Sea Control - Sea Control 461 - Peaceful Resolution of Territorial & Maritime Disputes with Dr. Emilia Justyna Powell and Dr. Krista Wiegand

Episode Date: September 10, 2023

The Peaceful Resolution of Territorial & Maritime Disputes, by Emilia Justyna Powell and Krista E. Wiegand, Oxford University Press, 2023

Hello and welcome to Sea Control Podcast. I'm Nathan Miller. Dr. Amelia Justina Powell and Dr. Krista Weekend joined me for a wide-ranging discussion based on their book, The Peaceful Resolution of Territorial and Maritime Disputes. I would like to pause here to highlight our local chapters. Whether you're in South Korea, Egypt, Singapore, France, New York, India, or the Caribbean, chances are there's a SimSec local chapter near you. You can find a full listing of local chapters and contact information on our website at simsec.org. So if you are interested, please reach out. Finally, I want to take the opportunity to recommend our partners in the SimSec podcast network, The Village Pumps. You can find Alex, Jamie, Drack, and a pile of iron

brew bottles wherever you download your podcasts. And with that, Kimber's Men. Hello and welcome aboard the Sea Control Podcast. I'm Nathan Miller. My guests today are Dr. Emilia Justina Powell and Dr. Krista Wiegand. We're discussing their book, The Peaceful Resolution of Territorial and Maritime Disputes. Emilia and Krista, welcome aboard. Emilia, could you start by telling our listeners a little bit about your background, please? I am a professor at the University of Notre Dame in political science, And I'm also a concurrent professor of law here at the law school.

And my research is on international law, peaceful resolution, and then the Islamic legal tradition and Islamic constitutionalism. Wonderful. Thank you. And Krista, same question. Could you tell the listeners a little bit about your background, please? Sure. I am the director of the Center for National Security and Foreign Affairs at the Baker School of Public Policy and Public Affairs at University of Tennessee. And I'm also a professor in the political science department. I teach international relations, and my research is on territorial and maritime disputes, dispute resolution, and bargaining strategies of bargaining, all of those kinds of things. Wonderful. Thank you for coming on the show. So as a reminder to the listeners, all opinions expressed here are our own and not reflective of any of the institutions with which we might be otherwise associated. The first question that I wanted to ask is, Krista, what is the impetus for this book? And how do you see it being used in the broader context? So when I wrote my last book about territorial and maritime disputes, which was at least 10 or 12 years ago, I noticed in my research that when countries tried to resolve their disputes, they were using a really wide variety of resolution methods, all the way from negotiations, mediation, arbitration, adjudication, and very different types of adjudication even. And they were also using very different strategies to try to win their claims. So I kind of saw this pattern. And Amelia and I had written several articles for journals about this topic of dispute resolution of both territorial and maritime disputes.

And we realized that there was no book that really looked out how strategic countries are when they're pursuing their different resolution methods. So when we realized this, we decided, of course, to write a book. And we see the book being used by international relations scholars, of course, international law practitioners, government officials and students, of course. And what we're hoping to do is really show how integrated these areas are. So we're hoping that on the academic side and the international relations side, that these scholars and students will really understand how important international law plays a role in these disputes. And then on the legal side, we're really hoping that that scholars as well as government officials understand better how technical and how important the role of international law plays in both. So bringing it together, both diplomacy and politics, as well as international law. You mentioned that there are a plethora of of ways that countries can go about solving these disputes. But, Amelia, I was wondering, what are some of the common issues that you all addressed in the book? And what were some of the better ways that disputants found to resolve these issues?

So those disputes have several common issues. So first of all, one thing that all of those disputes share is that there is a contesting of sovereignty rights. So states, countries, they often refuse to cede territory or maritime areas. So they argue over a piece of land, over an island, over a maritime zone. What's really also common to all of those disputes is that it's not really easy to argue over something really specific. Really, when it comes to a dispute and when that dispute is resolved peacefully, those contentions are contextualized in as complex baskets of claims. So it's really complicated. It's not really that we see in practice when those cases make it to the courts on arbitral tribunals that we see, oh, I want that island. No, it's a complex, but complex basket of claims. And really, all of those disputes sit firmly in the area of international law. So there's always a question of how should we interpret international law? Not only how should we draw a particular line to divide a maritime zone or delimit a border, but there are questions of interpretation and that generates uncertainty for all of the policymakers.

All of those disputes, one of the common issues that's really important is that they are high stakes. because there is no free land left in the world there are no free maritime zones for grabs or free islands you know it's all taken so these are high stakes and when you take the reality that that they are such high stakes disputes and that we have interpretation of international law what that means is that there's huge unpredictability of resolution so states are uncertain and they start to strategize they hire a bunch of appropriate people so legal counsel to help them strategize and then they choose an optimal method for resolution so they can choose to negotiate they can choose to mediate arbitrate or adjudicate

and then they continue strategizing up until they hope to win and at least not lose and that's the story of the book in your book you cover both sea maritime disputes but also territorial disputes on land what are what are the things that make them similar and different so this is a very important issue to try to understand how they are similar but also how they are different i mean really when when we fly above the earth you know on an airplane we see that land and sea are connected so deeply so deeply and legally they are also very connected how are they similar both of them deal with issues of sovereignty um resources so their economic strategic ethnic um issues and consideration in the context of both of those disputes and of course all states want

more than less of both maritime zones and territory right they are also very difficult to settle we have so many examples of procrastination or just really disputes that are hard to resolve so there's a huge deep connection they're also different territorial disputes i would say a bit a bit more dangerous and they pertain to the constitutive element of a statehood itself so in order to be a state um there must be territory population and government obviously there's territory you don't you take the territory away we really have very few examples in international law that a statehood continued without territory so states want that territory so it's possible to be a state without a maritime area but without territory it's much more much

more difficult so development of international law is fundamentally linked to territory so how do we um put maritime dispute in this context they're more recent disputes because as we say in international law land is kind of the base for international laws so for for maritime law so the land dominates the sea because without the land that touches the sea you cannot be a coastal state And we see maritime disputes being more frequent those days because states are trying to expand their maritime zones. What's really unique about maritime disputes that they have their own dispute resolution regime. We have the UN Convention on the Law of the Sea, on the basis of which the International Tribunal for the Law of the Sea was formed. And I feel, and I'm sure Krista would agree, that maritime disputes, they have always been present on this earth, I would say, but we're just seeing the beginning of them.

Well, speaking of UNCLOS, Krista, how has UNCLOS changed the maritime disputes relative to territorial disputes? And also to wrap in another whole can of worms here. how is that playing into the issues in the South China Sea? So UNCLOS is a really impressive international treaty with very high compliance rates around the world. It's an unusual treaty that it does have such a large number of states that have our members that actually comply. Some states do not, some countries don't, but a large number, including the United States, which is not a ratifying member, but still does comply through customary law. What's neat about UNCLOS is that it really provides, as Amelia noted,

very clearly delineated procedures and rules about dispute resolution, kind of like a guideline and a rule book that doesn't exist for territorial disputes. There is, as Amelia noted, the International Tribunal of the Law of the Sea, and that is a court specifically designed for maritime disputes, also other maritime issues, of course, shipping and other kinds of disputes, but that doesn't exist with territorial disputes. So what UNCLOS has done for maritime disputes is it's really codified and legalized this idea of what maritime zones look like for countries and how to better organize those maritime zones in a legal way that most countries do eventually comply with. One of the downsides of UNCLOS is, as Amelia noted, for many, many centuries,

the sea was just the sea. Some countries claimed very extensive maritime zones. Others didn't even think about maritime zones or maritime control. But UNCLOS has really necessitated clarification. If all these countries are agreeing to abide by and comply by UNCLOS, then they really need to determine where those maritime boundaries are. And of course, when there are overlapping claims, that means that these need to be resolved. So UNCLOS has in some ways necessitated or pushed these claims out there, but at the same time, it's helped to resolve the disputes as well. It's provided a mechanism to resolve them. Now, the South China Sea is a very complex dispute and UNCLOS was brought into this case. We talk about the South China Sea dispute

quite a bit in our book. And we looked at this case in particular because the Philippines, of course, brought this case to a specific arbitration panel, not to the Tribunal of the Posse, but to an arbitration panel in 2013. It was ruled on in 2016. And what was really interesting about this case is that we noticed that, and through a lot of interviews I did in the Philippines. I've interviewed about a few dozen government officials, people, law, legal scholars, people who were involved in the decision-making for that process. What we realized is that they studied UNCLOS and they studied other maritime law very, very carefully and made sure that they could take advantage of very clear descriptions and the way that

certain maritime features were defined, for example, islands. So, you know, islands only, if it's truly an island, you get to have a lot more maritime control or maritime access. But if it's not an island, if it's just a rock, you only get your 12 nautical miles, for example. So the Philippine government was very clever and very strategic. And this is why we studied this case, because we really saw that how much they, I don't want to use the word manipulation, but they were very strategic in defining and claiming some maritime features. But then also saying, you know what, these are actually not islands. And the reason they did that is they said, if these are not islands, then China, of course, the opponent cannot claim these maritime rights as islands. Neither can the Philippines, of course. But they didn't. They was more important to deny the right to China than it was to claim them for themselves. So this is just a really useful example to show how you can really use international law and mix it with politics and diplomacy and use UNCLOS in a very, very creative way. And of course, the Philippines did win the majority of its claims. Of course, China did not participate in the panel, nor, of course, have they complied. But we've seen that the ruling has really been observed and watched carefully by many different countries who have maritime claims and other, of course, especially the countries, the other claimants in the South China Sea. And so this is a really just a really interesting case that illustrates the strategies that we're talking about in the book.

Krista, what were some of the best practices that you all talked about in the book? What were some of the successful things that you found in this space? I think by far the most important part is for governments to remember that when, even though they're politicians, they're following policy. And then, of course, the lawyers are following the legal part. And then the geographers are following the geographic aspects. They all have to come together as a team to work really well together and very carefully examine all of the different options. There are many different strategies, many different options, as Amelia discussed, in

the selection of the dispute resolution they want to pursue. But then once they start the resolution method, it doesn't just stop. They have to continually observe and monitor what's happening with the other government that they're opposing in the maritime claim, and they have to adjust and they have to consider, should we put all of our claim out there? Should we make the best case? Or should we be a little more strategic and hold some of our cards back like in poker and have a poker face and really think about bargaining and being strategic and not just saying, we're going to claim everything and we're going to hope for the best. That's not really the way governments should be

approaching these disputes. And the good news is we're seeing this quite a bit. There are some cases, I think, where governments have been a little too quick to, you know, just to go to a court or, you know, mediation or something, and they're not really thinking through all the ramifications. But if they are very careful and very, they take the time to really consider all the options, all the strategies, and pursue the best strategies throughout the entire process, then they have a much better chance of winning or achieving much more of the claims that they wish. Amelia, so you all wrote about and have mentioned in this podcast about the variety of different methods with which they can resolve these issues. So how do you all see how the method

affects the outcome or the process of resolving these disputes? that's a really great question selecting a methods for resolution um really first of all states hire a bunch of legal counsels so lawyers and it's just not one or two these are really large amounts of money devoted to hiring the best legal minds to make something happen I remember one of our interviewees said it's like an orchestra that's working at a direction of an orchestra director to really perform a task. So states and those lawyers have a wide array of methods they can choose to resolve a dispute, whether territorial or maritime. So they can negotiate, first of all. This is really easy, usually low cost, but has many drawbacks. States can, of course, result to mediation, conciliation, inquiry, good offices.

These are methods that are non-binding. So once a decision is taken, the decision is not binding. And then, of course, the big guys, arbitration, adjudication, here is where international law is really consulted and decision is binding. So when the states and this orchestra of people are trying to choose which method to go to, there are many considerations because really the choice and the behavior within a particular method, so once adjudication is started, once negotiations are started, really can determine an outcome. There are different rules, different expectations, different procedures associated with each method. So the decision about which method to try is a huge one because it's a decision to channel a particular, as I said, basket of legal claims to a particular set of rules. So I would say that distinct methods can lead to distinct outcomes. So what do they have to decide?

How much do they want to consult international law? In negotiations, I would say international law is always in the background of all of those disputes. But states may decide with this orchestra to, you know, just go beyond negotiations. Do they want judges or not? What judges do they want? Who do they want? What is the jurisprudence of those judges? They're going to examine that.

Do they want the decision to be binding or not? Are they okay, for instance, with mediating a dispute, but then risking that the decision is not binding and that dispute will come back again? States think about a variety of things. And again, you know, we use the phrase states have disputes, but it's really states with the orchestra of legal people and politicians. What do other states think about that dispute? Every dispute is in the context of larger geopolitical and socio-legal economic situation of the world, of the region and of the neighborhood. States also think about what are you going to do if the other opponent doesn't comply with the decision? So these are huge decisions. As practice shows, those decisions are worth millions of dollars and states don't hold any money back. One last question for you all. Is there anything that you would like to discuss, anything that I've missed or neglected to ask you? Let me say one thing, and I discussed it with Nathan right before we started the podcast, is that it is important to see those maritime and territorial disputes as consisting discussions and processes among humans. because very often we see them as

dispute, maritime dispute Lebanon and Israel it's really a bunch of people, a bunch of lawyers policy makers, preferences backgrounds legal interpretation amalgamating together to produce an outcome that's meaningful

and I think that if as scholars we remove this human element from those disputes we're losing the heart of them well i'm sorry but that is all the time that we have for today amelia where can we find you online and what are you working on next i am working right now on a variety of projects on islamic maritime maritime law and the emergence

of maritime regime and also the influence of artificial intelligence on international law and my website is emilyapowell.com wonderful and Krista same question to you what are you working on next and where can we find you online my main project right now is about the security situation in the Indo-Pacific region involving the South China Sea the East China Sea of course and all the the other many disputes of course Taiwan all of the big big disputes in the Indo-Pacific region and the rising and really growing rivalry with the U.S. and China and how the U.S. alliance system, the five treaty allies, and then a number of partners, strategic, comprehensive and regular partners across the

region are responding to this rivalry and in which direction are they leaning toward the U.S., toward China, hedging, et cetera. And so we're looking at a lot of these maritime claims and how they're also influencing the power dynamics in the Indo-Pacific region. Well, thank you for joining us. And to the listeners, thank you for tuning in. We'll see you next time. Thank you.