-naval CUES? (since 2015)

Hard and soft law mixed options Options that do not require negotiating and settling new universal treaty level instruments (eg ‘Codes’ – but beware the roadblock of ‘legally binding’) Can be flexible, but takes time: Djibouti Code 2009 – piracy focus; Jeddah Amendment 2017 – expand to blue economy: ‘calls on the signatory States to cooperate to the fullest possible extent to repress transnational organized crime in the maritime domain, maritime terrorism, illegal, unregulated and unreported (IUU) fishing and other illegal activities at sea.’ Yaounde Code 2013 (West and Central Africa) -Piracy, information sharing Practical Guidelines: Somalia Based Piracy - BMP4; Guidelines for Owners, Operators and Masters for protection against piracy in the Gulf of Guinea region (Version 2, June 2016)

Alternatives? 1. Processes…

Alternatives 2. Address evolving challenges through use of well suited existing rules PCASP (not military VPD) Existing law on Jurisdiction: Already covered by Flag state jurisdiction, with overlays re: weapons in TS/Internal waters Also Secondary jurisdiction available in many (but not all cases, depending upon extraterritoriality of law) – nationality principle And, to lesser extent, alternatives (effects, etc) exist Where is the gap? Existing law on use of force and self-defence: Flag state law; nationality; sovereign immunity Enrica Lexie is NOT about a gap in the law… …it is about how existing regimes interact

Example: PCASP – Soft law and guidance Soft law, regulatory guidance, and Handbooks National guidelines (eg UK) BIMCO GuardCon IMO Circs ISO Standards No gap in the law… Gap is in implementation or understanding…

Alternative 3. Refined interpretation – example: VWON Vessels without nationality: We don’t need more law; rather we need… Precision around terminology: Unflagged Stateless VWON Further specific analysis and debate around existing jurisdictional availabilities as means of distilling interpretation further LOSC 1982 Art 92(2) – indicates that law of the sea anticipates states asserting jurisdiction over VWON

Alternative 4. Use existing but under-employed mechanisms – example: drug trafficking No need to re-create wheels States have (mostly) already signed up to and accepted the mechanism Clear and unambiguous existing universal obligation Easier to build a soft law extension on top of an existing hard law obligation… …than to build anchorless soft law, …or new hard law

Conclusion Hard law in the maritime domain is hard to achieve and takes time: Concerns over making operational deconfliction / cooperation mechanisms ‘legally binding’ Can never truly be bilateral given that it concerns the commons There are other ways to pursue improved implantation, enforcement, and cooperation outcomes that send equally significant diplomatic signals about commitment and intention: Process Here is the existing law, lets use it Explicit reference to existing law to solve manageable challenges within scope This is not new, the existing law points the way Refined interpretation Lets dig a bit deeper into the existing law Use the mechanisms already agreed We have already agreed to mechanism A; lets A to do A + some other stuff also

Thank you Questions?