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

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 still not a party to it. The root causes of these problems lie in basic conflicts of interest between 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 East Asian region in particular. 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 is likely to 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 challenge in building an effective regional maritime security regime is to recognise 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