The idea of owning and controlling land (territoriality) has long shaped how countries deal with each other. What once began as a matter of physical demarcation on land has extended into the fluid and legally complex maritime domain. This aspect is what experts call ‘territoriality’. So what is Territorialisation of maritime disputes? When the states extend their idea of ownership, control and sovereignty that was originally meant for land also to the sea, we call it Territoriality of Sea and applying the land sovereignty concept to the disputes regarding sea is called territorialisation of maritime disputes. This article tries to dive deeper into the history, evolution and complexities tied to the territorialisation of maritime disputes.
A brief background
Since the conception of territoriality has developed in the international system, we have seen how it has not only shaped the conduct of states based on sovereignty and territorial integrity also how territorial disputes have taken place between states due to the incongruity in the perception of territorial borders. Although territorial sovereignty and integrity of states needs recognition of the same by other states, this has not fizzled out the possibility of territorial dispute. By the term territorial dispute, it means an explicit expression of disagreement between states over the location of borders or the ownership of territory within the extent of the territorial sea i.e. within 12 nautical miles (nm).
Subsequently, the territorialisation has been extended to the maritime domain and codified by the United Nations Convention on the Law of the Seas (1982). Way back in the 18th century, the territorial waters of states were defined as being a ‘cannon shot’ from land (an idea developed by Van Bynkershoek in 1703) which was later defined as three nm. After the subsequent codification of maritime laws which were executed in 1958 and 1982, states are now entitled to territorial sea (12 nm), contiguous zone (18 nm) and Exclusive Economic zone (200 nm) and claim up continental shelf, amounting to 350 nm.
Philippe Pelletier has referred to merritoires– maritime spaces akin to territories yet inherently free from physical demarcation – while public international law (PIL) mirrors a terrestrial logic, transposing the spatial organisation of the nation-state onto the sea. As a result, maritime spaces transitioned from being perceived as open domains of universal navigation to contested arenas infused with strategic, economic and national interests. States strategically position, control or reclaim these pieces to assert dominance and territorial control over their adversaries.
As a result, apart from territorial disputes, states have now been engulfed in maritime disputes as well. Much of the maritime disputes between states are centred on the issue of overlapping maritime boundaries, contestation over ownership of natural resources, dichotomy between the legal aspects of islands and low-tide elevation; and most importantly differences in perception and interpretation of the UNCLOS.
Nevertheless, dispute is generally characterised by the differences of perception on territorial or maritime boundaries involving two or more states. It is also characterised by a display of force between parties involved but are mostly resolvable. However, the resolvability of disputes depends on a spectrum of factors which ranges from the nature of differences of perception, interests, incentives and domestic-political scenario.
Resolution of Territorial and Maritime Dispute
The difference in the intensity between dispute and conflict in which the latter is also characterised by the outbreak of war between states, this does not make the continuance of dispute (especially territorial dispute) appreciable as it results in political instability. Much of the territorial disputes are managed bilaterally based on negotiation between the states. Yet another method which is used by the states to resolve the same is through third-party mediation.
On the other hand, maritime disputes between states are mostly managed through bilateral negotiation. In terms of resolution, much of the maritime dispute is resolved through third-party arbitration and adjudication. This is a legal method of resolution which is guided by the Part XV of the UNCLOS. The arbitration and adjudication cases of maritime dispute are usually addressed by the International Court of Justice, International Tribunal for the Law of the Seas (ITLOS) and the Permanent Court of Arbitration.
Layered Complexities of Maritime dispute
Given the context of territorialisation of maritime domain, in addition to the nature of maritime dispute and the process of resolution; there are other aspects of the maritime dispute which need to be discussed.
First Complexity: Vagueness in Definitions
The complexity around maritime dispute has changed over the span of four decades ever since the codification of the UNCLOS 1982. There still exists vagueness in defining islands and rocks by international law, and many disputes have begun to be centred around the same issue. For instance, much of the ongoing maritime disputes in the Asian waters is centred on the contestation of ownership of islands and rocks. One of the contending issues in this area is that although the UNCLOS have defined the island and how any feature can qualify to be categorised as island. However, the vagueness continues to exist in regard to the definition of rock. The perks of proving a rock as an island comes from the fact that the contesting state can claim territorial sea, contiguous zone and Exclusive economic zone of the same. In addition, the probability of presence of oil and natural gas reserves in these maritime domains, adds yet another layer of complex contending claims in maritime dispute.
Second Complexity: Drawing Maritime Boundary
The second layer of complexity is the drawing of the maritime boundary and the method used for the same. The drawing of maritime boundary is a process which involves states drawing their boundaries between their maritime zones on the one hand, and the high seas/or the maritime zones of their neighbouring states on the other hand. This often involves two stages: a unilateral claim stage and delimitation stage. In addition, the drawing of maritime boundaries involves the process of recognition of the same by other states. In case of overlapping maritime boundaries between states which were either located adjacent or opposite to each other, these states have either pursued joint delimitation or designated a joint exploration area. The legal aspects can be settled through either arbitration of adjudication.
Third Complexity: Legality of LTEs and Artificial Islands
The third issue is the legal aspect concerning low-tide elevation and artificial island. There has always been differences existing in the legality of islands and LTE. Islands are entitled to have territorial sea whereas the LTEs since it is submergible during high tides are not entitled to generate territorial sea, contiguous zone and Exclusive Economic Zone.
The reason behind why the legality of low-tide elevation has garnered attention in recent times is the activities of China in the South China Sea where it has resorted to building artificial islands. In accordance with the UNCLOS article 60 (8) it states that artificial islands, installations and structures do not have the status of islands and possesses no territorial sea of their own. However, the state may hold sovereignty over the artificial island which is constructed by the state but this is dependent on which maritime zone it is constructed namely internal water, archipelagic waters and the territorial seas.
Further reading : China’s Artificial Islands and Low Tide Elevations
Fourth Complexity: Nationalism
The fourth aspect of this complexity of maritime dispute is that it is also flared up due to domestic politics, rising nationalism and irredentism. The usage of the reasons such as historical rights and politicizing the issue of maritime dispute at a domestic level can be taken as a point of reference. For instance, maritime disputes have become tools for rallying popular support, particularly in China and Vietnam, where nationalist sentiment is instrumentalised by authorities to consolidate legitimacy behind their respective Communist Party. As a consequence, historical narratives and references to the origins of nationhood remain embedded in the geopolitical landscape surrounding the South China Sea.
Fifth Complexity: Narrative Setting and Cartographic Assertion
Lastly and in a similar vein to the previous aspect, the political and historical narratives on maritime domains are supported by cartographic perception through regular updates of maps. For instance, China’s map depicting the infamous “Nine-dash line” on the South China Sea can be taken as an example of cartographic assertion on maritime domain. Although maps can be accepted as evidence in territorial disputes, their legal value remains limited unless it is incorporated into a treaty.
Despite the ambiguities associated with cartographic discourse, the same is used for the simple act of naming and positioning a place which carries a profound political meaning. Therefore, maps used by states involved in either territorial dispute or maritime dispute are never neutral. These cartographic tools are used by states to garner sentiments in the public discourse which in turn acts as a mechanism to induce intangible elements in the maritime dispute, therefore further adding layers to the complex character of maritime dispute.
Therefore, the extension of territorialisation to the maritime domain has further added a multifaceted nature to it. Maritime disputes today are not merely legal or technical disagreements; they embody deeper political, economic, and nationalistic dimensions. The manifestations of the same can be seen how maritime disputes have become irresolvable, although in specific cases as that of the South China and East China Seas. From the pursuit of resource-rich zones to the assertion of national identity through maps and narratives, the maritime domain has become a theatre where law, geopolitics, and symbolism converge.
