World is facing a return to ‘might makes right’ on the high seas
China, Russia and other countries are seeking to rip up the rules that keep trade flowing and economies afloat, writes Stewart Mcdonald
In a small Dutch town called Assen, a hollowed-out tree trunk sits proudly in the middle of the local museum. It doesn’t look like much at first, but its provenance is extraordinary: that single carved trunk of Scots pine is the oldest boat in the world, estimated to have been used around 10,000 years ago at a time when our species was only just beginning to domesticate sheep and cattle.
The time between then and now saw legal thought develop and flourish, from the decrees of Hammurabi, carved in tablets of stone, to the resolutions handed down centuries later by the International Court of Justice. Yet against a backdrop of ten thousand seafaring, law-developing years, it took human beings an extraordinarily long time to agree on any kind of formal rules governing the high seas.
Up to the 20th century, countries often staked a claim to ownership of as much of the sea as they thought they could get away with – in several cases up to 200 miles from their shores.
Even as late as 1918, Britain and France roundly rejected President Woodrow Wilson’s proposal for “absolute freedom of navigation upon the seas, alike in peace and in war”.
The United Nations Convention on the Law of the Sea – the first codified and internationally agreed set of rules governing the sea – came into force in 1994. When we think of the canoe in Assen, heavy with the weight of 10,000 years, the 30 years since seem like the blink of an eye. That it took us several millennia (and the diminishing prominence of the seas as a warfighting domain) to agree on these rules should serve as a sign of how hard it is to agree to universally accepted, lasting international rules on anything. It should serve as a reminder of how strongly they must be protected.
The Houthis' recent attempt to choke a vital sea lane was a direct assault on the principles of international law and the rules that keep trade flowing and economies afloat. The international community's response was swift and necessary – although whether UK and US strikes on Houthi assets will sufficiently degrade the group’s capability seems doubtful.
If governments were to allow such assaults to go unchecked, a dangerous message would be heard in capitals around the world: that the freedom of navigation is not a right, but a privilege granted by the strong.
The world’s seas would assume a capricious character. This would be a disastrous turn, which could plunge the world into a sea of competing claims and restricted trade.
Indeed, freedom of navigation is not only under threat in the Red Sea. Russia has laid claim to the Northern Sea Route between Europe and Asia; China has built artificial islands in the South China Sea, gradually fortifying them with military installations, and uses its coast guard to harass neighbouring countries’ vessels.
China has even insisted that foreign naval vessels obtain its permission to pass through the area – a clear violation of the UN Convention on the Law of the Sea and the principles that the treaty embodies. It was little surprise, then, that Beijing had so little to say while the Houthis launched missiles and drones at transport ships – despite China having more than a passing interest in maintaining the smooth and safe international shipment of cargo.
Both Russia and China have made no secret of their desire to rip up the multilateral rulebook and rewrite it anew. When it comes to control of the sea, however, the driving factor is as often commercial as political: China would gladly levy fees on the third of global trade that passes through the South China Sea, while Russia would just as happily turn the Northern Sea Route into its own private toll road.
It is important to note that our friends and allies are not immune from the desire to lay claim to international waters. Canada claims the Northwest Passage as part of its internal waters, while Taiwan and Vietnam lay similar claims to China in the South China Sea.
And what student of Scottish politics could overlook the heated disputes over the ownership of Rockall, an uninhabitable granite rock deep in the Atlantic Ocean? Despite the Law of the Sea clearly stating that ownership of uninhabitable islets does not give states extended Exclusive Economic Zones, governments across the North Atlantic have bitterly fought over the question of who owns Rockall for decades.
These protectionist winds, which have always threatened the freedom of the sea, are today blowing stronger than ever. Now, as belts tighten across the world, governments are increasingly ready to put their own short-term economic interests over the long-term good of the international community and the very system which guarantees their peace and prosperity.
Looking at the ancient canoe in Assen, we realise the hard-won nature of international law. Despite thousands of years of seafaring, it took until 1994 for the majority of the world’s governments to agree on a set of rules governing the seas.
This hard-won progress now faces unprecedented challenges. Whether born out of malice, greed or naivety, increasing numbers of international actors, from small non-state groups to great powers, now seek to carve up the global commons for their own gain.
Letting these challenges go unchecked risks a disastrous fragmentation of global trade, rules and norms, and a return to an era where might makes right. It would make the entire world poorer, less secure and less safe – with the world’s poorest feeling the effects more harshly than anyone else. It cannot be allowed to happen.
Protectionist winds, which have always threatened the freedom of the sea, are blowing stronger than ever