High-end maritime security involves conflicting claims by states for control over marine resources. The purpose of this chapter is to explore the legal argumentation states may use under the 1982 UN Convention on the Law of the Sea (‘the Convention’). Grammar of legal argumentation concerns the way that arguments about the concepts and rules of law may be presented. The chapter argues that a grammar of objective law structures the concept of marine zones as collectively agreed, non-dispositive legal concepts, displacing a subjective grammar based on sovereignty, agreement and consent. This chapter references the Exclusive Economic Zone (EEZ), an innovation of the Convention on the traditional law of the sea. It examines the awards in the South China Sea and Chagos cases for four markers of an objective grammar on the EEZ concept. First, this concept is to become autonomous and exclusive in defining and distributing competences and entitlements over resources between states, displacing arguments based on sovereignty. Second, allocation of an EEZ to a state becomes based on geographic factors, substituting for agreement. Third, in the EEZ, states exercise powers under constraints, rather than discretionary rights. Fourth and finally, enforcement when contested becomes institutionalised, substituting for consent. The chapter concludes that the shift to an objective grammar is ongoing but by no means complete and highlights implications for maritime security in high-end disputes.
|Title of host publication||Maritime Security and the Law of the Sea|
|Subtitle of host publication||Help or Hindrance?|
|Editors||Malcolm D. Evans, Sofia Galani|
|Publisher||Edward Elgar Publishing|
|Number of pages||21|
|Publication status||Published - 17 Jan 2020|