Produced by: Saloni Rao, Shivika Dudeja
Transcript
Sameer Patil:
Hello and welcome to the Gateway House podcast, I am Sameer Patil, Fellow for Centre for International Security Studies. In June this year, a Russian aircraft buzzed the UK navy ship, HMS Defender, while operating off the Crimean Peninsula in the Black Sea. Many experts have called these Russian actions irresponsible and destabilising in the Black Sea. We have with us today, Professor Dr. Stefan Talmon, who has an alternative view to offer on the interpretation of international laws associated with this issue. Dr. Talmon is a professor of public law, public international law, and European law and director at the Institute of Public International Law at the University of Bonn. There has been an increasing focus on maritime laws and their interpretation since 2016 when the United Nations arbitral travel award on the South China Sea between China and the Philippines declared Chinese maritime rights based on nine-dash lines as excessive and illegitimate. China has also actively elected national decisions that are seen to supplant supremacy in the international maritime security architecture. I would now like to welcome Professor Dr. Talmon to offer his insights on the integration of maritime law into a hotly contested source, the Black Sea consultants. Thanks for joining us, Dr. Talmon.
Dr. Stefan Talmon:
Thank you very much for having me.
Sameer Patil:
In May 2021, a month before the HMS Defender incident in the Black Sea you wrote on the contradictions in international law, especially with regards to the United Nations Convention on the Law of the seas and laws of armed conflicts in the Black Sea. Can you tell our listeners more about these contradictions? Also, where does the 1989 US Russia joint statement on the uniform interpretation of rules of international law governing innocent passage fit into HMS defender?
Dr. Stefan Talmon:
Thank you very much. Yes, you mentioned that I wrote about the issue long before the incident of HMS defender took place in the Black Sea. In May 2021, I was struck by an announcement by the Russian Maritime Administration, temporarily suspending the right of innocent passage in some areas in the Black Sea surrounding the Crimean Peninsula and as an international lawyer, I was quite intrigued by this temporary suspension because under the United Nations Convention of Law of the Sea, of course, a coastal state can temporarily suspend the right of innocent passage for security reasons. So, at the time I was looking whether Russia could actually do this under the Law of the Sea Convention because of course, it requires the state to be a coastal state. Now, as you all know, the Crimean Peninsula is Ukrainian territory that has been under Russian control since 2014. It has been under military occupation and of course, the subsequent annexation of Crimea has not been recognised by the international community. The United Nations General Assembly has adopted a resolution calling on all states not to recognise the annexation of Crimea and to continue to treat it as Ukrainian territory. So, taking this as a starting point, under international law, it was clear to me that Russia could not be considered to be a coastal state, in terms of the Law of the Sea Convention, because the Crimean Peninsula is not Russian territory under international law. But of course, that is not the end of the story because if I take the United Nations and I take the views of many states as a starting point that Russia is an occupying power, then the question arises whether an occupying power, in contrast to a coastal State could also temporarily suspend innocent passage in an occupied territorial sea and so, I was starting to do some research to find precedents in international law, where occupying powers had temporarily suspended the right of innocent passage in occupied territorial seas. So, I came across, for example, US announcements of suspension of the right of territorial sea in occupied Iraqi territorial waters. As you all remember, in 2003, and 2004, Iraq was formally occupied by the United States and the United Kingdom and during that period of occupation, the joint occupation authority, suspended temporarily, the right of innocent passage in part of the Iraqi territory. So, to me, in May 2021, the situation looked like this, that, under the Law of the Sea Convention, Russia was not entitled to temporarily suspend the right of innocent passage, but under the laws of occupation, Russia was entitled to do so. As we have a situation of armed conflict between Ukraine and Russia, you could say that the laws of armed conflict are superimposed on the Law of the Sea. So, it prevails in a situation of armed conflict. So that was the situation in May 2020. So, I was very surprised, then when the HMS defender incident happened, that everybody just sees on the Law of the Sea Convention, but nobody seized on the laws of occupation. So not just in India, but also in the Western media, in my own country, everybody just said, it is illegal under the Law of the Sea Convention but nobody actually raised the question, whether there is some kind of authority under the laws of war under the international law of occupation. So that was my position in May 2021 and it’s still my position today that Russia as the occupying power in Crimea, was entitled to temporarily suspend the rights of innocent passages of foreign warships around the occupied Crimean Peninsula.
Sameer Patil:
Continuing to talk about China, just as Russia is perceived as an occupying power in the Black Sea, after its accession of Crimea in 2014. Can we describe China in similar terms in the South China Sea, especially after its takeover of Mischief Reef and Scarborough Shoal, or are the two cases different?
Dr. Stefan Talmon:
Of course, with regard to Crimea, there is general agreement that the Crimean Peninsula is part of the territory of Ukraine. So, Ukraine is the territorial sovereignty. Now with regard to the islands and islets in the South China Sea, we have several states laying claim to these islands and islets. The international community, including the Western States, the United States, my own country, always emphasise that they do not take any position on the question of territorial sovereignty. So, what we have in the South China Sea is various claims by coastal states. But there is no general agreement about the question of territorial sovereignty. So, we cannot describe China as an occupying power, because that would require that we would determine first, that the islands and islets are under the territorial sovereignty of some other state, like say, for example, the Philippines or Malaysia, or Vietnam. But of course, nobody outside the region takes any position on questions of territorial sovereignty. And the arbitral tribunal you mentioned before also did not take any position on the question of territorial sovereignty, because it’s not part of its mandate. So, the question of territorial sovereignty must still be considered to be an open one now, and if it’s an open one, then we cannot have a situation of occupation. Now, with regard to Scarborough Shoal, which you mentioned, the arbitral tribunal even assumed for the sake of argument that Scarborough Shoal is under Chinese territorial sovereignty. So, the whole arbitral Award with regard to Scarborough Shoal and the historic fishing rights of Philippine fishermen is based on the assumption that China is the territorial sovereign over Scarborough Shoal.
Sameer Patil:
Thank you. So, continuing with China, in February this year, China enacted a new Coast Guard law. In April 2021, it also released a draft of the maritime traffic safety law, which will come into force next month. Now, many experts find these laws problematic and part of China’s strategy to supplant international tools through domestic legislation. What is your take on this subject?
Dr. Stefan Talmon:
Now, I have not had a chance to look at the Coast Guard law, but I had a chance to look at the Maritime Traffic Safety law. And looking at the maritime traffic safety law, I think it is very much in conformity with many other maritime traffic safety laws I have seen before. Now, first of all, the maritime traffic safety law has nothing to say about the situation in the South China Sea. So, it is not specific to the South China Sea. It’s a general law that applies to all sea areas within the jurisdiction of the People’s Republic of China, leaving open what exactly these areas are. So, it’s based on the premise that China has jurisdiction over certain sea areas, but it does not determine which sea areas are under China’s jurisdiction. Secondly, the law is mainly addressed to vessels of Chinese nationality, offshore installations, and shipping containers installed in the waters within the jurisdiction of China. Now, here we have a clear basis in international law, which is called the flag state principle. China is entitled under international law to enact rules for ships flying its flag. So again, here there is nothing specific about it. There are in my view, some questions to be raised with regard in particular to Article 54 of the maritime traffic safety law, which requires ships of foreign nationality entering or exiting the territorial sea of China to report to the Chinese Maritime Safety Administration. And this applies to a number of ships like submersibles, nuclear-powered vessels, vessels carrying radioactive material, and other vessels that may endanger the maritime traffic safety of China. Now, here we might see a problem with regard to the right of the innocent passage under international law, and you of course, already referred to the 1989 US Russia Joint Statement on innocent passage. Now, big warships have a right of innocent passage and that right of innocent passage is not dependent upon prior reporting to the coastal state. So here are some questions that could be raised about the possible infringement of the right of innocent passage. Now, having said that, there are numerous other states that have similar laws in place. So, the question would be, whether we have already seen some kind of adjustment of international law in that area. But still, you know, as I said, questions could be raised with regard to the right of innocent passage. Also in Article 92, the law says that vessels of foreign nationality that are threatening the safety of the territorial sea of China may be asked to leave. Again, this is in line with other states’ legislation but again, a question could be raised, whether China could here interfere with the right of innocent passage in the territorial sea, because the question is, what does it mean, threatening the safety of China’s territorial sea. So, this is unclear, it will depend on how China will interpret and implement that law. As it is now, on paper, it as such does not necessarily violate international law, but it may do so if implemented in a certain way. So apart from that, as I said, there may be questions with regard to individual provisions of this Maritime Safety law. But after all, you know, the Maritime Safety law has more than 130 articles. And there may be questions with regard to one or two or three articles in that whole law. And it’s unclear how China will implement them. But overall, the law to me seems very much in line with the laws of other states.
Sameer Patil:
Okay. And finally, what is Germany’s view of Chinese maritime activities in the South China Sea? And how do you see the German frigate Bayern’s deployment next month in the South China Sea, which is a first since 2002? There is also speculation that this frigate may pay a port visit to Shanghai.
Dr. Stefan Talmon:
Germany as a major exporting nation is of course heavily relying on open oceans, it is heavily relying on the freedom of navigation to transport its goods to other countries and to receive goods from other countries by sea. Now, Germany like the other Western States does not take any position on the territorial claims in the South China Sea. And Germany has made rather general comments with regard to the South China Sea mainly focusing on questions of freedom of navigation. Now, Germany also has emphasised that it sees UNCLOS; the United Nations Convention on Law of the Sea as the centrepiece of the international legal order of the oceans, and Germany champions a so-called rules-based international order. So, it is very much interested in all the states complying with international law, and especially with the Law of the Sea Convention. And in that respect, Germany has raised concerns with regard to China’s attitude towards the arbitral award of 2016 in the arbitration between the Philippines and China, which you mentioned earlier. So, it’s more at a general level that Germany has taken a position on freedom of navigation, the rules-based international order and you may also know that in September last year, Germany adopted so-called guidelines for its policy in the Indo Pacific region, and as one step implementing these guidelines Germany has now decided to send a warship also to the South China Sea, but this has to be put in perspective. The warship that has left Germany on the second of August this year will be sailing through the Mediterranean. It will be taking part in a military exercise in the Mediterranean. It will then basically pass through the Suez Canal. It will then make its way to the Indian Ocean. It will take part in sanctions monitoring with regard to North Korea, it will call at a port in Japan. It may also visit South Korea and as you mentioned, it may even visit a port in China. This still is to be decided. Germany has requested a port visit in China but hasn’t had a definite reply from the Chinese side. So, in the media, this is often portrayed as Germany sending a warship to the South China Sea. Now to put this in perspective again, the German warship will pass through the South China Sea at the end of its mission on its way back to Germany. And Germany has already indicated that the warship will use the ordinary international shipping routes, it will not sail within 12 nautical miles of any of the disputed territories and it is not to be compared to the freedom of navigation exercise conducted, for example by US warships. So, this is a different category of military deployment, and although of course, as I said in the press or the media, this is reported as Germany now getting involved in the South China Sea. I think this is overstating the point.
Sameer Patil:
Interesting. Dr. Talmon, thank you very much for joining us today to share your insights on this very important subject. We appreciate you taking out time from your busy schedule. That’s it for this podcast, please do join us again. Thank you.
Sameer Patil is Fellow, International Security Studies Programme, Gateway House.
Dr. Stefan Talmon is Co-Director, Institute of International Law, and Professor of Law, University of Bonn.
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