Constitution or Compass? A Quiet Renegotiation of the Maritime Order

Constitution or Compass? A Quiet Renegotiation of the Maritime Order

Vito De Lucia

In June 2026, the China Institute for Marine Affairs published a substantial assessment of the United Nations Convention on the Law of the Sea (Assessment Report on the United Nations Convention on the Law of the Sea: Achievements, Positioning and Challenges), timed to mark the thirtieth anniversary of China’s accession. The report is worth reading carefully. At the outset, the report defends UNCLOS’s “solemnity, integrity, and authority” (p. ii) against interpretive abuse, while simultaneously insisting that UNCLOS possesses no constitutional supremacy and is merely one pillar among several legal sources. This apparent contradiction is interesting as it signals a structured deployment of distinguishable argumentative registers, each calibrated to a different target. Attending to that structure, rather than to the substantive merits of any individual claim, arguably captures a wider moment in the development of the law of the sea. In this sense, this article does not focus on the substantive questions addressed in the report (the interpretation of article 121(3), the extended continental shelf, or the “constitutional” characterization). The object of the analysis is the architecture of the argument, rather than its conclusions.

Four registers, four targets

In this reading, the report’s argumentative apparatus operates across four distinguishable registers. These are an analytical reconstruction drawn from the report as a whole. Each register reacts against a specific kind of actor performing a specific kind of “offense” by exploiting UNCLOS’s “inherent limitations” (such as the ambiguous content of some of its key provisions, p. 23) or emerging “external challenges” (such as climate change and technological acceleration, p. 23). At the same time, each register underpins a particular strategic goal the report suggests or openly promotes.

The first register treats UNCLOS as a fragile, determinate instrument, serving the crucial role of “an institutional safeguard against maritime hegemony” (p. 3). It thus must be protected with fidelity. This textualist register is deployed against adjudicators, and more specifically (in section 4.2), the South China Sea Arbitration Tribunal. When the report draws on Gilbert Guillaume’s charge that the Tribunal’s interpretation of Article 121(3) “disregards […] the ordinary meaning of the terms used, the negotiating history, and the general practice of states” (p. 25, as translated in the report) or on Eisemann’s consideration that the Tribunal engaged in a “complete rewriting” (p. 29) of the text of the Convention rather than interpretation, it is invoking a strict VCLT orthodoxy: the Convention means what its negotiators agreed, not what a creative tribunal subsequently constructed from teleological premises. The Convention here is precious, objectively delimited in its semantic scope and legal effects, and capable of being “wronged”. Both delimitation and fragility are grounded, by the report, in the compromises underpinning the “package deal” nature of UNCLOS, and with it the deliberate ambiguity of certain provisions (p. 23). And ambiguity, on this register, is a vulnerability to be guarded and not a springboard for imaginative interpretation.

The second register does something quite different, yet from the same premise. The textual ambiguity and incompleteness that register 1 flags as a vulnerability that needs to be protected becomes, in Sections 2.4 and 3, the reason UNCLOS cannot possibly express the whole legal order of the oceans. Here the report seeks to address UNCLOS’s constitutional “misleading metaphor” (p. 11), mobilizing Lagoni’s commentary to the Convention’s Preamble (p. 11), the ILC Fragmentation Report’s doctrine of the horizontal nature of the international legal system (para 324), and Karen Scott’s argument that the constitutional label has become a “straitjacket” (p. 270) warranting “quiet abandonment” (p. 271). UNCLOS here is no longer precious, but ordinary. It is one important source among several, with no general order of precedence over the rest. This register restricts rather than defends, and it practically demotes the Convention’s normative claim on the wider legal order of the oceans. 

When the report turns to the “Non-Party major power” (the US, p. 34), and its unilateral delineation of an extended continental shelf and its seabed mining activities, it deploys two distinct denial moves mapping to two different registers. 

The third register denies that the UNCLOS provisions the non-party wishes to exploit have passed into customary international law in the first place. When the US delineates an extended continental shelf outside the CLCS process, it does so by invoking CIL as an independent legal basis – a move that would, on its face, be consistent with register 2’s own framing of UNCLOS as one piece among several in a wider legal order. The report’s response, however, drawing on Baumert’s analysis of Article 76(8) and on Churchill and Wood’s broader point about institutional provisions lacking “norm-creating character” (p. 35), pushes against that move at the source: the procedural and institutional provisions of UNCLOS have not crystallized into custom, so no such CIL entitlement is available to be invoked by a non-party. The claimed right does not exist outside the treaty framework.

The fourth register addresses the deep-sea mining claim through the mirror-opposite move: a universalizing CIL argument, asserting customary status for the common heritage principle as a prohibitive, non-appropriation norm binding all states regardless of treaty membership. The Area and its resources belong to mankind as a whole; no state, party or non-party, may bypass the ISA, the only lawful pathway the prohibition leaves open for legitimate exploitation (for competing views on this see e.g. here, here and here). 

The combined structure of these two registers is thus one that first denies the customary basis for the entitlement claim, and then asserts a universalist regime that precludes unilateral action regardless of treaty status.

The report’s architecture as a whole

In summary, the report as a whole first takes aim at adjudicators reading UNCLOS (too) expansively (register 1); then at anyone using UNCLOS’ constitutional characterization as a trump card over other legal sources (register 2); then at non-parties invoking CIL to claim entitlements that the treaty framework does not grant outside its institutional machinery (register 3); and finally at non-parties selectively harvesting the convenient bits of custom while discarding the institutional obligations that accompany them (the “pick-and-choose approach”, p. 34, register 4). Each register addresses a specific “threat” enacted by a specific kind of actor.

Each individual proposition the report advances is a tenable, and arguably strong, argument. The report’s most interesting aspect, however, is in the combination, sequencing and assembling of these independent positions into an apparatus whose overall structure serves the coherent institutional purpose of safeguarding the multilateral legal order of the oceans against perceived threats. No single position, on its own, would serve this overall purpose.

This kind of register-switching is not, of course, unique to this report or to this actor. It is arguably a structural feature of international legal argumentation more broadly (Koskenniemi), and one that becomes especially visible wherever maritime authority is contested (Guilfoyle). The United States’ own practice exhibits a parallel strategy: its freedom of navigation program challenges the “excessive maritime claims” of coastal states under “international law as reflected in the Law of the Sea Convention” (DoD FON Report FY2020, p. 1), while claiming an expansive enforcement reach on the high seas; and since the 1983 Ocean Policy Statement, the US has treated the Convention’s navigational provisions as custom binding on all states while denying that status to Part XI – clearing the way for the unilateral deep-sea mining position that the report’s third and fourth registers are constructed to block. Regardless of where the stronger argument may lie, the point here is to note that the technique reflects on the one hand the realities of a contested maritime domain, and on the other that law and legal argument offer a legitimizing discourse and remain a “useful space for conducting politics” (Guilfoyle, p. 1005). What distinguishes the CIMA report is not the register-switching itself, but where it leads – as the next section suggests.

An Alternative “Constitutional” Framework?

There is a further dimension to register 2 that is worth considering. The demotion of UNCLOS from its constitutional status isn’t only a defensive move designed to prevent anyone from wielding the Convention as a trump card over other legal sources. It may also be, if read against the report’s closing recommendations, a preparatory one. A Convention occupying a constitutional position would leave no conceptual space for anything else to provide overarching orientation to the international maritime order. Having spent Section 2.4 establishing that no such supremacy exists – and that UNCLOS is an ordinary treaty that exists alongside other sources in a horizontal legal order – the report’s recommendations are then free to suggest something else might fill that vacant position without appearing to claim supremacy over UNCLOS itself.  

That something else is China’s Four Global Initiatives: the Global Development Initiative, the Global Security Initiative, the Global Civilization Initiative, and the Global Governance Initiative. The language the report uses is telling: the GGI provides “a strategic compass and operational roadmap for tackling the inherent difficulties and external challenges confronting UNCLOS implementation and for advancing global ocean governance” (p. 42). Read against register 2, this doesn’t appear as incidental phrasing. A compass provides orientation above the level of any particular instrument – it is what a Constitution does. 

What makes this move particularly noteworthy is, however, a second element. The report deploys UNCLOS’s own preambular universalism – “the interests and needs of mankind as a whole”, the Area as “common heritage of mankind”, the desire to settle law of the sea issues “in a spirit of mutual understanding and cooperation” – and presents the “community with a shared future for mankind” framing as already continuous with it. The Convention’s own language is retroactively mobilized to indicate that UNCLOS was always pointed toward something like the shared-future vision. The GGI then is presented as the natural completion of what UNCLOS’s preamble was already pointing toward.

The effect of this operation is that defending UNCLOS’s authority and advancing the GGI’s reform agenda become – within the report’s propositional architecture – the same project rather than two. UNCLOS’s doctrinal legitimacy is borrowed to anchor the GGI’s credentials as a framework for ocean governance; the GGI’s ambition as a global governance vocabulary provides the overarching orientation that UNCLOS, without a constitutional status, can no longer supply on its own. This move, underpinned by the vision of a maritime community with a shared future, is consistent with China’s broader positioning as a defender of the UN-led order and of multilateralism, and a shaper of a reformed system of global governance (see e.g. here and here).

To be sure, the constitutional-status discussion cites mainstream scholarship, and invocations of Chinese governance vocabulary are near-obligatory in institutional publications of this kind – genre convention, perhaps, rather than designed proposition. But this structural reading does not depend on intent: whatever the drafters’ design, there is a functional fit between the two narrative steps that arguably deserves attention.

Why this matters at a moment of crisis for international law

Ultimately, the salient aspect of this report, in the reading offered by this article, is the proposition of a compass. A compass becomes necessary, and a compass can be offered, only when orientation is in question, at a time of crisis, and such is arguably the condition of the present juncture. The frameworks of the post-1945 maritime order are perhaps not (yet) collapsing, but neither are they holding firm; their orienting authority has become uncertain, the political intensity of key questions creates incentives for pushing both practices and legal arguments further than the accepted vulgates, and it is precisely into that uncertainty that the report speaks, proposing a new vision while formally defending the old instruments.

In such a juncture, every significant actor in the contest operates in two registers at once. There is the register of practice: interceptions of tankers on the high seas on the basis of domestic sanctions, executive orders authorizing deep-sea mining outside the ISA framework, island-building and coercive coast guard operations, warship transits as physical argument. And there is the register of law and legal argument: annual FON reports and Limits in the Seas studies, position papers, anniversary assessments, curated bibliographies. The United States deploys both, and so does China. 

What distinguishes the current juncture is not the choice of register but the direction of investment. The incumbent guarantor of the maritime order is visibly disinvesting from the legitimizing side of its own practice: freedom of navigation, long defended as a global public good, increasingly appears conditional on political will, and the credibility of a program built on challenging others’ “excessive maritime claims” decreases with every high-seas interception conducted on the basis of unilateral sanctions. The CIMA report moves in the opposite direction: it is a substantial investment in exactly the legitimizing, consent-seeking discursive labor that the incumbent is shedding – a bid, one might say, for the intellectual and moral leadership function that is being vacated.

Nor is this a two-player game. Responding to the recent high-seas interceptions, Russia’s foreign minister observed that the provisions of UNCLOS are “[not] eternal” and that, if so, “we need to sit down and agree on how to behave on the high seas”. The renegotiation of the maritime order, in other words, is proceeding through several modalities at once – operational faits accomplis, discursive repositioning, and even explicit offers to rewrite – converging on the same result: rules long treated as settled are back on the table. This is what “quiet renegotiation” means: not a conference, but an accumulation. The crisis vocabulary that now surrounds international law – “crisis”, “collapse”, “destruction”, “dystopia”, as Sarah Nouwen summarizes recent interventions – is itself part of this dynamic: the operational mode generates the sense of crisis that the discursive mode then offers to resolve.

What remains open is whether this multi-modal renegotiation will produce a more stable maritime order or will accelerate the fragmentation all its participants claim to resist. That question will not be answered by any assessment report. It will be answered, slowly and unevenly, by what states actually do on the water, and by whether the legal vocabularies competing to describe those acts retain enough shared authority to matter.