Maritime Security and the Law of the Sea: Help or Hindrance? 2019951883, 9781788971416, 9781788971409

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Maritime Security and the Law of the Sea

Maritime Security and the Law of the Sea Help or Hindrance?

Edited by

Malcolm D. Evans Professor, University of Bristol Law School, UK

Sofia Galani Lecturer, University of Bristol Law School, UK

Cheltenham, UK • Northampton, MA, USA

© Malcolm D. Evans and Sofia Galani 2020

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2019951883 This book is available electronically in the Law subject collection DOI 10.4337/9781788971416

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ISBN 978 1 78897 140 9 (cased) ISBN 978 1 78897 141 6 (eBook)

Contents List of contributorsvii Acknowledgementsviii 1

The interplay between maritime security and the 1982 United Nations Convention on the Law of the Sea: help or hindrance? Sofia Galani and Malcolm D. Evans

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Beyond seablindness: a new agenda for maritime security studies25 Christian Bueger and Timothy Edmunds

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Fisheries and maritime security: understanding and enhancing the connection Richard Barnes and Mercedes Rosello

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High-end maritime security as legal argumentation Volker Roeben

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The commission of maritime crimes with unmanned systems: an interpretive challenge for the United Nations Convention on the Law of the Sea Anna Petrig

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104

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Unmanned maritime systems will shape the future of naval operations: is international law ready? Kara Chadwick

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Ships without nationality: interdiction on the high seas Andrew Murdoch

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Tackling maritime security threats from a port state’s perspective180 Sophia Kopela

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132 157

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Towards the Code of Conduct for the South China Sea: maritime security dimensions Keyuan Zou

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Index218

Contributors EDITORS Sir Malcolm D. Evans KCMG, OBE is Professor of Public International Law at the University of Bristol, UK. Sofia Galani is Lecturer in Law at the University of Bristol, UK.

CONTRIBUTORS Richard Barnes is Professor of Law at the University of Hull, UK. Christian Bueger is Professor of International Relations at the University of Copenhagen, Denmark. Kara Chadwick is a Barrister in the Royal Navy, UK. Timothy Edmunds is Professor of International Security at the University of Bristol, UK. Sophia Kopela is Nature Policy Associate at WWF Greece. Andrew Murdoch is Legal Director of the Foreign and Commonwealth Office (FCO), UK. Anna Petrig is Professor of International Law and Public Law at the University of Basel, Switzerland. Volker Roeben is Professor at the University of Dundee, Centre for Energy, Petroleum, and Mineral Law & Policy, UK. Mercedes Rosello is Principal Researcher at House of Ocean Consulting, UK. Keyuan Zou is Harris Professor of International Law at the Lancashire Law School and Director of the Institute for International & Comparative Law at the University of Central Lancashire, UK.

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Acknowledgements We are most grateful to Reece Lewis, University of Cardiff, for his outstanding editorial assistance.

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The interplay between maritime security and the 1982 United Nations Convention on the Law of the Sea: help or hindrance? Sofia Galani and Malcolm D. Evans

1. INTRODUCTION The seas and oceans cover 70 per cent of the earth’s surface, and 90 per cent of world trade is by sea.1 The oceans have always been a source of power and wealth for states who have been keen to delimit their own maritime limits, but states have also sought to ensure that the high seas remain open to all users. Major maritime nations have enjoyed a military advantage over smaller coastal and landlocked states by using and controlling the maritime domain for the purposes of navigation, commerce and naval warfare. Economic benefits from the development of the blue economy agenda have also become added to the exploitation of fisheries and of marine natural resources, which have traditionally contributed to the economies of states.2 Nevertheless, the continuing economic development of the oceans has been overshadowed by increasing maritime security threats. While traditional forms of inter-state disputes regarding the use and delimitation of their maritime zones remain, new maritime security threats posed by non-state actors have European Union Maritime Security Strategy, Responding Together to Global Challenges, A guide for stakeholders, available at https://​ec​.europa​.eu/​maritimeaffairs/​ sites/​maritimeaffairs/​files/​leaflet​-european​-union​-maritime​-security​-strategy​_en​.pdf. 2 The African Charter on Maritime Security, Safety and Development in Africa (the Lomé Charter) (15 October 2016) defined blue/ocean economy as the sustainable economic development of oceans using techniques such as regional development to integrate the use of seas and oceans, coasts, lakes, rivers and underground water for economic purposes, including, but without being limited to, fisheries, mining, energy, aquaculture, and maritime transport, while protecting the sea to improve social well-being, available at au​.int/​en/​treaties/​african​-charter​-maritime​-security​-and​-safety​ -and​-development​-africa​-lome​-charter 4. 1

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encouraged states to reconsider their understanding of maritime security and rethink the use and protection of their maritime domain. The 9/11 attacks were a wake-up call for the US, which realized that maritime infrastructure, including ports and maritime installations, might be vulnerable to terrorist attacks as well as that the oceans can themselves be used for the planning of terrorist activities, such as through the transfer of weapons or terrorists.3 The bombings of USS Cole and MV Limburg, the resurgence of piracy, the refugee crisis in the Mediterranean Sea, and the proliferation of weapons of mass destruction (WMDs) aggravated the concerns about the threats posed to maritime security by non-state actors.4 All this has brought maritime security to the forefront of thinking concerning the international law of the sea, with states and international organizations publishing, for the first time, their maritime security strategies.5 Unsurprisingly, states, scholars and practitioners turn to the 1982 United Nations Convention on the Law of the Sea (LOSC) – the ‘Constitution of the Oceans’ – to seek help on how to protect their maritime domain against new maritime security threats.6 LOSC was drafted for the purposes of ensuring the peaceful use of oceans but is considered a living instrument.7 This means that LOSC can be interpreted in a way that allows for current security challenges and threats to fit within the meaning of its various provisions.8 It is inevitable, however, that certain emerging activities and concepts closely interlinked with The National Strategy for Maritime Security (September 2005) available at https://​georgewbush​-whitehouse​.archives​.gov/​homeland/​maritime​-security​.html. 4 Report of the Secretary-General, Oceans and the law of the sea (10 March 2008) (A/63/63) [54]–[113]. 5 In addition to the US National Strategy for Maritime Security (n 3), see the UK National Strategy for Maritime Security (May 2014) available at https://​assets​ .publishing​.service​.gov​.uk/​government/​uploads/​system/​uploads/​attachment​_data/​file/​ 310987/​20140508​_NSMS​.pdf and the French National Strategy for the Security of Maritime Areas (22 October 2015) available at https://​www​.gouvernement​.fr/​sites/​ default/​files/​contenu/​piece​-jointe/​2016/​01/​strategie​_nationale​_de​_surete​_des​_espaces​ _maritimes​_en​_national​_strategy​_for​_the​_security​_of​_maritime​_areas​.pdf. For the maritime security strategies and plans of international and regional organizations, see Section 2.2. 6 United Nations Convention on the Law of the Sea 1982, 1833 UNTS 397. ‘A Constitution for the Oceans’ – Remarks by Tommy T.B. Koh, of Singapore. President of the Third United Nations Conference on the Law of the Sea, available at https://​treaties​.un​.org/​Pages/​ViewDetailsIII​.aspx​?src​=​TREATY​&​mtdsg​_no​=​XXI​-6​&​ chapter​=​21​&​Temp​=​mtdsg3​&​clang​=​_fr . 7 J Barrett and R Barnes (eds), Law of the Sea: LOSC as a Living Treaty (BIICL 2016). 8 For an in-depth study of maritime security and the international law of the sea, see N Klein, Maritime Security and the Law of the Sea (Oxford University Press (OUP) 2010). 3

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maritime security, such as the use of unmanned systems or the blue economy agenda, will not easily fit within the provisions and purposes of LOSC. This gives rise to the question whether insisting on relying on LOSC for answers to maritime security problems helps or hinders efforts to secure the oceans. This volume is therefore aimed at revisiting LOSC from a maritime security perspective. The underlying question that all contributors are invited to address is: does the 1982 LOSC help or hinder maritime security? This chapter will set the scene for the examination of this question by discussing the definition of maritime security, evaluating the approach of LOSC to maritime security and making an initial assessment of the interplay between LOSC and the responses of states to maritime security. It will argue that maritime security is not simply a concept that needs defining but a blend of threats and activities by state and non-state actors. This will lend support to the argument that the emerging blend of threats and activities at sea represents a paradigm shift in the international law of the sea. As a result, LOSC can offer some help in achieving maritime security but it is time to commence thinking about new tools and conventions that will strengthen the security of the oceans.

2.

MARITIME SECURITY: IN SEARCH OF A MEANING?

2.1

Maritime Security in the Literature

The term maritime security has not yet acquired a fixed meaning. Efforts to deconstruct its exact meaning have been made both in the literature and in the policies of states. In this chapter, we will use the definitions found in the literature as a starting point. We will then turn to comparing how states have interpreted maritime security in their maritime security strategies/policies and how LOSC understands maritime security in order to evaluate whether LOSC can help or hinder states in their efforts to achieve maritime security. The existing literature has focused more on the semantics and the actual meaning of security. It has been argued that security has a negative and a positive dimension. In its negative sense, security reflects a lack of threats, while in its positive sense, it ‘projects a certain ideal-typical end state that has to be reached’.9 In the maritime context, Klein has defined maritime security to mean ‘the protection of a state’s land and maritime territory, infrastructure, economy, environment and society from certain harmful acts occurring at sea’.10 This definition indicates what could threaten maritime security,



C Bueger, ‘What Is Maritime Security?’ (2015) 53 Marine Pol’y 159. Klein (n 8) 8.

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including traditional inter-state disputes as well as a range of other threats against maritime infrastructure, economic development, the marine environment and human security.11 To reflect these different threats, Bueger refers to a ‘maritime security matrix’ that consists of four core dimensions: national security, marine environment, economic development and human security.12 Each of these dimensions encompasses further threats and activities without it always being easy to determine under which specific dimension a threat or activity falls. For example, piracy threatens economic development as well as the human rights of seafarers and the resilience of coastal communities.13 Marine pollution also has a dual effect as it affects the marine environment and weakens the potential for economic development of the polluted areas. 2.2

Maritime Security in State Practice

In addition to understanding of the semantics and the identification of threats to maritime security, it is important to understand what states actually do in order to achieve maritime security.14 The activity and practice of states in response to maritime security constitutes an essential element of the conceptualization of maritime security and a prerequisite for a discussion of whether these activities can be accommodated or hindered by LOSC. The term ‘maritime security’ entered the oceans governance debate in October 2005 when the US made a breakthrough by publishing the first national strategy for maritime security.15 The US strategy does not define maritime security. Its drafters, however, explained that maritime security should be understood to be ‘required to ensure freedom of the seas; facilitate freedom of navigation and commerce; advance prosperity and freedom; and protect the resources of the ocean’.16 The US strategy identifies terrorism as a major threat to maritime security because it has increased ‘the nature of the nonmilitary, transnational, and asymmetric threats in the maritime domain’.17 According to the US strategy, maritime terrorism can be manifested in attacks against vessels, ports and maritime installations, the use of shipping for the planning

Ibid, 9. Bueger (n 9) 160–161. 13 S Galani, ‘Somali Piracy and the Human Rights of Seafarers’ (2016) 1 NQHR 71; Jason P Abbott and Neil Renwick, ‘Pirates? Maritime Piracy and Societal Security in Southeast Asia’ (1999) 11 Pacifica Review: Peace, Security & Global Change 4. 14 Bueger (n 9) 162–163. 15 US National Strategy for Maritime Security (n 3). 16 Ibid, 2. 17 Ibid, 3. 11 12

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or funding of terrorism activities, and the transfer of WMDs.18 Although the threat of maritime terrorism has not fully materialized yet, the US national strategy was heavily influenced by the 9/11 attacks, which succeeded in sabotaging the safety of air carriers, and the bombing of USS Cole, an American guided missile destroyer, while in the port of Aden in Yemen.19 Other threats identified in the strategy concern inter-state conflicts, piracy, illegal seaborne immigration and environmental degradation.20 In response to these threats, the US strategy urged states to enhance inter-state cooperation, increase maritime domain awareness (MDA), embed security into commercial practices, develop public and private security mechanisms and assure the continuity of the maritime transportation system.21 The US approach to maritime security shows that while some of the threats identified are included in LOSC, such as piracy and environmental degradation, the US has completely shifted its efforts towards new tools and mechanisms not found in LOSC such as MDA policies, urging states to think outside the LOSC framework for new ways to secure the oceans. This reaction of states has been accelerated by the rise in Somali piracy. NATO published its Alliance Maritime Strategy in 2011 when the detrimental effects of uncontrollable pirate activities had started becoming evident.22 The challenges posed by the transnational criminal activities of pirates and terrorists as well as of weapons, drugs and human traffickers were also cited in the NATO strategy. In addition, the strategy was critical of merchant vessels using flags of convenience (FoCs), posing jurisdictional barriers to enforcement efforts.23 In response to these challenges, NATO emphasized the importance of its law enforcement operations in addition to its surveillance and information-sharing activities. The NATO strategy did not cite LOSC but noted that all their operations and activities must be in accordance with international law.24 However, most of their proposed responses towards enhancing maritime security, including crisis management and capacity building, are not addressed in LOSC, underlining the need to consider new responses to the emerging threats and new international tools to regulate these responses.

Ibid, 4–5. Two years later, the French oil tanker MV Limburg was also attacked while in the Arabian Sea. See J Henley and H Stewart, ‘Al-Qaida suspected in tanker explosion’ (The Guardian, 2002) available at https://​www​.theguardian​.com/​world/​2002/​oct/​07/​ alqaida​.france. 20 US National Strategy for Maritime Security (n 3) 4–6. 21 Ibid, 13–23. 22 NATO Alliance Maritime Strategy (18 March 2011) available at www​.nato​.int/​ cps/​ua/​natohq/​official​_texts​_75615​.htm. 23 Ibid, [6]. 24 Ibid, [15]. 18 19

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Three key regional actors, namely the European Union (EU), the African Union (AU) and the Association of Southeast Asian Nations (ASEAN), also acknowledged the importance of investing in maritime security by publishing their own maritime security strategies and plans. In its 2014 Maritime Security Strategy, the EU explained that maritime security ‘is understood as a state of affairs of the global maritime domain, in which international law and national law are enforced, freedom of navigation is guaranteed and citizens, infrastructure, transport, the environment and marine resources are protected’.25 It echoed the concerns of the US regarding inter-state disputes, maritime terrorism, proliferation of WMDs, piracy, illegal migration, environmental and man-made disasters, and identified illegal and unregulated archaeological research and pillage of archaeological objects as an additional threat to maritime security.26 The strategy also outlined a number of steps that the EU considers necessary to achieve maritime security. These include the strengthening of the EU External Action via maritime operations, bilateral agreements, international forums, etc.; the collection of maritime surveillance information that can increase maritime awareness; capacity building; risk management; crisis response and maritime security research.27 ASEAN is also committed to enhancing maritime security and has been regularly updating its work plans for maritime security driven by sovereignty disputes, cross-border crime, piracy and natural disasters in the region.28 Shared awareness, confidence-building measures based on international law, including LOSC, and capacity building are the priority areas identified by ASEAN that can serve as the primary guideposts for cooperative efforts towards achieving maritime security.29 The AU has carefully considered the wealth and opportunities the exploitation of the oceans can offer to African countries and has tried to develop a comprehensive approach to maritime security. In its 2050 Africa’s Integrated Maritime Strategy (2050 AIM Strategy), the AU listed all the previously mentioned threats to maritime security while adding illegal oil bunkering and crude oil theft as well as the lack of and poorly maintained navigational aids to the

25 Council of the European Union, European Union Maritime Security Strategy (11205/14) (24 June 2014) 2. 26 Ibid, 8. 27 Ibid, 8–15. 28 ASEAN Regional Forum Work Plan for Maritime Security 2018–2020 available at aseanregionalforum​.asean​.org/​wp​-content/​uploads/​2019/​01/​ANNEX​-3​-​.pdf 7. See also, 2015–2017 ASEAN Regional Forum Work Plan for Maritime Security (6 August 2015) available at cil​.nus​.edu​.sg/​wp​-content/​uploads/​2019/​02/​2015​-2017​-ARF​ -WP​-FOR​-MARITIME​-SECURITY​.pdf. 29 ASEAN Regional Forum Work Plan for Maritime Security 2018–2020, ibid, 3.

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list of vulnerabilities.30 The 2050 AIM Strategy put forward a comprehensive framework with a list of conventional and innovative measures needed to achieve maritime security in Africa, such as delineation of maritime boundaries, the establishment of a Combined Exclusive Maritime Zone of Africa (CEMZA), environmental monitoring, the creation of regional maritime operational centres and the development of further integrated strategies on maritime tourism and aquaculture.31 The vision of the AU to promote its blue economy agenda and enhance human security by achieving maritime security was further developed in the African Charter on Maritime Security, Safety and Development in Africa (the Lomé Charter).32 The Lomé Charter is a momentous document as it is the first legally binding agreement aimed at promoting the blue economy through the enhancement of maritime security.33 The first maritime security agreement, however, was pioneered by the Caribbean Community (CARICOM). Article 2 of CARICOM Maritime and Airspace Security Cooperation Agreement sets out the objectives of the agreement, which are to improve cooperation and the capacity of states in conducting law enforcement operations in relation to the prevention of drug trafficking, terrorist offences, smuggling, immigration, pollution, piracy, hijacking and other offences as well as to respond to threats to security as a result of natural and other disasters and to protect offshore installations.34 The agreement provides a comprehensive framework for how law enforcement operations should be conducted and how subsequent matters, such the disposition of seized property, should be dealt with. Despite the ambitions of the drafters, only two states have so far ratified the agreement, which means that it is not in force yet.35 The reading of the regional maritime security strategies and agreements leads to several conclusions relevant for an understanding of maritime security. First, states still define maritime security by identifying what threatens oceans. While certain threats feature in all the above-mentioned documents, others might be unique or more significant in certain regions, such as pillage of archaeological objects in European waters, oil theft in Africa and natural

30 African Union, 2050 Africa’s Integrated Maritime (AIM) Strategy (29 July 2013) 10–11 available at cggrps​.org/​wp​-content/​uploads/​2050​-AIM​-Strategy​_EN​.pdf. 31 Ibid, 15–26. 32 Lomé Charter (n 2). 33 E Egede, ‘Africa’s Lomé Charter on maritime security: What are the next steps?’ (2017) Piracy Studies, available at piracy​-studies​.org/​africas​-lome​-charter​-on​-maritime​ -security​-what​-are​-the​-next​-steps/​. 34 CARICOM Maritime and Airspace Security Cooperation Agreement, 4 July 2008, 1. 35 Ibid, Article 27.

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disasters in Southeast Asia and the Caribbean. It is therefore difficult to draw a comprehensive list of maritime security threats that could lead to a single definition of maritime security. The diverse maritime security threats also result in the adoption of different measures in response to these threats. The capacity of each regional actor also dictates what is considered needed to enhance maritime security. On the one hand, the EU mostly acts through its European External Action Service and ASEAN through its established forums. On the other hand, the AU tries to develop integrated responses at sea in a continent that still struggles to achieve peace and security on land.36 Some of the proposed measures and mechanisms of the regional actors, such as the law enforcement operations and cooperation mechanisms against piracy, are conventional and could fall within the LOSC provisions. However, most of the other initiatives found in the various mechanisms, such as capacity building and surveillance, might challenge the LOSC framework. The approach of the AU and CARICOM also shows that instead of relying on LOSC for solutions, states have started implementing distinct comprehensive mechanisms intended to achieve maritime security. All this reinforces the argument of this chapter that maritime security can only be understood as a blend of threats and activities by state and non-state actors rather than a concept that can have a single definition, and as a result the LOSC framework might no longer be suitable to address all of them. It is therefore time to turn to how LOSC understands maritime security and evaluate whether LOSC reflects the current concerns of states in relation to maritime security. 2.3

Maritime Security and LOSC

A first step to take in order to examine how LOSC understands maritime security is to conduct a textual analysis of the provisions that refer to security. This task is important because LOSC does not use the term ‘maritime security’ per se, and as a result it does not define it. It does, however, have scattered references to security that are worth a closer look. In the preamble, the drafters expressed their belief that the codification of the international law of the sea ‘will contribute to the strengthening of peace, security, cooperation and friendly relations among all nations’ and ‘will promote the economic and social advancement of all peoples of the world’. This, essentially, reflects the aim of LOSC to allow states to maximize the utilization of marine resources in a peaceful and regulated manner that can minimize inter-state disputes.

36 P Brits and M Nel, ‘African Maritime Security and the Lomé Charter: Reality or Dream?’ (2018) 27 African Security Review 2.

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Article 19(1) LOSC also refers to security by defining innocent passage as not being ‘prejudicial to the peace, good order or security of the coastal State’ and Article 19(2) LOSC provides a list of activities that can be prejudicial to peace, good order or security of a coastal state. Some of the activities mentioned in Article 19(2) LOSC, such as the use of force and military operations, are traditionally understood to threaten the security of a coastal state. In addition, it has been suggested that, by including marine pollution and illegal fishing as activities harmful to the security of a coastal state in Article 19 LOSC, ‘the LOSC permits a wider definition of “security” than what might be ordinarily inferred from the word alone’.37 This is further supported by the sole reference to security in Article 25 LOSC, which gives a coastal state the right ‘to suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security’. Another explicit reference to security can be found in Article 138 LOSC in relation to the conduct of states in the Area which shall be, inter alia, ‘in the interests of maintaining peace and security and promoting international cooperation and mutual understanding’. This reference to security reinforces the overarching aim of the convention mentioned above. LOSC further refers to the security of states in Article 302 permitting them not to disclose information that is against the interests of their security during the procedures for settlement of disputes set forth by the convention. Klein argues that ‘such an exclusion holds particular importance when it is recalled that the LOSC entails a compulsory dispute settlement system’.38 To better understand the importance attached to the security of states under this provision, one should also consider Article 298(1)(b), which permits states to reject the compulsory jurisdiction of the LOSC procedures with regard to military activities.39 Whereas Article 298(1) does not explicitly refer to security, military activities are traditionally understood to be closely interlinked with the notion of a state’s security. Several provisions of LOSC also refer to safety. Linguistically, the terms ‘security’ and ‘safety’ are different in English, but the same word is used for both terms in French (securité) and Spanish (seguridad).40 It therefore S Kaye, ‘Freedom of Navigation in a Post 9/11 World: Security and Creeping Jurisdiction’ in D Freestone, R Barnes and D Ong (eds), The Law of the Sea Progress and Prospects (OUP 2006) 349. 38 N Klein, ‘Maritime Security’ in D Rothwell, A Oude Elferink, K Scott and T Stephens (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 597. 39 For the criteria that define a military operation see Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures ITLOS, 25 May 2019. See also the discussion in Section 3.1. 40 The IMO has now distinguished between security and safety in French and Spanish, and several of its initiatives, including Chapter XI of the Safety of Life at Sea Convention (SOLAS Convention) and the ISPS Code, use distinct terms in 37

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becomes relevant to examine how the LOSC provisions understand safety, given that safety issues fall within the broader maritime security debate as suggested by the relevant literature and policies. LOSC deals with safety to a greater extent and in a more explicit manner than it does with security. Safety in LOSC encompasses the safety of navigation, the safety of human life, and the protection of the marine environment. For example, LOSC stipulates the rights and duties of states with regard to the safety of navigation, which is a prerequisite for both the safety of life at sea and the protection of the marine environment.41 The use of navigation and safety aids as well as safety zones is important for the regulation of maritime traffic, the prevention of collision of vessels or other accidents at sea that cause unintentional discharge of other pollution from vessels and the protection of persons at sea. Article 242 LOSC seeks to promote international cooperation in marine scientific research and the exchange of relevant information in order to prevent and control damage to the health and safety of persons and to the marine environment. The safety of human life is also discussed in Article 94 LOSC regarding the duties of flag states to ensure safety at sea and Article 98 LOSC concerning the duty of states to render assistance to any person found at sea in danger or in distress. Both provisions have a strong focus on the interests of humans at sea and have attracted the attention of human rights advocates who seek to rely on LOSC to safeguard the right to life at sea.42 Admittedly, LOSC was not meant to address issues relating to the protection of human rights at sea but the increasing human rights violations that occur in the maritime domain justify the interpretation that the duty of states to ensure safety at sea or render assistance to those in need is translated into their duty to protect the right to life at sea. These references to the human element in LOSC have been gradually integrated into the broader understanding of maritime security, with human security at sea reflecting one of its core dimensions.43 What can be deduced from the evaluation of the LOSC references to security and safety is that although LOSC does not expressly deal with maritime French (‘sûreté maritime’ as opposed to ‘securité maritime’) and Spanish (‘protección marítima’ as opposed to ‘seguridad marítima’) to refer to security and safety issues. See Klein (n 8) 8. See also the French version of LOSC available at www​.un​.org/​depts/​los/​ convention​_agreements/​texts/​LOSC/​LOSC​_f​.pdf. 41 LOSC, Articles 21, 22, 39, 42, 43, 60, 147, 194, 225. Articles 212 and 222 refer to the safety of air navigation. 42 I Papanicolopulu, International Law and the Protection of People at Sea (OUP 2018) 174–176. 43 Bueger (n 9) 161; Kriangsak Kittichaisaree, ‘A Code of Conduct for Human and Regional Security around the South China Sea’ (2010) 32 ODIL 133; S Galani, ‘Maritime Security and Human Rights: The Role of the EU and its Member States in the Protection of Human Rights in the Maritime Domain’ IJMCL, forthcoming.

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security, it does address maritime security in the context of other matters. LOSC also has express provisions concerning the duty of states to prevent slave trade (Article 99), repress piracy (Articles 100–107) and suppress drug trafficking (Article 108). Overall, LOSC contains provisions aimed at addressing traditional security threats arising from sovereignty inter-state disputes and military activities and non-traditional security threats, such as piracy, illegal fishing, marine pollution, marine safety, human security, and trafficking in drugs and humans. This shows that what LOSC perceives as a threat to the maritime domain does not differ much from the threats identified by states, although some threats, such as maritime terrorism or the proliferation of WMDs, fall outside the language of LOSC. What demands more attention, however, is whether the LOSC framework is adequate to address the increasing number of these security threats or to accommodate what states do in the name of maritime security. This takes us back to the central question of this collection: whether LOSC helps or hinders maritime security, and whether it is time to look beyond LOSC in order to secure our oceans. This is assessed in the next section.

3.

THE INTERPLAY BETWEEN MARITIME SECURITY AND LOSC

Given the rise in maritime security threats and the proliferation of maritime security initiatives by states and non-state actors, evaluating how each of them could fit within LOSC might prove an enormous task. This section will therefore evaluate how some of the most critical responses of states to maritime security have challenged key LOSC principles, urging us to reconsider the role of LOSC in achieving maritime security. 3.1

Law Enforcement Operations

Law enforcement is essential to enable states to maintain maritime security. The importance of law enforcement operations is reflected in all maritime strategies, which prioritize them as effective means to prevent and suppress illegal activities at sea. They include ‘surveillance, stopping and boarding vessels, search or inspection, reporting, arrest or seizure of persons and vessels, detention, and formal application of law by judicial or other process, including imposition of sanctions’.44 Guilfoyle has noted that ‘in an age of maritime security, actionable law enforcement [intelligence] is no longer an

44 WT Burke, The New International Law of Fisheries: LOSC 1982 and Beyond (Clarendon Press 1994) 303.

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issue for coastguards alone; it is increasingly an issue for navies as well’.45 This has made the distinction between law enforcement operations and military operations rather difficult, with the International Tribunal for the Law of the Sea (ITLOS) noting that ‘the traditional distinction between naval vessels and law enforcement vessels in terms of their roles has become considerably blurred’.46 According to the view of ITLOS, their distinction ‘must be based primarily on an objective evaluation of the nature of the activities in question, taking into account the relevant circumstances in each case’.47 The way ITLOS applied these criteria to the dispute between Ukraine and Russia concerning the detention of three Ukrainian naval vessels and 24 Ukrainian service members, however, has supported the conclusion that few operations can be classified as military in nature.48 This can have a tremendous impact on the judicial scrutiny that law enforcement operations can be subject to as only military operations can be exempted from compulsory inter-state proceedings under Article 298 LOSC. This means that states seeking to protect maritime security through law enforcement operations have to strictly comply with the rights and duties they have in the different maritime zones as determined by LOSC. Coastal states, for example, enjoy extensive sovereign rights over their territorial waters, which are comparable to the sovereign rights they enjoy on land. To enforce these rights and effectively address maritime security threats, they can take action against vessels ‘engaged in terrorism, transnational crimes (such as drug trafficking and people smuggling), intentional pollution, illegal fishing, and intelligence gathering’.49 The enforcement powers of coastal states decrease in the contiguous zone and the exclusive economic zone (EEZ). In the contiguous zone, Article 33 LOSC gives coastal states the power to exercise control for the prevention and punishment of infringement of its customs, fiscal, immigration or sanitary laws and regulations, while in the EEZ they can board, inspect, arrest and institute proceedings against vessels engaged in illegal fishing or in breach of pollution standards.50 While coastal states enjoy enforcement powers on a range of maritime security threats, their effective exercise might challenge navigational rights and freedom of navigation. These

D Guilfoyle, ‘Maritime Law Enforcement Operations and Intelligence in an Age of Maritime Security’ (2017) 93 Int’l Law Studies 299. 46 Case concerning the detention of three Ukrainian naval vessels (n 39) [64]. 47 Ibid, [66]. 48 J Kraska, ‘Did ITLOS Just Kill the Military Activities Exemption in Article 298?’ (2019) EJIL available at https://​www​.ejiltalk​.org/​did​-itlos​-just​-kill​-the​-military​ -activities​-exemption​-in​-Article​-298/​. 49 LOSC, Article 27. See also Klein (n 38) 586. 50 LOSC, Articles 73 and 220. 45

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hold an important place in LOSC as they have always been a prerequisite for military influence and international trade.51 Navigational rights are guaranteed in territorial seas and archipelagic waters where states can exercise their right of innocent passage and in international straits where they have the right of transit.52 Coastal states have an explicit right to ‘prevent passage which is not innocent’ or to even ‘suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises’, but this right is confined to activities prejudicial to security as outlined in Article 19 LOSC.53 On the other hand, states bordering straits shall not hamper or suspend transit passage, which emphasizes the importance of freedom of navigation in straits and limits enforcement powers for maritime security purposes.54 The freedom of navigation further limits the enforcement powers of coastal states in their EEZs where all states enjoy the freedom of navigation.55 LOSC has clearly outlined the enforcement powers of coastal states in the EEZ, which are mainly associated with fishing activities of foreign flagged vessels and the damage vessels can cause to natural resources and the marine environment, and is considered to have struck a fair balance between enforcement and navigational rights.56 However, with regard to maritime security threats not addressed by LOSC, such as the proliferation of WMDs or illegal bunkering, it is up to coastal states to show restraint and comply with the international law of the sea in the fight against maritime crime. This has proven difficult in practice, especially in cases where an illegal activity might threaten various security interests of the coastal state. Bunkering activities are such an example. ‘[B]unkering of foreign vessels engaged in fishing in the exclusive economic zone is an activity which may be regulated by the coastal State concerned’, but coastal states do not have such competence with regard to other bunkering activities, such as bunkering of yachts sailing in the EEZ.57 The latter has been found to fall outside the jurisdiction of coastal states and within the freedoms flag states enjoy on the high seas.58 As a result, taking enforcement 51 Y Tanaka, ‘Navigational Rights and Freedoms’ in Rothwell, Oude Elferink, Scott and Stephens (n 38) 536–537. 52 LOSC, Articles 19, 52, 38. 53 See also LOSC, Articles 25 and 52. 54 LOSC, Articles 25 and 52. 55 LOSC, Article 58. 56 MA Becker, ‘The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea’ (2005) 46 Harvard JIL 198; Klein (n 8) 97. 57 M/V ‘Virginia G’ (Panama/Guinea-Bissau), Judgment, ITLOS Reports 2014, 4, [223]. 58 The M/V ‘Norstar’ Case (Panama v Italy), Case No. 25, ITLOS, Judgment of 10 April 2019 [186]–[189].

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measures against a vessel engaged in bunkering activities in the EEZ might be tantamount to violating freedom of navigation, even if these activities threaten maritime security.59 On the high seas, coastal states do not have enforcement powers but have the right of hot pursuit, which recognizes the right of coastal states to protect their interests against ships which have violated their laws and regulations.60 Although it is not clarified which laws and regulations must be violated in order for the right of hot pursuit to be engaged, it is accepted that serious maritime crimes, such as illegal fishing, terrorist attacks and damage to the marine environment, trigger Article 111. The right of hot pursuit, however, comes with serious restrictions and the main reason is that it might encroach upon the exclusive jurisdiction of the flag state, especially if the ship suspected of violations has reached the high seas. This is because no state can claim sovereignty on the high seas and thus the role of enforcement is undertaken by flag states. Flag states have significant rights and duties under LOSC. Article 91 LOSC provides that a state can fix the conditions for the grant of its nationality to ships, which can then navigate freely on the high seas.61 As a counterpart, Article 94(1) imposes on flag states the duty to effectively exercise their jurisdiction and control in administrative, technical and social matters over ships flying their flag and Article 94(3) LOSC outlines the duties of flag states in terms of the construction, equipment and seaworthiness of ships, the manning of ships, labour conditions, the training of crews, the use of signals, the maintenance of communications and the prevention of collisions. Flag states have further enforcement powers under Article 217 LOSC, which details the measures they can take for the prevention, reduction and control of pollution of the marine environment from vessels that fly their flags. The according of nationality to vessels and the exercise of effective jurisdiction on board vessels by flag states are important tools against maritime crime.62 However, certain flag states set loose nationality conditions which result in dubious inspections or lack thereof for the sake of financial benefits to shipping companies that opt for lesser standards. The use of FoCs has been linked with the increasing numbers of illegal activities at sea, such as illegal fishing, marine pollution, the abuse of seafarers and proliferation of WMDs.63 Flag states with ineffective maritime administrations have been

LOSC, Articles 58 and 87. LOSC, Article 111. 61 See also LOSC, Article 90. 62 RR Churchill and AV Lowe, The Law of the Sea (3rd edn, Manchester University Press 1999) 179. 63 The Senate, Rural and Regional Affairs and Transport References Committee, Increasing use of so-called Flag of Convenience shipping in Australia (19 July 2017) available at https://​www​.aph​.gov​.au/​Parliamentary​_Business/​Committees/​ 59 60

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urged to enhance their legal procedures and enforcement capabilities and to suspend the registration of new vessels until such action is taken.64 However, these calls have often fallen on deaf ears and as a result states have decided to extend their law enforcement operations on the high seas in order to combat transnational maritime crime. One way of doing this was by introducing a number of international treaties and other initiatives aimed at maximizing the use of the right of visit. Article 110 LOSC gives states the power to take certain steps – to request that a vessel show its flag, search a vessel and arrest those on board – against foreign flagged vessels on the high seas suspected of piracy, slave trade, unauthorized broadcasting, being without nationality or not displaying their true flag. The provision refers to specific crimes but accepts that other acts of interference might be derived from powers conferred by other treaties.65 In the case of piracy, for example, the direct reference in Article 110 LOSC provides a legal basis for counter-piracy operations. Nevertheless, the increase in acts of armed robbery in territorial waters and straits has compelled states to look beyond LOSC for other legal measures, such as the UN Security Council Resolutions or bilateral agreements, to suppress piracy.66 Undoubtedly, counter-piracy operations can be a deterrent to piracy, but the interdiction of vessels in territorial waters or straits can be a major obstacle to the freedom of navigation. Since littoral states enjoy sovereign rights in their territorial waters under LOSC, their consent to these operations might mitigate the problem. It is questionable though whether the interdiction of vessels suspected of armed robbery can be sanctioned in straits where the freedom of navigation attains higher significance and, as a result, the enforcement powers of states bordering straits narrow down to issues relating to safety of navigation, pollution control, illegal fishing, customs, fiscal, immigration or sanitary laws and regulations of states bordering straits.67 The slave trade is also explicitly mentioned in Article 110 LOSC but the modern threat of human trafficking by sea has prompted states to adopt the 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the Convention against Transnational Organized Crime (2000

Senate/​ R ural ​ _ and ​ _ Regional ​ _ Affairs ​ _ and ​ _ Transport/​ F OCShipping45/​ R eport; AJ Marcopoulos, ‘Flags of Terror: An Argument for Rethinking Maritime Security Policy Regarding Flags of Convenience’ (2007–2008) 32 Tul. Mar. LJ 277. 64 Report of the Secretary-General, Oceans and the law of the sea (10 March 2008) (A/63/63) [122]. 65 LOSC, Article 110(1). 66 D Guilfoyle, ‘Piracy Off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts’ (2008) 57 ICLQ 698. 67 LOSC, Articles 42, 45(2) and 233.

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Migrant Protocol).68 Article 8 of the 2000 Migrant Protocol provides that a state party that has reasonable grounds to suspect a vessel exercising freedom of navigation of migrant smuggling can notify the flag state to request authorization for boarding and searching the vessel; and, if evidence of a smuggling offence is found, to take appropriate measures with respect to the vessel and persons and cargo on board. This provision again highlights the two key issues that law enforcement officials have to consider when fighting maritime crimes – the freedom of navigation and the exclusive flag state jurisdiction. While the provision empowers law enforcement agents to interfere with freedom of navigation in the event of a serious suspicion of an offence, the flag state is still to decide whether boarding or any other action against its vessel is needed. The exclusive flag state jurisdiction poses further hurdles to the efforts of states to fight against illicit drug trafficking by sea. Through Article 17 of the 1988 Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 Vienna Convention)69 states have sought to set up a procedure whereby a state may seek authorization – on an ad hoc basis or through prior arrangements between states – to board a vessel suspected of drug trafficking outside the territorial sea of any state. Article 17(3) of the 1988 Vienna Convention speaks explicitly of the rights of the flag state, which has to give prior authorization before maritime law enforcement officials can take any action against its ship.70 The commentary on the 1988 Vienna Convention explains that nothing in the Article was intended in any way to affect the rights of the flag State with regard to its vessel and there is no obligation on the flag State to provide the authorization requested; it is entirely within the discretion of that State to decide whether or not to allow another party to act against its vessel.71

Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 2241 UNTS 507. See also an evolutionary interpretation of slavery in response to the increase in migration: E Papastavridis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans (Hart 2013) 269–270. 69 UN Economic and Social Council (ECOSOC), United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 19 December 1988, 1582 UNTS 95. 70 W Gilmore, ‘Drug Trafficking at Sea: The Case of R. v. Charrington and Others’ (2000) 49 ICLQ 477. 71 Commentary on the 1988 Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances done at Vienna on 20 December 1988, 328–329. 68

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This requirement limits the effectiveness of the provision, and states have attempted to overcome it through other bilateral and multilateral agreements.72 Bilateral agreements are considered more effective as it is easier for two states to agree between them a specific consent procedure.73 The US, for example, has put in place ‘ship-rider’ arrangements whereby an official would be placed on board a US coastguard vessel and would authorize interdictions of any vessels flying the flag of his/her state. Despite the effectiveness of these arrangements, they give rise to concerns over the influence the US can exert over smaller countries in the Caribbean. To avoid this risk, the 2003 Caribbean Agreement brought together some of the features of the various bilateral agreements between the US and Caribbean states in a more comprehensive manner. One way or another, what becomes evident is that exclusive flag state jurisdiction is challenged by the manner in which states respond to evolving maritime security threats. In the context of illegal fishing, states also seem to take one step forward and two steps back when it comes to interfering with the exclusive flag state jurisdiction. This approach is reflected in the 1995 UN Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995 Fish Stocks Agreement), which sets out principles for the conservation and management of those fish stocks.74 Under Article 18 of the 1995 Fish Stocks Agreement, flag states remain responsible for authorizing fishing on the high seas and enforcing the conservation and management measures.75 As a counterpart, third-state parties to the 1995 Fish Stocks Agreement can visit and inspect vessels suspected of illegal fishing. This seems to be a step towards limiting the powers of the flag state. However, the inspecting officials are required to give notice to the flag state and if they have serious grounds for believing that a serious offence has been committed, they must notify the flag state before any further

72 Agreement on Illicit Traffic by Sea, Implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1995) 2136 UNTS 81; Agreement Concerning Co-operation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area (2003). 73 Klein (n 8) 136. 74 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 UNTS 3. 75 D Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press (CUP) 2009) 103–104.

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action is taken other than the collection of evidence.76 Article 21(7) and (12) of the 1995 Fish Stocks Agreement confirms that the enforcement powers of the flag state take precedence over those of the inspecting state, rendering the provisions ineffective where flag states do not comply with the conservation and management measures. Maritime terrorism and proliferation of WMDs are not addressed in LOSC. States have therefore come up with new mechanisms to address these threats. Their non-inclusion in LOSC, however, does not mean that they are immune to the LOSC principles. This is evidenced by the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (2005 SUA Protocol),77 which, although it established a boarding procedure for vessels suspected of terrorism-related offences, still pays heed ‘to the pre-eminence of the flag state in its authority over vessels on the high seas’.78 The consent required for ship boarding has ultimately meant that its effectiveness largely depends on the willingness of flag states to suppress terrorism-related activities on board their vessels. To counter this weakness, it has been suggested that a new treaty is necessary for terrorism-related activities in territorial seas, straits, and archipelagic waters, signalling a further departure from the LOSC framework in search of effective means to achieve maritime security.79 To an extent, the US has sought support to do so through the Proliferation Security Initiative (PSI).80 The PSI is a political agreement rather than a binding treaty that aims to prevent the proliferation of WMDs and is intended to target state and non-state actors. In doing so, the participant states commit to boarding and searching their own vessels and vessels flying the flag of another participant state if there are serious suspicions of them carrying WMDs. On the high seas, the PSI states cannot board or search a foreign flagged vessel of a non-participant state without consent. While this restriction limits the effectiveness of the PSI, it was no doubt a necessary caveat to make PSI compatible with the international law of the sea. Despite the existing concerns, it is hard to accept that the PSI breaches established LOSC principles. In contrast, the increasing number of states joining PSI points towards an

Ibid, 105–108. International Maritime Organization (IMO), Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 14 October 2005, LEG/CONF.15/21. 78 Klein (n 8) 178. 79 RC Beckman, ‘Terrorism, Maritime Security and Law of the Sea: Challenges and Prospects’ (2003) Singapore Maritime and Port J 114. 80 RC Beckman, ‘International Responses to Combat Maritime Terrorism’ in VV Ramraj, M Hor and K Roach (eds), Global Anti-Terrorism Law and Policy (CUP 2005) 255–260. 76 77

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emerging acknowledgement of the need to reconsider the exclusive flag state jurisdiction and freedom of navigation in the name of maritime security.81 3.2

Maritime Domain Awareness and Information Sharing

Collecting and disseminating information about the oceans and the users of the oceans and their activities has emerged as a critical element to protecting maritime security. All the maritime security strategies refer to the importance of collecting information and putting in place the right information centres, agents or other mechanisms to enhance the processing and dissemination of this information among states and the shipping industry. It is questionable though whether such activities and the roles undertaken by state and non-state actors easily fit within LOSC. First and foremost, it is important to understand what MDA means. The MDA policy was discussed in the US Maritime Security Strategy and, a month later, was detailed in the US National Plan to Achieve Maritime Domain Awareness.82 This defined MDA as ‘the effective understanding of anything associated with the maritime domain that could impact the security, safety, economy, or environment of the United States’.83 It was noted that MDA is required to support maritime security as it gives states ‘the ability to know, so that preemptive or interdiction actions may be taken as early as possible’.84 It is important to note that the MDA policy concerns the collection and sharing of information regarding non-nation threats, such as maritime terrorism, proliferation of WMDs, piracy, and environmental and other transnational crimes.85 This is essentially what distinguishes MDA from the other forms of intelligence-gathering activities directly addressed by LOSC. LOSC deals with marine scientific research, survey activities and hydrographic surveys, although none of them is clearly defined. These surveys are allowed under LOSC except where vessels exercise their right of innocent passage or transit. In these cases, the conduct of surveys could prejudice the security of the coastal state (Article 19) and would not be incidental to the normal mode of Proliferation Security Initiative, Endorsing States List (2 April 2019) available at https://​www​.psi​-online​.info/​psi​-info​-en/​botschaft/​-/​2205942. 82 US National Plan to Achieve Maritime Domain Awareness for the National Strategy for Maritime Security (October 2005) ii available at https://​www​.dhs​.gov/​ sites/​default/​files/​publications/​HSPD​_MDAPlan​_0​.pdf. 83 Ibid, ii. This definition has been endorsed by the IMO in MSC.1/Circ. 1415, Amendments to the International Aeronautical and Maritime Search and Rescue (IAMSAR) Manual 11 (May 25, 2012) http://​www​.mardep​.gov​.hk/​en/​msnote/​pdf/​ msin1242anx1​.pdf. 84 Ibid, 1. 85 Ibid, 5. 81

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continuous and expeditious transit (Article 39). Assimilating MDA to marine scientific research and hydrographic surveys could legitimize them under LOSC. However, it is difficult to argue that the elements or goals of the MDA policy could match either those of marine scientific research, which is conducted ‘for the purposes of scientific research’,86 or of hydrographic surveys, which are intended to ensure the safety of navigation.87 MDA could potentially overlap with military surveys but their purposes also seem to be distinct. Military surveys are not directly addressed by LOSC but have been closely scrutinized in order to evaluate whether they can be accommodated or outlawed by LOSC. Military surveys ‘refer to activities undertaken in the ocean and coastal waters involving marine data collection (whether or not classified) for military purposes, and can include oceanographic, marine geological, geophysical, chemical, biological and acoustic data’.88 The military purposes are nothing else but the defence of national security and the gain of military advantage. This immediately makes their conduct illegal within the territorial waters of a coastal state, but nothing in LOSC seems to ban them in the EEZ. In contrast, it has been argued that the reference in Article 58 LOSC to ‘other internationally lawful uses of the sea’ that states enjoy on the high seas under Article 87 could include military surveys.89 If one classifies the MDA policy as a military survey, this means that it will be allowed only on the high seas and possibly in the EEZ, without excluding the potential for causing inter-state disputes. Limiting the collection and dissemination of information on illegal activities by non-state actors at sea significantly limits the potential of states to tackle maritime security threats. This means that MDA should be distinguished from military surveys, although this results in the MDA policy falling beyond LOSC. This might have further unwanted repercussions, as the development of the MDA policy might clash with some of the features of LOSC. One example is the development of maritime security zones for the purposes of monitoring illegal activities at sea. In 2014, Australia declared the establishment of the Australian ‘Maritime Identification Zone’ (MIZ), which extends 1,000 nautical miles from Australia’s coastline. The purpose of this zone was to enhance maritime security by enabling the Australian naval forces to collect

86 Whaling in the Antarctic (Australia v Japan; New Zealand intervening), ICJ, Judgment, General List No 148 (31 March 2014) [87]–[97]. 87 S Bateman, ‘Hydrographic Surveying in the EEZ: Differences and Overlaps with Marine Scientific Research’ (2005) 59 Marine Pol’y 167–168. 88 JA Roach and RW Smith, ‘Excessive Maritime Claims’ (1994) 66 Int’l Law Studies 248. 89 M Hayashi, ‘Military and Intelligence Gathering Activities in the EEZ: Definition of Key Terms’ (2005) 59 Marine Pol’y 123–126, 130.

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information about vessels and their crews, passengers and cargoes seeking to enter Australian ports. Although one could accept the valuable contribution of the MIZ to pre-empting maritime security threats, its declaration challenges the zonal approach of LOSC and interferes with the maritime zones of neighbouring states.90 It is also in stark contrast to the freedom of navigation states enjoy on the high seas.91 Even if MDA policies do not conflict with LOSC provisions, addressing them under LOSC will inevitably give rise to legal loopholes. The development of a successful global maritime network able to gather and exchange information demands effective cooperation among public, private and commercial stakeholders. LOSC, however, is aimed at regulating the activities of states rather than of non-state actors. This means that the activities of private and commercial institutions will have to be regulated not only in order to ensure that the MDA initiatives are effective, but also because it is vital that their intelligence gathering and dissemination activities do not violate the international law of the sea. One such example is the effort of the International Maritime Organization (IMO) to regulate the use of the vessel monitoring systems (VMS). VMS were first used by some shipping companies that sought to monitor the activities of their vessels in order to avoid marine accidents and vessel-sourced pollution. Their use, however, has expanded to include the monitoring of illegal fishing and surveillance of other maritime activities. To avoid their misuse and potential interference with sensitive government and commercial information, the IMO introduced the Automatic Identification System (AIS) and Long-Range Identification and Tracking (LRIT) system under SOLAS.92 Both systems are aimed at monitoring vessel traffic through collecting information about vessels, their position and crews, etc. for the purposes of security. Despite their shortcomings, they both reflect the importance of enhancing MDA in a clearly regulated manner, the achievement of which requires us to look beyond LOSC.

4.

THE EVER-CHANGING LANDSCAPE OF MARITIME SECURITY

The analysis of law enforcement operations and MDA policies can only give a taste of the blend of threats and activities that synthesize the existing maritime security debate and challenge the LOSC framework. The contributors

90 N Klein, ‘Legal Implications of Australia’s Maritime Identification System’ (2005) 55 ICLQ 361–362. 91 Ibid, 342–352. 92 Guilfoyle (n 45) 306–309.

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to this collection will engage with several other threats and state responses to maritime security, some of which are not addressed or are only partially addressed by LOSC. Their discussions will reinforce the argument of this collection that LOSC – as a ‘living instrument’ – can accommodate some of the emerging maritime security threats and policies while others will inevitably fall beyond the LOSC framework, signalling a need for new responses. They will further show that, in spite of the innovative approaches and measures adopted by states, LOSC still circumscribes how far they can go in the name of maritime security. Bueger and Edmunds will discuss, among other things, the development of the new maritime security agenda, while emphasizing that maritime security studies need to pay greater attention to the interconnectivity of different threats and issues, to novel forms of governance and order at sea, and to the dissemination of the new maritime security agenda through capacity building. Their contribution will also highlight that the emerging maritime security agenda not only challenges the international law of the sea, but also wider discussions in international relations and security studies. Illegal fishing and disputes over marine resources hold an important place in the maritime security debate and will also be discussed in this volume. Barnes and Rosello will deal with the security threats posed by illegal fishing. Their evaluation of the LOSC framework will show that the latter indirectly acknowledges the impact of the regulation of fisheries on maritime security, but they will argue that fisheries governance is also interconnected with food security, human security and inter-state disputes. As a result, they will suggest that a new approach that combines some context sensitivity and awareness of cause and effect between fisheries and security is needed to address the destabilizing effect poor or ineffective regulation and management of fisheries have on maritime security. Roeben will discuss further challenges arising from high-end inter-state disputes concerning control of natural resources. He will argue that there is a new, although incomplete, trend to shift from a subjective to an objective grammar in the legal argumentation put forward by states in inter-state disputes, which could make it easier to resolve high-end disputes by enhancing inter-state cooperation. One of the most topical issues in the maritime security debate concerns the ‘robotic revolution’ and its interplay with LOSC. The use of unmanned systems both by non-state actors and navies will therefore attract special attention in this collection. Petrig will evaluate the use of unmanned systems, which allows criminals to commit maritime offences from afar, challenging several LOSC provisions that require human involvement for the commitment of an offence. Petrig will conclude that it is difficult for LOSC to keep up with the ‘robotics revolution’. This conclusion will be echoed by Chadwick, who will examine the use of unmanned systems by navies in response to maritime secu-

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rity threats. Chadwick will argue that it is difficult to fit all features and uses of unmanned systems under LOSC and greater clarity is needed as we currently run the risk of these new technologies operating in a grey zone. Chadwick’s discussion on law enforcement operations and emerging maritime security threats will be complemented by Murdoch, who will deal with the risks posed to maritime security by ships without nationality. Murdoch will acknowledge that the LOSC framework does not expressly deal with the assertion of jurisdiction over ships without nationality, but he will argue that it provides a sufficiently accommodating framework for states to address maritime security threats posed by such ships. The proliferation of state-led initiatives to tackle maritime security threats that LOSC cannot adequately address will be discussed in the last two contributions to this volume, reinforcing the idea that it is time that we accepted that LOSC cannot be a cure for all the evils in the maritime domain. Kopela will review the role that port states have been asked to play in securing the oceans. In her contribution, she explains how the ineffectiveness of flag states’ enforcement of international standards on the high seas has led to the adoption of new IMO- and state-led initiatives intended to enhance ship and port security. Arguably, these initiatives have increased the powers of port states deviating from LOSC, but their effectiveness still depends on flag state compliance. Zou will also discuss a range of state-led initiatives adopted by countries in Southeast Asia to address both traditional and non-traditional maritime security threats, such as inter-state disputes, the safety of navigation and piracy. He will also argue that some security issues in the South China Sea cannot be adequately addressed by LOSC, pressing for the adoption of new measures.

5. CONCLUSION Maritime security is a rapidly evolving and dynamic area of the law of the sea, but it cannot develop independently. There is a strong interplay between maritime security and LOSC which is evidenced in two ways. First, several maritime security threats are addressed directly or indirectly by LOSC, which therefore dictates what states can and cannot do to tackle them. In cases where LOSC does not provide effective solutions to these threats, or in cases where it does not refer to certain threats at all, states have come up with their own solutions. The last few years have witnessed the development of an unprecedented number of hard and soft law initiatives aimed at enhancing maritime security. States have acknowledged that LOSC – the ‘Constitution of the Oceans’ – only provides a limited range of solutions to the emerging issues raised and that the emerging threats and activities at sea require more innovative responses. These responses, however, have to be in accordance with LOSC. It is at exactly this point that frictions arise between maritime security policies and LOSC.

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Certain crucial components of the traditional law of the sea, such as freedom of navigation, flag state jurisdiction and the zonal approach, limit the responses of states, which in turn try to find new ways to overcome these limitations. As a result, it is time to accept that maritime security is a blend of ever-changing threats and activities which represents a new paradigm that cannot easily fit within the resource-oriented LOSC structure. This means that it ought to be accepted that LOSC can help tackle maritime security threats only to a limited extent, and that new threats and activities inevitably require new conceptual and conventional structures, as already evidenced by state practice.

2

Beyond seablindness: a new agenda for maritime security studies1 Christian Bueger and Timothy Edmunds

1. INTRODUCTION Maritime security is one of the latest additions to the vocabulary of international security. Initially coined in the 1990s, the concept has received growing attention due to the intensification of concerns over maritime terrorism since 2000, the rise of modern piracy off the coast of Somalia and elsewhere, maritime crimes such as human trafficking, and the increasing significance in recent years of the so-called ‘blue economy’ and issues relating to maritime environmental protection and resource management. A significant number of states and other international actors place maritime security high on their security agendas. This priority is reflected in several governmental and intergovernmental strategies for maritime security published in the past decade – including those of the United States, the United Kingdom, France, India, NATO, the European Union (EU) and the African Union (AU) – as well as in multilateral statements such as the G7 Declaration on Maritime Security, and in the work of the annual international Our Ocean conference on the theme. As Chapter 1 of this volume has suggested, the rise of the maritime security agenda is also representative of a series of wider challenges to the United Nations Convention on the Law of the Sea (UNLOS). If maritime security has become a core concern among major global security actors, the same cannot be said of international relations (IR) and security studies more widely, where its study is scattered at best. Existing literature 1 This chapter was originally published as C Beuger and T Edmunds, ‘Beyond Seablindness: A New Agenda for Maritime Security Studies’ (2017) 93(6) International Affairs 1293. Research for this chapter has benefitted from grants from the British Academy [GF16007], Economic and Social Research Council [ES/K008358/1] and European Union Horizon 2020 programme [award no. 653227]. For discussions, comments and suggestions that have improved this chapter we are grateful to Alena Drieschova, Filip Ejdus, Robert McCabe, Marcus Houben, Ana Juncos, Barry Ryan, Amaha Senu, Jan Stockbruegger, and the anonymous reviewers of IA.

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tends to consider such issues in terms of particular geographic hot spots and the management of specific threats, such as maritime piracy in East Africa, strategic rivalry in the South China Sea or the Arctic, organized crime in West Africa or human trafficking in the Mediterranean.2 Issues such as port security, illegal fishing or environmental crime have received less attention, and the connections between all these themes remain underexplored. Other literatures subordinate developments at sea to wider themes in IR, such as Great Power politics, geostrategy or international regime-building.3 The rise of the maritime security agenda has been reflected in a renewed interest among maritime scholars in the question of order at sea in an age of globalization,4 and in its increasing significance in national strategic, policy and doctrinal publications. Less attention has been paid to the maritime arena as a crucible of international change and innovation in and of itself. This is an important oversight and one that risks obscuring specific and novel patterns of international interaction, governance and political order at sea. This chapter argues that the maritime security initiatives and activities that have been observable throughout the past decade call for a more substantial treatment of the matter in the academic discussion. It is time for the discipline to pay more attention to the maritime arena and move beyond seablindness. The objective of this chapter is accordingly to summarize some of the core observations that can be made with regard to these developments and activities at sea and outline the ways in which these require more focused research. Our goal is twofold: first, to give some order to current developments so as to provide direction and foundations for further maritime security studies; second, to explore the fascinating challenges raised by maritime security phenomena in wider discussions within IR and security studies. Our discussion is structured in three main sections, each of which outlines a core dimension of maritime security. We begin with a consideration of the

2 See e.g. FK Chang, ‘China’s Naval Rise and the South China Sea: An Operational Assessment’ (2012) 56(2) Orbis 19; MN Murphy, Small Boats, Weak States, Dirty Money: Piracy and Maritime Terrorism in the Modern World (Columbia University Press 2009); S Percy, ‘Maritime Crime and Naval Response’ (2016) 58(3) Survival 155. 3 See e.g. JS Levy and WR Thompson, ‘Balancing on Land and at Sea: Do States Ally against the Leading Global Power?’ (2010) 35(1) International Security 7; BR Posen, ‘Command of the Commons: The Military Foundations of US Hegemony’ (2003) 28(1) International Security 5. 4 See e.g. JI Bekkevold and G Till (eds), International Order at Sea: How It Is Challenged, How It Is Maintained (Palgrave Macmillan 2016); D Moran and JA Russell (eds), Maritime Strategy and Global Order: Markets, Resources, Security (Elliott & Thompson 2014); SJ Tangredi (ed.), Globalization and Maritime Power (National Defense University Press 2002).

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issues and themes that comprise the maritime security agenda. This includes the manner in which it has been theorized in security studies to date, as well as its growing prominence in security policy thinking and documentation. Second, we examine the ways in which maritime security actors have responded to these challenges in practice, focusing on issues of maritime domain awareness, coordination of action and operations in the field. While we aim at providing a broad overview, many of our examples stem from the western Indian Ocean, in relation to which paradigmatic observations can be made. Third, we turn to the mechanisms through which the new maritime security agenda is being disseminated to local actors through a process of devolved security governance. We focus particularly on efforts to distribute knowledge and skills to local actors through capacity-building and security sector reform (SSR). In the concluding section we outline the future challenges for maritime security studies that follow from these observations. We argue that in addition to the traditional concerns of studies of sea power and the legal structures governing the sea, maritime security studies need to pay greater attention to the interconnectivity of different threats and issues, to novel forms of governance and order at sea, and to the dissemination of the new maritime security agenda through capacity-building.

2.

THE RISE OF MARITIME SECURITY

Throughout human history the sea has been viewed as a zone of danger and insecurity. As the historian John Mack argues, the seas have recurrently been presented as an ‘unwelcome and unwelcoming wilderness where the land is a reassuring point of reference’.5 Mack suggests that human history can be read as an attempt to master the sea. Yet, in reviewing the literature, he finds that the vast majority of historical and political analyses portray the seas ‘either as the backdrop to the stage on which the real action is seen to take place – that is, land – or … simply as means of connection between activities taking place at coasts and in their interiors’.6 His diagnosis also appears accurate for much of the existing discussion in IR and security studies. The sea tends to be understood as the stage for geopolitical power projection, interstate warfare or militarized disputes, as a source of specific threats such as piracy, or as a connector between states that enables various phenomena from colonialism to globalization.7

7 5 6

J Mack, The Sea: A Cultural History (Reaktion 2011) 74. Ibid, 19. PE Steinberg, The Social Construction of the Ocean (CUP 2001).

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2.1

Theorizing Security at Sea

In the main, security at sea has been theorized and interpreted from rather conservative viewpoints based in traditional realist or liberalist theory. More recent theoretical developments, such as constructivist thinking or critical security studies, have hardly influenced the debate. In the realist interpretation, the seas are the plain on which superpower or regional power rivalry takes place. Recent discussions have focused on the rise of China as a naval power and the US–Asian ‘pivot’, the investments in naval capabilities of emerging powers, or resource competition in the Arctic.8 This research has been driven forward primarily by scholars of sea power. Generally understood as a sub-branch of strategic studies, this field has long been concerned with questions of international interaction, influence and order at sea.9 Such work has been located primarily in classical realist and geopolitical frameworks of IR, with an emphasis on historical analysis, the distribution of hard naval power and military competition.10 In consequence, this scholarship has tended to prioritize what Bekkevold and Till call ‘top-down’ or structural influences on international order at sea, including ‘global power shifts, changing threat perceptions, naval modernization, and changes in naval capabilities and enforcement of the Law of the Sea’.11 It has paid less attention to the ‘bottom-up’ influence of maritime disorder on international order at sea and the forms of interaction, cooperation and conflict that emerge from such disorder. Liberal interpretations of security at sea foreground the rise of various international regimes governing activities at sea and suggest that the marine environment is increasingly subject to a form of collective public order and legal regulation. Liberal perspectives have been advanced, in particular, in the work of maritime legal scholars.12 Kraska and Pedrozo, for instance, suggest that in recent years international law has ‘evolved from a set of rules designed M Blunden, ‘The New Problem of Arctic Stability’ (2009) 25(5) Survival 142; Chang (n 2); C Le Miere, ‘The Return of Gunboat Diplomacy’ (2011) 53(5) Survival 53. 9 See e.g. K Booth, Navies and Foreign Policy (Croom Helm 1977); E Grove, The Future of Sea Power (Routledge 1990); AT Mahan, The Influence of Sea Power upon History, 1660–1783 (Samson Low, Marston 1890); I Speller, Understanding Naval Warfare (Routledge 2014); G Till, Seapower: A Guide for the Twenty-First Century (Frank Cass 2004). 10 Till (n 9) 335. 11 JI Bekkevold and G Till, ‘International Order at Sea: What It Is. How It Is Challenged. How It Is Maintained’ in Bekkevold and Till (eds) (n 4) 7. 12 See e.g. A Petrig and R Geiß, Piracy and Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (OUP 2011). 8

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to avoid naval warfare by keeping maritime powers apart, toward a new global framework designed to facilitate maritime security cooperation by bringing countries together to reach common goals’.13 Even so, such work has tended to focus on issues of technical regulation and formal international law, rather than on maritime security governance more widely defined. Indeed, we concur with Ian Speller that ‘the maintenance of good order at sea has not traditionally been subject to theoretical analysis in the same way as wartime activity or even diplomatic roles’.14 Certainly, newer security theorizing as it has been developed by constructivists since the 1990s and in critical security studies, for example in the form of securitization theory or the security as practice approach, has, with few exceptions, hardly influenced the debate on security at sea.15 As we shall elaborate further below, understanding the contemporary maritime security agenda requires that such considerations be incorporated in the analysis. The concept of maritime security as a distinct subset of security thinking – including but not confined to existing themes of sea power and maritime law – is a relatively recent creation. In many ways, the study of the seas has lagged considerably behind developments in mainstream security studies. The latter discipline’s traditional focus on states, armed forces and war has been commonly ‘broadened’ and ‘deepened’ to incorporate a much wider set of security issues, domains and activities, since the early 1990s at least. These have included so-called ‘new’ security issues such as terrorism, transnational organized crime or environmental degradation, affecting a diverse range of actors including but not limited to the state, and have been characterized by multisectoral responses such as the increasing tendency to link security with development.16

13 J Kraska and R Pedrozo, International Maritime Security Law (Martinus Nijhoff 2014) 10. 14 Speller (n 9) 150. 15 Exceptions include BJ Ryan, ‘Security Spheres: A Phenomenology of Maritime Spatial Practices’ (2015) 46(6) Security Dialogue 568; JA Malcolm, ‘Responding to International Terrorism: The Securitisation of the United Kingdom’s Ports’ (2016) 18(2) British Journal of Politics and International Relations 443; L Lobo-Guerrero, ‘“Pirates”, Stewards, and the Securitization of Global Circulation’ (2008) 2(3) International Political Sociology 219. 16 B Buzan, O Waever and J de Wilde, Security: A New Framework for Analysis (Lynne Rienner 1998); M Duffield, Global Governance and New Wars: The Merging of Development and Security (Zed Books 2001).

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2.2

The Path to Maritime Security

A short reconstruction of the rise of maritime security emphasizes how important these additional dimensions are. Expanded notions of security began to gain substantive intellectual and policy traction in the maritime sphere around the turn of the millennium. Of particular significance was the 1998 report of the Independent World Commission on the Oceans (IWCO). Published to coincide with the UN’s International Year of the Oceans, this considered a range of military and non-military threats to international order at sea, as well as the manner in which maritime security governance should be reconfigured to address them.17 This process gathered further momentum in the wake of the attack on the USS Cole in the port of Aden by an extremist group in 2000 and the attacks of 11 September 2001, after which the United States began to focus significant attention on the maritime dimension of national and homeland security. The US government published a National Strategy for Maritime Security (NSMS) in 2005, accompanied by eight supporting plans to address ‘the specific threats and challenges of the maritime environment’.18 The NSMS was one of the first documents of its kind to explicitly conceive of the maritime sphere as a differentiated security complex in its own right. The strategy placed a considerable emphasis on maritime vulnerabilities to terrorism, including the prospect of terrorist attack either at or from sea, and the challenges of securing ports and coastal areas from the incursion of terrorist materials, including, potentially, weapons of mass destruction (WMD). However, like the IWCO report, it also identified a series of wider maritime security challenges. These included the threat of piracy, the illegal exploitation of maritime resources, smuggling and criminality, and other threats to the free movement of seaborne trade.19 The NSMS was followed by a series of developments in US strategy that placed good order at sea at the heart of the country’s naval thinking. For example, the ‘1000 Ship Navy’ concept of 2005–2006 began with a recognition that the challenges of maritime security were too complex and diffuse for the United States to handle on its own. Instead, it envisaged what Peter Haynes has called ‘a self-organizing, self-governing, come-as-you-are cooperative global maritime security network that coordinate[s] the activities of volunteer nations’ navies, coastguards and constabulary units’.20 This notion was con IWCO, The Ocean Our Future (CUP 1998) 17. US Government, The National Strategy for Maritime Security (2005) available at https://​www​.hsdl​.org/​?view​&​did​=​456414. 19 Ibid, 3–6. 20 PD Haynes, Toward a New Maritime Strategy: American Naval Thinking in the Post-Cold War Era (Naval Institute Press 2015) 197. 17 18

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troversial at the time and ultimately stymied by suspicion of US motives on the part of some potential partner states and controversy within the US Navy itself. However, it did point to several important future trends, including the difficulties faced by a single state – no matter how powerful – in managing a diffuse and complex maritime security environment, and the need for cooperative relations with others in areas of shared interest. It was also indicative of a broader and more expansive understanding of sea power on the part of the United States. As Admiral Michael Mullen, Chief of Naval Operations for the US Navy, noted in 2006: ‘It is time to elevate the discussion of sea power. For far too long and in far too many ways, it has been about big-ship battles and high tech weapons systems. Life is just not that simple anymore … we face entirely new challenges.’21 In the wake of US efforts, a number of similar strategies have been adopted by other nations and international organizations. Of these, the most notable are NATO’s Alliance Maritime Strategy (2011), the UK National Strategy for Maritime Security (2014), the EU Maritime Security Strategy (also 2014), the French National Strategy for the Security of Maritime Areas (2015) and the G7 Declaration on Maritime Security (also 2015). The AU concluded the negotiations on its 2050 Africa’s Integrated Maritime (AIM) Strategy in 2014, following up with a Charter on Maritime Security, Safety and Development in 2016.22 In common with the US strategy, these approaches are distinguished by their breadth and ambition. They endeavour to connect different maritime threats and risks, and aim to offer a comprehensive or holistic account of the challenges to be faced at sea. Thus the EU Maritime Security Strategy concep Ibid, 201 (Admiral Michael Mullen). NATO, Alliance Maritime Security Strategy (2011) available at https://​www​ .nato​.int/​cps/​ua/​natohq/​official​_texts​_75615​.htm; HM Government, National Strategy for Maritime Security (2014) available at https://​assets​.publishing​.service​.gov​.uk/​ government/​uploads/​system/​uploads/​attachment​_data/​file/​322813/​20140623​-40221​ _national​-maritime​-strat​-Cm​_8829​_accessible​.pdf; Council of the European Union, European Union Maritime Security Strategy (11205/14, 24 June 2014) available at http://​register​.consilium​.europa​.eu/​doc/​srv​?l​=​EN​&​f​=​ST​%2011205​%202014​ %20INIT; République Française, National Strategy for the Security of Maritime Areas (2015) available at https://​www​.gouvernement​.fr/​sites/​default/​files/​contenu/​piece​ -jointe/​2016/​01/​strategie​_nationale​_de​_surete​_des​_espaces​_maritimes​_en​_national​ _strategy​_for​_the​_security​_of​_maritime​_areas​.pdf; G7, G7 Foreign Ministers’ Declaration on Maritime Security (15 April 2015) available at https://​www​.mofa​.go​ .jp/​files/​000076378​.pdf; African Union, 2050 Africa’s Integrated Maritime Strategy (2012) available at https://​cggrps​.com/​wp​-content/​uploads/​2050​-AIM​-Strategy​_EN​ .pdf; African Union, African Charter on Maritime Security and Safety and Development in Africa (Lomé Charter) (15 October 2016) available at https://​au​.int/​en/​treaties/​ african​-charter​-maritime​-security​-and​-safety​-and​-development​-africa​-lome​-charter. 21 22

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tualizes maritime security as ‘a state of affairs of the global maritime domain, in which international law and national law are enforced, freedom of navigation is guaranteed and citizens, infrastructure, transport, the environment and marine resources are protected’.23 Similarly, the UK National Strategy for Maritime Security is concerned with ‘the advancement and protection of the UK’s national interests, at home and abroad, through the active management of risks and opportunities in and from the maritime domain, in order to strengthen and extend the UK’s prosperity, security and resilience and to help shape a stable world’.24 Each of these maritime security strategies includes a different mix of emphases, inclusions and exclusions. The NATO strategy, for example, prioritizes deterrence and collective defence, alongside issues such as crisis management and cooperative security, and thus continues to emphasize ‘hard’ naval power alongside more diffuse maritime security tasks.25 The UK strategy, in contrast, explicitly does not consider ‘defence of the realm’, military campaigns or maritime safety as part of its remit. The AU’s 2050 AIM Strategy emphasizes the importance of maritime resources and trade to economic security and development on the continent, with a focus on capacity-building in areas including coastguard capabilities and port facilities.26 Even so, the overall thrust of each of these approaches is essentially holistic, representing an attempt to understand and engage with the maritime arena as an interlinked security complex, rather than a series of discretely separated threats or challenges. They also recognize maritime security as a collective problem of political order, over which no one actor can exercise determinative control. 2.3

The Core Dimensions of Maritime Security

Seen in this way, the new strategic documents provide important considerations for security studies scholars concerning the nature of maritime security. Accordingly, the contemporary maritime security complex consists of four domains, each of which incorporates a series of variously cross-cutting security concerns. The first of these domains comprises what are best thought of as national security issues, corresponding largely to long-established traditions of naval strategy and sea power. The national security component of maritime security involves the development and application of naval power, incorporating

25 26 23 24

European Union Maritime Security Strategy (n 22) 3. UK National Strategy (n 22) 15. NATO (n 22) 1. 2050 Africa’s Integrated Maritime Strategy (n 22) 8–10.

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military power projection and homeland defence at sea, as well as the use of warships to protect maritime trade routes and commerce through functions including deterrence, surveillance and interdiction.27 Such concerns remain of latent or extant importance in many parts of the world, most notably in regions of current geopolitical rivalry, such as the South China Sea. A second domain addresses the marine environment. This incorporates a diverse range of issues such as marine pollution, vessel safety and regulation, maritime search and rescue, the state of ocean health, pollution and the impacts of climate change. The marine environment is a similarly long-established concern in the maritime sphere, with its genesis in international efforts to regulate shipping and other activities at sea through intergovernmental organizations such as the International Maritime Organization (IMO) or coordination bodies such as UN Oceans. Marine environment issues relate to maritime security in a number of ways. They represent a manifestation of wider environmental security concerns at sea and in coastal areas. They also concern the position of commercial shipping as a potential target for criminals, terrorists or pirates, and as a medium for trafficking in persons, illicit goods or weapons.28 Environmental degradation caused through fishery crimes or other environmental crimes, moreover, has the potential to increase the grievances of coastal populations and leads to maritime instability. Marine environment issues are closely linked to a third domain of economic development. So-called ‘blue economy’ concerns underpin much of the maritime security agenda. Around 90 per cent of global trade travels by sea, and marine resources such as fisheries or offshore oil are key economic assets.29 Global commerce can be threatened by piracy, criminality or other forms of maritime disruption, while marine resource protection and development are often central priorities for coastal states. Indeed, it is notable in this regard that the AU’s 2050 AIM Strategy places ‘blue growth’ at the heart of its narrative, while the EU produced its own specific ‘blue growth’ strategy in 2012.30 A final domain addresses issues of human security, in the sense of the insecurities experienced by individuals and local communities as well as those affecting states.31 Human security issues penetrate much of the maritime security agenda. The protection and sustainability of fisheries, for example, under-

C Bueger, ‘What Is Maritime Security?’ (2015) 53 Marine Policy 160, 160–161. Ibid. 29 UK National Strategy (n 22) 25. 30 European Commission, Blue Growth: Opportunities for Marine and Maritime Sustainable Growth (2012) available at http://​eur​-lex​.europa​.eu/​legal​-content/​EN/​ TXT/​PDF/​?uri​=​CELEX:​52012DC0494​&​from​=​EN. 31 UNDP, Human Development Report 1994 (OUP 1994) available at http://​hdr​ .undp​.org/​sites/​default/​files/​reports/​255/​hdr​_1994​_en​_complete​_nostats​.pdf. 27 28

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pin the livelihoods of millions of people living in coastal regions, while these same groups are often the most vulnerable to the adverse impacts of climate change or maritime pollution. Such concerns relate not only to the security of the individuals and coastal communities themselves, but also to the role of human insecurity in facilitating the emergence of activities such as piracy or criminality as alternative sources of employment in regions of significant economic deprivation or breakdown. Conceived of in this way, the maritime security agenda has four distinguishing characteristics. The first of these is the interconnected, sometimes interdependent, nature of the security challenges maritime security presents.32 For example, the collapse of the Somali state in the 1990s left coastal regions open to predation from illegal, unregulated or unreported fishing by richer states, as well as to other activities such as the unregulated disposal of toxic waste. Such activities exacerbated the already significant degradation of legitimate local fishing economies as a result of the war and created a substantial body of socially and economically dislocated young men, whose primary ‘saleable’ skills were linked to seamanship through fishing or violence through conflict.33 Piracy also appears to have been tolerated by local communities, owing to a strong defensive or moral narrative that portrayed it as a legitimate response to international predation.34 As a problematic of security, Somali piracy thus includes themes of national security (international naval patrols and engagements), maritime safety (safety and duty of care to hijacked ships’ crews), economic development (fisheries protection and development) and human security (among vulnerable coastal communities). It is emblematic of the way in which many maritime security issues engender elements of both hard and soft power in relation to managing the consequences of insecurity and aspiring to address its root causes. A second characteristic of maritime security is its liminality. Most maritime security issues are not simply – indeed, cannot simply – be understood and addressed as problems of the marine environment alone. Instead, they are invariably interlinked with challenges on land as well, as the case of Somali piracy discussed above illustrates. Land, coastal zones, ports and other infrastructures are integral to maritime security in other ways too. The effective governance and security of port facilities are often key to managing such challenges as smuggling, robbery and corruption. Similarly, the ‘back end’ of Speller (n 9) 194–195. AI Samatar, M Lindberg and B Mahayni, ‘The Dialectics of Piracy in Somalia: The Rich Versus the Poor’ (2010) 31(8) Third World Quarterly 1381; SG Phillips, ‘When Less Was More: External Assistance and the Political Settlement in Somaliland’ (2016) 92(3) International Affairs 649. 34 Samatar et al (n 33) 1385–1386. 32 33

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piracy or terrorism – that is, the manner in which such activities are organized, sustained and funded, and the mechanisms through which profits are laundered and spent – primarily take place on land.35 Third, maritime security issues often transcend clear boundaries of governmental responsibility or state competence. The high seas are, by definition, a transnational environment, over which sovereignty is shared, and where the state is but one actor among many. In this context, the management of maritime insecurity must inevitably incorporate a range of different actors and agendas, including those of the littoral states concerned, local communities and fishermen, flag states, multinational shipping or fishing interests, resource extraction and tourism industries, and sometimes private security companies.36 So, for example, international efforts to combat illegal, unregulated or unreported fishing or waste dumping at sea necessarily involve policing and enforcement actions by the navies or coastguards of individual states, regional cooperation and regulation of various sorts – including through international organizations such as the EU or UN – as well as engagement with the activities and practices of internationally diverse private actors or companies at sea. In this respect, as Till has observed, the ‘battle for maritime security’ is often a ‘quintessentially cooperative’ one.37 Finally, and by extension, maritime security is inherently cross-jurisdictional, or at least jurisdictionally complex.38 At an international level, piracy on the high seas has been tackled primarily as a problem of naval (law) enforcement, governed by international maritime law. Yet this raises a range of practical questions, such as how captured pirate suspects should be dealt with, including where they should be tried and potentially incarcerated.39 Even within territorial waters, there may be significant overlap or tensions between law-enforcement, naval and development-driven security imperatives. Indeed, it is instructive in this regard to consider that the US NSMS replaced what had previously been a series of separate departmental-level strategies, including, JV Hastings, ‘Geographies of State Failure and Sophistication in Maritime Piracy Hijackings’ (2008) 28(4) Political Geography 215. 36 P Cullen, ‘Private Security Companies in the Malacca Straits: Mapping New Patterns of Security Governance’ in A Colas and B Mabee (eds), Mercenaries, Pirates, Bandits and Empires: Private Violence in Historical Context (Hurst 2010). 37 G Till, ‘The Changing Dynamics of Seapower and Concepts of Battle’ in Bekkevold and Till (eds) (n 4) 177. 38 Kraska and Pedrozo (n 13) 5–15. 39 J Bering Liisberg, ‘The Legal Aspects of Counter-Piracy’ in T Tardy (ed.), The Contact Group on Piracy off the Coast of Somalia: A Lessons Learned Compendium (EUISS 2014); MP Scharf, ‘Introduction’ in MP Scharf, MA Newton and M Sterio (eds), Prosecuting Maritime Piracy: Domestic Solutions to International Crimes (CUP 2015). 35

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for example, those of the Department of Defense and the Department of Homeland Security.40 The UK NSMS is even more jurisdictionally eclectic, making reference to at least 21 different government departments or agencies, including the Ministry of Defence, Foreign and Commonwealth Office, Maritime and Coastguard Agency, Home Office, Department for Transport and Department for Environment, Food and Rural Affairs, among others.41 The maritime sphere is thus increasingly understood as a complex and holistic problematic of security, requiring extensive national, jurisdictional and public–private coordination if the challenges it presents are to be effectively addressed. In practice, these challenges of maritime insecurity are generating novel forms of association, integration and cooperation between actors. It is to these practices that this chapter now turns. Many of our examples are drawn from the western Indian Ocean. This region incorporates a wide range of contemporary maritime security challenges, from piracy to geopolitical competition. It is of major global significance as a principal artery of maritime trade and has also been a crucible of innovation in relation to the collective management of disorder. We do not suggest it presents a direct facsimile of practice and experience elsewhere. In other parts of the world – notably the South China Sea – different patterns may predominate. However, we do think that it is paradigmatic of changes and innovations that are of wider geographical relevance.

3.

ORGANIZING MARITIME SECURITY AND MANAGING COMPLEXITY

When drafting its maritime security strategy, the EU conducted a mapping exercise of relevant agencies within the organization itself and its members. This exercise identified 383 groups or organizations that dealt with the issue in one way or another, reflecting the complexity of the maritime security environment at the European level alone.42 Similarly, the Contact Group on Piracy off the Coast of Somalia (CGPCS) faces the challenge of bringing together and coordinating the activity of over 80 states and 25 international organizations in order to address piracy in the western Indian Ocean.43 The organizational and

US National Strategy (n 18) ii. UK National Strategy (n 22) 21. 42 M Houben, ‘The Evolution of the EU’s Maritime Security Strategy’, talk given at workshop on ‘Building Trust to Enhance Maritime Security’, Coventry University, and the Small Arms Survey, Geneva, Switzerland, 10 and 11 November 2014. 43 T Tardy (ed.), Fighting Piracy off the Coast of Somalia: Lessons Learned from the Contact Group (EU Institute for Security Studies 2014). 40 41

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international diversity of such initiatives illustrates the challenge of producing coherent and holistic responses to the maritime security problematic. In the western Indian Ocean region this challenge has led to a range of experiments in coordination and novel forms of association and practice within, among and between the various different actors involved in the maritime security complex. These innovations can be observed at three levels: first, an epistemic level centred on joint knowledge production; second, a coordination level focused on devising common scripts for action; and finally, an operational level incorporating joint maritime security activities in the field. 3.1

Maritime Domain Awareness and New Epistemic Infrastructures

At the epistemic level, innovation in the maritime security complex can be seen in a range of new mechanisms for knowledge production about the maritime security environment, and in particular the development of what are often called maritime domain awareness (MDA) or maritime situational awareness (MSA) initiatives. Such activities originate in efforts to improve mariners’ awareness of current and impending weather conditions but, as Jeff Kline notes, increasingly provide ‘an inspirational template for countering human-made threats to the maritime domain’.44 In order to do this, they draw on a wide range of data, including the (voluntary) tracking of ship movements through information-gathering systems such as the Automatic Identification System (AIS); active surveillance through naval patrols, aerial reconnaissance, satellite imaging and radar systems;45 and the collection and analysis of data from national and international agencies with a role in maritime security, including port authorities, customs and law enforcement. MDA aims to provide a rich database of information, often in real time, against which maritime security activities – including interceptions and inspections of vessels at sea – can be planned and targeted, through centralized data-mining techniques. The ambitions of MDA are considerable and go well beyond marine surveillance as conventionally understood.46 Indeed, the US approach to MDA aims at nothing less than ‘the effective understanding of anything associated

44 J Kline, ‘Maritime Security’ in S Jasper (ed.), Securing Freedom in the Global Commons (Stanford University Press 2010) 69. 45 L Etienne, A Hjelmfet, R Pelot and M Fournier, ‘Global Maritime Situational Awareness’ in JS Syliowicz and O Celebi (eds), Global Maritime Security: New Horizons (Turkish Maritime Forces 2014). 46 C Rahman, ‘Maritime Domain Awareness: The Key to Maritime Security’ in N Klein, J Mossop and DR Rothwell (eds), Maritime Security: International Law and Policy Perspectives from Australia and New Zealand (Routledge 2010) 202.

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with the maritime domain that could impact the security, safety, economy, or environment of the United States’.47 Such aspirations require significant transnational cooperation, as well as engagement with a wide range of substate and private actors. Other initiatives exploit the opportunities presented by communication and information technologies to open up new channels of knowledge exchange between civil and military actors, and between the navies or vessels of nations that might normally be reluctant to cooperate with each other. For example, international action against piracy off the coast of Somalia has been facilitated by the information-sharing platform Mercury, which allows various stakeholders – including national navies, international missions, and civil information-sharing centres – to communicate with each other through synchronous text-based chat, with a live feed on naval operations and piracy incidents providing real-time data to all participating actors.48 3.2

Coordination and Maritime Security Governance

Similar innovations are taking place at the level of coordination and maritime security governance. Here, the maritime security agenda is giving rise to a number of new organizational mechanisms, the aim of which is to coordinate action in the face of shared challenges. Governance mechanisms such as the CGPCS are process-driven, informal organizations that work on principles of inclusivity rather than representation. They bring together a heterogeneous set of actors, including states, international organizations, industry associations, think tanks, and civil and military representatives of implementing bodies, in order to coordinate shared responses to maritime security challenges. Although the decisions of such organizations tend to be non-binding in nature, they exert a substantial orchestrating effect and increasingly engender new forms of transnational coordination. The CGPCS, for example, has facilitated the development of a legal system on the basis of memorandums of understanding by which piracy suspects can be arrested, transferred, prosecuted and jailed across different jurisdictions.49 In contrast to traditional regimes focused on rule enforcement, these organizations emphasize problem-solving and policy-learning and aim to develop

47 US Government, National Maritime Domain Awareness Plan (2013) available at https://​www​.hsdl​.org/​?abstract​&​did​=​747691, 1. 48 Rowan Watt-Pringle, ‘How to Catch a Pirate: Technology Is Key’ (24 November 2011) available at http://​www​.naval​-technology​.com/​features/​featurehow​-to​-catch​-a​ -pirate​-cooperation​-is​-key/​. 49 C Bueger, ‘Experimenting with Global Governance: Learning Lessons in the Contact Group on Piracy’ in J-P Voss and R Freeman (eds), Knowing Governance: The Epistemic Construction of Political Order (Palgrave Macmillan 2015).

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new communities of inquiry among novel associations of actors, including many whose relations may under other circumstances be distant or even antagonistic. For instance, the Djibouti Code of Conduct brings together Arab states with partners from eastern and southern Africa to coordinate maritime security responses to piracy.50 A similar spirit is observable in many of the recent maritime security strategies discussed above. The EU strategy, for example, is not centred on creating new organizations and hierarchies to centralize the coordination of responses, but instead emphasizes a flexible and problem-orientated approach to shared challenges of maritime security governance.51 3.3

Operational Coordination

These forms of association also find expression at the operational level, where, to date at least, they have been most prominent in anti-terrorist and counter-piracy activities. Examples include NATO’s Operation Active Endeavour (OAE), located in the Mediterranean, and the US-led Combined Maritime Forces (CMF), focusing on the western Indian Ocean. These operations were initially tasked with preventing the proliferation of WMD and terrorist activities. However, since starting operations in 2002 they have considerably expanded their mandates and range of operations, which now include broader patrolling tasks, surveillance and interdiction. Both missions are characterized by a flexible participation structure. A range of non-NATO members have participated in OAE, for example, including Georgia, Russia and Ukraine.52 The CMF framework is even more inclusive, including a range of different non-NATO navies, some of which – including those of Pakistan, Japan and South Korea – have taken command responsibility for joint operations. Another example is the Shared Awareness and Deconfliction Mechanism (SHADE), established in 2008 to conduct informal discussion among, and remove conflict from the activities of, the diverse nations and organizations involved in counter-piracy operations off the Horn of Africa. Since 2012, 14 international organizations and 33 countries have participated in SHADE meetings.53 The novelty of the SHADE arrangement, and the opportunities it

50 C Bueger and M Singh Saran, ‘Finding a Regional Solution to Piracy: Is the Djibouti Process the Answer?’ (2012) available at http://​piracy​-studies​.org/​2012/​ finding​-a​-regional​-solution​-to​-piracy​-is​-the​-djibouti​-process​-the​-answer/​. 51 European Union Strategy (n 22) 4–6. 52 NATO, Operation Active Endeavour (archived) (Brussels 2016) available at http://​www​.nato​.int/​cps/​en/​natohq/​topics​_7932​.htm. 53 J Huggins and J Vestergaard Madsen, ‘The CGPCS: The Evolution of Multilateralism to Multi-Stakeholder Collaboration’ in Tardy (ed.) (n 43) 27.

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offers for addressing common problems, have been recognized by the US State Department, which described the organization as not … a coalition [which] implies [centralized] command and control. Instead [there are] three organized missions and a wide variety of national independent deployers who have simply chosen to collaborate. No one is in charge. No one has command. They deconflict and operate constructively, and that’s a new model of operation … many countries are voluntarily collaborating to secure the maritime space. That’s a remarkable phenomenon.54

The shared challenges of the maritime security agenda are thus leading to practices that link information, actors and actions in ways that transcend established national or regional boundaries. They also bridge traditional civil– military and public–private distinctions, incorporating actors ranging from naval forces to shipping interests and private military security companies, who may be from otherwise antagonistic nations such as the United States, Iran, China and Russia. Such associations are circumstantially bounded, in the sense that they derive from specific coalitions of interest in the face of disorder at sea; in this case, the threat of piracy. However – in the western Indian Ocean region at least – it is striking that they have not dissolved with the decline of the piracy problem in the region since 2013. Indeed, there has been a gathering effort to institutionalize the priorities, infrastructures and practices of the maritime security agenda to the states of the region themselves through a process of capacity-building and devolved security governance. Maritime security responses in the western Indian Ocean are reflected in analogues or emulations of core practices from the region in other parts of the world. For example, the G8++ Friends of the Gulf of Guinea Group is a security coordination mechanism modelled on the CGPCS. In the same region, the Djibouti Code of Conduct finds a parallel in the Yaounde Code of Conduct, adopted in 2013. The SHADE model has also been adopted elsewhere, for example in the creation of the so-called SHADE Med arrangement in 2015 to coordinate the actions of different actors and organizations in meeting the migration crisis in the Mediterranean. The Information Fusion Centre in Singapore hosts ‘shared awareness meetings’ which discuss maritime security issues and coordination in the Southeast Asian region. MDA architectures are also increasingly common, including the US National Plan to Achieve Maritime Domain Awareness, the EU’s Common Information Security Environment initiative and projects to develop MDA capacities in the Arctic. While not all such initiatives are as developed or successful as their

54 ‘Maritime TV panel discussion with Donna Hopkins, US State Department Coordinator on Counter Piracy and Maritime Security’ (26 June 2013) Piracy Daily.

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counterparts in the western Indian Ocean, they are indicative of the increasing significance of such practices in maritime security governance more widely.

4.

GOVERNING MARITIME SECURITY ABROAD: CAPACITY-BUILDING AND SSR

Another major type of international practice concerns attempts to distribute knowledge and skills for the management of maritime insecurity through initiatives in capacity-building and the reform of the maritime security sector. In the western Indian Ocean region there has been a significant growth in external initiatives since 2012. These were initially a response to Somali piracy but have since taken a much wider focus, with activities aiming to address the root causes of maritime insecurity in the region and to enable littoral states to take over key security governance tasks from the international community. SSR and capacity-building efforts in the maritime sphere are led by a number of core security actors. The key active states include the United States and the United Kingdom, alongside international and regional organizations such as the United Nations Office on Drugs and Crime, the EU and the IMO. 4.1

Examples of US and EU Initiatives

In December 2010 the United States published a cross-departmental report on maritime security sector reform (MSSR), with the involvement of the Departments of State, Defense, Justice, Homeland Security and Transportation, and USAID.55 The report became an influential intellectual source and guidance document for how to organize a maritime security sector and continues to be widely used in planning and implementation. The document adopts a holistic understanding of the maritime security concept, incorporating the challenges and institutions of maritime governance, maritime civil and criminal authority, maritime defence, maritime safety, maritime response and recovery, and maritime economy.56 It provides a comprehensive and systematic guide to MSSR in practice, with a range of technical assessment criteria, strategic guidelines and planning tools aimed at structuring and prioritizing MSSR activities across various actors and dimensions of maritime security governance. The activities themselves are likewise wide ranging and comprehensive, ranging from initiatives aimed at strengthening maritime law enforcement, through training and

55 US Government, Maritime Security Sector Reform (2010), available at https://​ www​.usaid​.gov/​sites/​default/​files/​documents/​1866/​Maritime​-Security​-Sector​-Reform​ _FINAL​.pdf. 56 Ibid, 1–2.

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capacity-building with local partners, to the development of country-specific maritime law and policy, and the institutions of mechanisms for accountability and transparency in the maritime security sector.57 For its part, the EU has invested significant resources in maritime capacity-building initiatives, in what it self-consciously refers to as a ‘comprehensive approach’.58 The EUCAP Nestor (from 2016, EUCAP Somalia) mission, for example, was established under the auspices of the EU’s Common Defence and Security Policy, with the aim of enhancing the maritime capacities of Djibouti, Kenya, Tanzania, the Seychelles and Somalia.59 It has focused particularly on strengthening the rule of law in target countries and developing coastguard capacities through training and technical/material assistance.60 Other EU capacity-building initiatives include the Critical Maritime Routes programme, which develops regionally specific projects aimed at training, education and knowledge exchange in key areas of maritime insecurity;61 and the Maritime Security Programme (MASE), which incorporates social and development, legal, investigative, capacity-building, and regional coordination and information exchange components.62 These US and EU programmes, as well as similar initiatives by other actors,63 share a number of characteristics. They draw on an understanding of maritime security that is multifaceted, involving capacity-building on land as well as enforcement at sea. A holistic approach is seen to be necessary because it encourages a focus on the commonalities of the problem or problems at hand, rather than on specific – and sometimes rather notional – institutional distinctions between, say, coastguard, navy and port police. It also recognizes the importance of wider governance issues in addressing the root causes of Ibid, 5. European Union External Action Service (EEAS), Regional Maritime Security Capacity Building Mission in the Horn of Africa and the Western Indian Ocean (2014), available at http://​www​.eeas​.europa​.eu/​csdp/​missions​-and​-operations/​eucap​-nestor/​ documents/​factsheet​_eucap​_nestor​_en​.pdf 2. 59 Ibid, 1–2. 60 EEAS, European Union Mission on Regional Maritime Capacity Building in the Horn of Africa (EUCAP NESTOR), Council decision 2012/389/CFSP (2012) available at http://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​PDF/​?uri​=​CELEX:​02012D0389​ -20151207​&​qid​=​1473075547345​&​from​=​EN. 61 EU, Critical Maritime Routes Programme available at https://​ criticalmaritimeroutes​.eu/​. 62 European Commission, Programme to Promote Regional Maritime Security (MASE) (2013) available at http://​ec​.europa​.eu/​europeaid/​programme​-promote​ -regional​-maritime​-security​-mase​_en. 63 T Edmunds, Maritime Capacity Building in the Horn of Africa: States of Somalia, EU-CIVCAP working paper (May 2017) available at https://​eucivcap​.files​ .wordpress​.com/​2017/​12/​eucivcap​-workingpaper​-01​-17​-edmunds​.pdf 3–5. 57 58

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maritime insecurity. These activities thus make an explicit link between security, security institutions and the wider political and socio-economic environments in which they sit. They recognize that security responses do not exist in isolation from the wider polity in which they take place; they are nested within it, influenced by it, and themselves exert influence on it.64 4.2

Understanding Capacity-Building

In one sense, this holistic approach is a straightforward instrumental reflection of and response to the institutional complexities and linkages inherent in the maritime security problematic. It represents an attempt to approach the building of maritime security in a joined-up way: to make connections where they exist and to avoid actions in one area that may be counterproductive in others. However, maritime capacity-building – like similar efforts on land65 – also needs to be recognized as an explicitly normative endeavour. It is about how local actors can be supported and encouraged in managing their maritime security sectors in a particular manner and within a preferred model of political organization. In application, it tends to give preference to the formal institutions of the state – the navy, police, coastguard and so on – as well as the legal frameworks within which they operate, and the bureaucratic and institutional mechanisms through which they are organized and administered. Where such institutions are weak or non-existent, it focuses on strengthening or rebuilding them through activities including training, resourcing and sometimes equipment or infrastructure provision.66 It is generally bound up with rationalist notions of organizational effectiveness, efficiency and planning. Thus, organizational reform often focuses on issues of professionalization in security institutions, including the definition of clear organizational roles and responsibilities, the development of appropriate structures, training and human resources to fulfil these tasks, the establishment of formal organizational planning models, and the implementation of common standards of best practice in their day-to-day

64 H Hänggi, ‘Conceptualising Security Sector Reform and Reconstruction’ in A Bryden and H Hänggi (eds), Reform and Reconstruction of the Security Sector (Transaction 2004) 4–8. 65 M Venner, ‘The Concept of “Capacity” in Development Assistance: New Paradigm or More of the Same?’ (2015) 27(1) Global Change, Peace and Security 93. 66 M Sedra, ‘Introduction: The Future of Security Sector Reform’ in M Sedra (ed.), The Future of Security Sector Reform (Centre for International Governance Innovation 2010).

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operation.67 It is also often distinguished by a focus on issues of good governance, accountability and transparency in the maritime security sphere – all of which are derived from notions of democratic politics. Capacity-building thus aims to institutionalize externally derived notions of best practice in security governance, and to encourage local actors to share responsibility for the maritime insecurities in their own regions. However, it does face challenges. The normative nature of such activities may put them in tension with local priorities, interests or ways of doing things.68 For example, reforms aimed at strengthening and enforcing the fishing permit system in Somalia may run counter to the interests of those elites who benefit financially from its currently dysfunctional state.69 Efforts to eliminate petty corruption in the port police or coastguard may stumble in a fiscal environment in which serving personnel are rarely or inadequately paid.70 In order to address these tensions – and to increase the likelihood that reforms will become institutionalized and self-sustaining once external actors leave – capacity-builders often emphasize what is called ‘local ownership’ in their activities. Thus, for example, the EU’s strategic framework for supporting SSR emphasizes ‘the participation of all stakeholders’ and the importance of ‘inclusive consultation processes’ as baseline principles for its SSR initiatives.71 The same document notes that, to be ‘applicable and effective’, programmes should be ‘developed on the basis of nationally owned processes’, and that ‘reform efforts will be effective and sustainable only if they are rooted in a country’s institutions … owned by national security and justice actors, and considered legitimate by society as a whole’.72 Similar aspirations are visible in the approaches of other actors, including the US government’s MSSR framework. In practice, the extent to which local ownership is taken seriously by external actors varies considerably. Often, it can be applied in a limited and even paradoxical manner, meaning the extent to which locals come to accept the T Edmunds, Security Sector Reform in Transforming Societies: Croatia, Serbia and Montenegro (Manchester University Press 2007) 38–39. 68 T Edmunds, ‘Illiberal Resilience in Serbia’ (2009) 20(1) Journal of Democracy 128. 69 P Leymarie, P Rekacewicz and A Stienne, UNOSAT Global Report on Maritime Piracy: A Geospatial Analysis, 1995–2013 (United Nations Institute for Training and Research 2013) 21. 70 M Downs and R Muggah, ‘Breathing Room: Interim Stabilization and Security Sector Reform in the Post-War Period’ in Sedra (ed.) (n 66) 140–144. 71 European Commission, Elements for an EU-Wide Strategic Framework to Support Security Sector Reform (2016) available at https://​ec​.europa​.eu/​europeaid/​ sites/​devco/​files/​joint​-communication​-ssr​-20160705​-p1​-854572​_en​.pdf, 5. 72 Ibid, 7. 67

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(externally driven) security-building agenda on its own terms.73 At other times, it can be more nuanced and include the substantive engagement of local elites in the formulation, planning and evaluation of projects. Even so, notions of local ownership can expose important differences of priority between external donors and local actors. In Somalia, for example, local actors have tended to attach more importance to those aspects of the maritime capacity-building agenda associated with blue growth and human security, in contrast to many donors who stress anti-piracy or counter-terrorism activities.74 Either way, the prevalence of local ownership discourse in these activities is indicative of the extent to which the maritime security agenda goes beyond a series of merely technical or instrumental responses to new security challenges. It also seeks to install and embed these responses in target regions, and to do so through mechanisms that strive to refashion and indigenize specific practices of governance in the recipient states concerned.

5.

THE FUTURE OF MARITIME SECURITY STUDIES

In 2017 around 80 per cent of the global population lived within 160 kilometres of a sea coast, and many of the world’s major cities – including, among many others, Lagos, London, Mumbai, New York, Shanghai and Tokyo – are situated in coastal locations.75 Rapid urbanization, particularly in the developing world, means that these numbers will rise significantly in the coming decades. The oceans also remain at the heart of global trade, with 90 per cent of all goods transported by sea, and the transportation of maritime cargo expected to double between 2014 and 2020.76 The sea and its littoral are thus heavily implicated in the full range of contemporary security concerns, in ways and to an extent that are unlikely to diminish any time soon. In some parts of the world – the South China Sea, for example – such concerns may be obscured or overshadowed by geopolitical competition and naval confrontation.77 However, even under these circumstances, the challenges of the maritime

73 F Ejdus, ‘“Here Is Your Mission: Now Please Have Some Ownership”: The Rhetoric and Practice of Local Ownership in CSDP operations’ (2017) 26(4) European Security 464. 74 Edmunds (n 63) 7. 75 NATO (n 22) [II.4]. 76 UK National Strategy (n 22) 39. 77 Z Fangyin, ‘Between Assertiveness and Self-Restraint: Understanding China’s South China Sea Policy’ (2016) 92(4) International Affairs 869; K Morton, ‘China’s Ambition in the South China Sea: Is a Legitimate Maritime Order Possible?’ (2016) 92(4) International Affairs 909.

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security agenda remain present, as do significant areas of shared interest in relation to, for example, environmental protection or fisheries management.78 In contrast to some observers who argue we are entering a new period of danger, even anarchy,79 we suggest that the maritime security agenda is in fact leading to new forms of international order at sea. This process is pragmatic and incremental in nature, driven by innovation and change in the maritime arena itself rather than by wider structural shifts in geopolitics or international regulation. International actors are developing practical responses to the specific challenges of maritime security. These reflect the requirement to coordinate and integrate the four domains of maritime security – namely sea power, the marine environment, economic development and human security. Such responses have occurred at the epistemic, coordination and operational levels and have been exported through capacity-building projects.

6.

THE FUTURE AGENDA OF MARITIME SECURITY STUDIES

Understanding maritime security and the structural and practical challenges it poses for how the sea is governed will require ongoing in-depth studies of the activities and initiatives that international actors undertake to cope with the key elements of maritime security. This implies expanding the view beyond the perspective of traditional realist and liberal theorizing and using the more fine-grained lenses provided by new security studies in considering normative structures, practices and knowledge. It is necessary, while retaining the insights of studies of sea power and maritime law, to take them further by connecting them to more sociological and more empirical interdisciplinary observations. Five areas in particular require further attention. First, we need to understand the changing character of sea power and the way it is being transformed through connections with concerns over the marine environment, the blue economy and human security, the new emphasis placed on maritime crime and law enforcement at sea, and the full range of practical innovations in use, including technology and informal practices. Second, we need to revisit the role of formal and informal rules for maritime security governance and examine how these are enforced through operations at sea, new (informal) legal coordination mechanisms and capacity-building, considering the creativity required to manage the complexity and increasing fragmentation of mari A Patalano, ‘Maritime Strategy and the South China Sea’ in Moran and Russell (eds) (n 4) 143; H Zhang, ‘Fisheries Cooperation in the South China Sea: Evaluating the Options’ (2018) 89 Marine Policy 68. 79 D Sloggett, The Anarchic Sea: Maritime Security in the Twenty-First Century (Hurst 2013). 78

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time law. Third, we need to analyse the ways in which established patterns of international security cooperation – alliances, multinational operations and so on – have become more diffuse, complex and associational, involving a range of (often otherwise antagonistic) national partners, but also private and other non-state actors, including shipping companies, private military and security companies, fishing communities and other substate groups. These activities expand and challenge many traditional notions of state action and cooperation and suggest a range of novel mechanisms and networks through which security can – and is – being practised. Fourth, we need to pay more attention to the connections between land and sea, the different forms of maritime crime and other threats, and how these reinforce each other. If these issues are to be understood and ameliorated, maritime security studies needs to incorporate a more sustained engagement with their causes and interactions on land, as well as their manifestations at sea. Fifth, we need to revisit the political functions and structural effects of capacity-building in the maritime sphere. At present, these initiatives remain relatively immature compared to their more established counterparts on land, and there is much that may be gained from a more systematic sharing of experience. This is particularly so with regard to the manner in which such efforts are received in the target communities in which they take place, including the question of local ownership, and has implications for their efficacy and sustainability over the long term. In short, we believe that it is time for security studies to move beyond seablindness and recognize the maritime arena as a crucible for change and innovation in global politics as a whole. Doing so will lead to a more interconnected and broadly relevant understanding of the maritime security complex and will open up an important area of international interaction to the discipline more widely.

3

Fisheries and maritime security: understanding and enhancing the connection Richard Barnes and Mercedes Rosello

1. INTRODUCTION Maritime security can generally be understood to mean freedom from threat or danger within a maritime context. Traditionally maritime security has been understood in terms of direct or physical security.1 Typically, this concerns military or policing issues, such as inter-State conflicts, piracy or trafficking. This narrow understanding is increasingly challenged, first because there is a growing recognition that there is a lack of consensus over its meaning,2 and second, because there is recognition in wider security studies discourse that security threats are complex, multifaceted and interconnected.3 There is some appreciation of the conceptual issues and complexity of security in maritime security literature but this is still in its infancy.4 Most literature on maritime security focuses on military or policing activities whereas fisheries literature is predominantly concerned with the conservation and management of resources and with the social and economic impacts of overfishing. Occasionally, the literature meets, for example with respect to the root causes of piracy, where

1 See, for example, MH Nordquist, R Wolfrum, JN Moore and R Long, Legal Challenges in Maritime Security (Brill 2008). 2 C Bueger, ‘What Is Maritime Security?’ (2015) 53 Marine Policy 159. 3 B Buzan, People, States & Fear: An Agenda for Security Studies in the Post-Cold War Era (ECPR Press 2016); B Buzan, O Waever and J de Wilde, Security: A New Framework for Analysis (Lynne Rienner 1998). 4 S Bateman, ‘Solving the “Wicked Problems” of Maritime Security: Are Regional Forums up to the Task?’ (2011) 33 Contemporary Southeast Asia 1; C Bueger and T Edmunds, ‘Beyond Seablindness: A New Agenda for Maritime Security Studies’ (2017) 93 International Affairs 1293.

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aggressive or uncontrolled foreign fishing has been presented as a contributory factor in the growth of piracy in Somali waters5 and in the Gulf of Guinea.6 Maritime security policy is beginning to change and one may note that some statements on maritime security occasionally include reference to fisheries – typically illegal, unreported and unregulated (IUU) fishing.7 Some authors are sensitive to this change. Thus, some aspects of fisheries regulation, or rather IUU fishing, are occasionally connected to wider debates about maritime security.8 This literature is increasingly concerned with the operational links that make fishing activities vulnerable to or synergistic with crime. Other areas, such as the degree to which fisheries disputes and their resolution contribute to insecurity and good order respectively, remain underexplored. This chapter aims to deepen the dialogue about how fisheries fit within the broader framework of maritime security. We seek to move the debate forward by extending discussions about fisheries regulation into maritime security, showing how poor or ineffective regulation and management of fisheries activities can have a wider destabilising effect on maritime security. In particular, we argue that cumulative, multiple stresses at lower/different levels can render maritime security generally more vulnerable. This is a novel perspective because it com-

See Ranee Khooshie Lal Panjabi, ‘The Pirates of Somalia: Opportunistic Predators or Environmental Prey?’ (2010) 34 William and Mary Environmental Law and Policy Review 377, 433–436. 6 GL Denton and JR Harris, ‘The Impact of Illegal Fishing on Maritime Piracy: Evidence from West Africa’ (2019) Studies in Conflict & Terrorism, DOI: 10.1080/1057610X.2019.1594660. 7 See United Nations General Assembly (UNGA), ‘Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its ninth meeting’ (2008) A/63/174, [10(e)] [plus corrigendum A/63/174/ Corr.1] and [69]–[73]. In addition, see the US Cooperative Strategy for 21st Century Seapower (2015) 13 and 15; the European Union Maritime Security Policy, 24 June 2014, available at http://​register​.consilium​.europa​.eu/​doc/​srv​?l​=​EN​&​f​=​ST​%2011205​ %202014​%20INIT. See also Communication from the Commission to the European Parliament and the Council on the application of Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, COM (2015) 480 Final, 1.10.2015, [1]. 8 E de Coning, and G Stolsvik, ‘Combatting Organised Crime at Sea: What Role for the United Nations Office on Drugs and Crime’ (2013) 28 International Journal of Marine and Coastal Law 189; E de Coning and E Witbooi, ‘Towards a New Fisheries Crime Paradigm: South Africa as an Illustrative Example’ (2015) 60 Marine Policy 208; I Chapsos and J Malcolm, ‘Maritime Security in Indonesia: Towards a Comprehensive Agenda?’ (2017) 76 Marine Policy 178; I Chapsos and S Hamilton, ‘Illegal Fishing and Fisheries Crime as a Transnational Organized Crime in Indonesia’ (2018) Trends in Organized Crime 1; J Lindley, S Percy and E Techera, ‘Illegal Fishing and Australian Security’ (2019) Australian Journal of International Affairs 82. 5

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bines two discrete areas of concern: maritime security discourse and fisheries law. This proceeds in a number of steps. The first step, progressed in Sections 2 to 4, draws out the complex relationship between fisheries and maritime security. After discussing the meaning of maritime security in Section 2, an overview of the legal and policy framework is provided in Section 3. This reveals a mainly indirect recognition of the connection between fisheries and security within the United Nations Convention on the Law of the Sea (LOSC)9 and other treaties. However, recently there has been recognition of the critical role that effective fisheries governance can play in supporting human security – ie security defined in terms of people rather than States.10 So far security discourse seems limited mainly to understanding the relationship in terms of the indirect benefits of resource management on food security (ie a situation when all peoples, at all times, have physical and economic access to sufficient, safe and nutritious food that meets dietary needs and preferences for an active and healthy life).11 This does not quite capture the more complex relationship between fisheries and maritime security. Section 4 of this chapter reflects upon this, drawing out a more sophisticated understanding of security and showing that if we understand better the structural limits of security, however defined, we can start to navigate properly the relationship between security and fisheries. It is argued that we must, as a minimum, retain some context sensitivity and awareness of cause and effect between fisheries and security. The chapter does not aim to prove empirically the exact relationship between fisheries management and maritime security; this is an avenue for further research. Instead, the analysis is drawn in conceptual terms, with some illustrations used to show the need to maintain a threshold degree of ‘joined-up thinking’. In the final section we provide some examples of fisheries disputes to illustrate this relationship. This shows how poorly regulated and controlled fishing has frequently led to destabilising competitive harvesting. This may present risks to food security. But more than this, tensions associated with access to resources can form part of a more complex security scenario, which can soon spiral into more serious conflict and threats to human security. Examples include recent events such as the Anglo-French ‘Scallop War’ in 2018 and the South China Sea dispute. These flashpoints are more than surface ripples on the ocean.



United Nations Convention on the Law of the Sea 1982, 1833 UNTS 397. See D Estrada-Tanck, Human Security and Human Rights under International Law. The Protections Offered to Persons Confronting Structural Vulnerability (Hart 2016). 11 FAO, ‘Rome Declaration on World Food Security and World Food Summit Plan of Action’ (World Food Summit, 1996) [1]. 9

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They show the importance of understanding the security dimension of fisheries and of building legal and policy frameworks that are sensitive to this.

2.

CONCEPTS OF MARITIME SECURITY

A first challenge in any analysis of maritime security is to define the scope of enquiry: what is maritime security? A survey of the literature indicates that this is indeed something of a challenge. Often security is implicitly or explicitly addressed in the context of particular threats, including, inter alia: military activities,12 piracy,13 weapons trafficking,14 drug trafficking,15 people trafficking,16 and terrorist acts at sea.17 Some writers focus instead on forms of intervention against vessels engaged in different illegal activities.18 More recent literature seeks to synthesise security but has still struggled to define the concept: Bueger notes that it has no definite meaning.19 Certainly there There is extensive literature on military activities at sea: F Francioni, ‘Peacetime Use of Force, Military Activities, and the New Law of the Sea’ (1985) 18 Cornell International Law Journal 203; BA Boczek ‘Peace-Time Military Activities in the Exclusive Economic Zone of Third Countries’ (1988) 19 Ocean Development & International Law 455; AV Lowe, ‘Self Defence at Sea’ in WE Butler (ed), The Non-Use of Force in International Law (Dordrecht 1989); L Doswald-Beck, ‘The San Remo Manual on International Law Applicable to Armed Conflicts at Sea’ (1005) 89 American Journal of International Law 192; C Pirtle, ‘Military Uses of Ocean Space and the Law of the Sea in the New Millennium’ (2000) 31 Ocean Development & International Law 7; S Kaye, ‘Freedom of Navigation, Surveillance and Security: Legal Issues Surrounding the Collection of Intelligence from Beyond the Littoral’ (2005) 24 Australian Yearbook of International Law 93. 13 There is extensive literature on piracy. See for example, A Rubin, The Law of Piracy (2nd edn, Naval War College Press 1998); T Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 European Journal of International Law 399; J Kraska, Contemporary Maritime Piracy: International Law, Strategy, and Diplomacy at Sea (Praeger 2011); D Guilfoyle (ed), Modern Piracy. Legal Challenges and Responses (Edward Elgar Publishing 2013). 14 M Byers, ‘Policing the High Seas: The Proliferation Security Initiative’ (2004) 98 American Journal of International Law 526; D Guilfoyle, ‘Maritime Interdiction of Weapons of Mass Destruction’ (2007) 12 Journal of Conflict & Security Law 1. 15 WC Gilmore, ‘Drug Trafficking by Sea: The 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances’ (1991) 15 Marine Policy 183. 16 AT Gallagher and F David, The International Law of Migrant Smuggling (CUP 2013) ch 6. 17 Bueger (n 2). 18 D Guilfoyle, Shipping Interdiction and the Law of the Sea (CUP 2009); E Papastavridis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans (Hart 2013). 19 Bueger (n 2) 163. 12

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is no single, authoritative legal or policy definition of maritime security, and approaches to the concept vary in the legal literature. For example, Klein’s analysis defines security as an inclusive interest, common to all States.20 It encompasses a wide array of activities: … it is not only a range of military activities that may pose a threat to the security of the coastal state (such as weapons exercises, threats or use of force, or the launching, landing, or taking on board of any aircraft of military devices), but also includes fishing activities, willful and serious pollution, and research or survey activities.21

Kraska and Pedrozo define it as ‘a stable order of the oceans subject to the rule of law at sea’, an equally inclusive approach but one which is later dominated by issues of seapower, crime and shipping safety, with some concern for environmental issues.22 Within these studies, one can distil a common thread: of security as a common, inclusive concern. This is important because it speaks to an integrated understanding of security. However, this understanding can sometimes be lost within specific and, especially, sectoral institutional practices or approaches that have been commonplace in the law of the sea. Security can be fragmented because its meaning is often dependent upon the user: State, military, police, humanitarian organisation, resource manager and so on.23 It may also have regional or national dimensions, which emphasise particular issues or concerns, such as freedom of navigation or exclusive control of resources.24 In international policy documents, the favoured approach is to indicate what activities fall within the scope of maritime security. Here a functional or sectoral approach prevails. Thus the 2008 Report of the United Nations Secretary General on the law of the sea observes that there are seven elements to maritime security: piracy and armed robbery; terrorist activities involving ships; illegal weapons and weapons of mass destruction (WMD) trafficking; illegal trafficking of drugs; smuggling and people trafficking; IUU fishing; and N Klein, Maritime Security and the Law of the Sea (OUP 2011) 3. Ibid, 9. 22 J Kraska and R Pedrozo, International Maritime Security Law (Martinus Nijhoff 2013) 1. 23 C Trelawney, ‘Maritime Security Beyond Military Operations. A Civilian Perspective’ (2013) 158 The RUSI Journal 58. 24 See, for example, B Germond, The Maritime Dimension of European Security (Palgrave 2015); N Klein, J Mossop and DR Rothwell (eds), Maritime Security. International Law and Policy Perspectives from Australia and New Zealand (Routledge 2010); S Wu and K Zou (eds), Maritime Security in the South China Sea (Routledge 2016); S Febrica, Maritime Security and Indonesia (Routledge 2017); MA Morris, Caribbean Maritime Security (Martin Press 1994); K-D Ali, Maritime Security Cooperation in the Gulf of Guinea (Brill 2015). 20 21

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harm to the marine environment.25 This is echoed in regional policies on maritime security. The EU position tends to be highly inclusive of security threats, including cross-border crime, threats to the environment and marine resources, border security and migration, and military activities,26 and the African Union takes a similarly integrative approach.27 However, this is not universal and just as the meaning of security is contested, so too is the inclusion of different kinds of threat. Indeed, fisheries are not universally accepted as part of a maritime security paradigm. The integration of fisheries matters, such as IUU fishing, into regional policies has sometimes been met with resistance.28 Klein refers to ‘the 2008 meeting of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea (UNICPOLOS), [where] state representatives contested the inclusion of IUU fishing as a threat to maritime security’.29 This reflects the reality of State practice where States adopt different maritime security approaches that manifest different levels of sophistication, depending upon their political capacity, size, maritime presence and foreign policy perspective.30 These perspectives can pull in different directions. For example, the US National Security Strategy focuses predominantly upon traditional threats of border protection, transport security and maritime capacity,31 whereas other States place added emphasis on the availability of fishery resources for food needs. In this respect, Section 2(a) of the Philippine Fisheries Code 1998 identifies ‘food security as the overriding consideration in the utilization, management, development, conservation and protection of fishery

25 UNGA, ‘Oceans and the Law of the Sea: Report of the Secretary-General’ (10 March 2008) UN Doc A/63/63, [39]. 26 See Council of the European Union, European Union Maritime Security Strategy, Brussels (2014) Doc 11205/14. 27 African Union, African Integrated Maritime Strategy, Addis Ababa (2014). See also the African Charter on Maritime Security and Safety and Development in Africa (2016) Articles 1, 3 and 4 (Lomé Charter). 28 See Bateman (n 4) 3. 29 Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its ninth meeting; Letter dated 25 July 2008 from the Co-Chairpersons of the Consultative Process addressed to the President of the General Assembly, UN Doc A/63/174 Part B, [70]–[71]. 30 See S Bateman, ‘Conclusion: Identifying Common Maritime Challenges and Priorities’ in JH Ho and S Bateman (eds), Maritime Challenges and Priorities in Asia. Implications for Regional Security (Routledge 2012) 302–303. 31 National Security Strategy of the United States of America, December 2017, available at https://​www​.whitehouse​.gov/​wp​-content/​uploads/​2017/​12/​NSS​-Final​-12​ -18​-2017​-0905​.pdf.

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resources in order to provide the food needs of the population’.32 Similarly, the Namibian Marine Resources Act 2000 refers to food security as a factor when considering applications for rights to harvest marine resources.33 There are no comprehensive reviews of national policy or legislation; this may be something worthy of future enquiry. Our research finds that some studies indicate that associations between security and fisheries in domestic frameworks are generally focused on security of food supplies.34 However, it is increasingly apparent that the relationship between fisheries and security is complex and it has been suggested that an increasing number of States are broadening their security agendas to include fisheries.35 For example, in Vietnam such broadening responds to an increased perception of fisheries as a factor associated with non-traditional threats such as environmental degradation, illegality at sea and the rapidly changing maritime policies of neighbouring States.36 Similarly, Indonesia has also overseen an evolution in maritime security strategies, which responds to more sophisticated understandings of security that include overfishing, illegal fishing and associated crimes.37 The UK National Strategy for Maritime Security considers the relationship between different activities: The NSS emphasised the importance of tackling problems early and at source, rather than waiting until they manifest themselves closer to the UK. In this spirit, the strategy incorporates efforts overseas to prevent maritime security threats from occurring. This includes action to support the development of maritime security capabilities amongst partner nations. For example, the development of fishery protection capabilities can help to safeguard legitimate livelihoods for coastal communities in developing countries, and prevent them turning to illegal activities such as piracy, maritime crime or smuggling.38

Again, this speaks to a more sophisticated notion of security. 32 Also, the Philippine Agriculture and Fisheries Modernization Act 1997 refers to food security as ‘the availability, adequacy, [sic] accessibility of food supplies to all at all times’ (Sections 2 and 3). 33 Sections 31(1) and 33(4)(k). 34 A Skonhoft and A Gobena, Fisheries and the Right to Food. Implementing the Right to Food in National Fisheries Legislation (FAO 2009). 35 J Bergenas, and A Knight, ‘Secure Oceans: Collaborative Policy and Technology Recommendations for the World’s Largest Crime Scene’ (Stimson 2016) 3, available at https://​www​.stimson​.org/​sites/​default/​files/​file​-attachments/​SecureOceans​-Sep2016​ .pdf. 36 AD Ton, ‘Vietnam’s Maritime Security Challenges and Regional Defence and Security Cooperation’ (2018) 14 Soundings 7, 16. 37 Chapsos and Malcolm (n 8) 178. 38 The UK National Strategy for Maritime Security (2014) available at https://​assets​ .publishing​.service​.gov​.uk/​government/​uploads/​system/​uploads/​attachment​_data/​file/​ 310987/​20140508​_NSMS​.pdf, [4.6].

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Of course, individual approaches to defining the problem are driven by political priorities of States; they do not reveal the full spectrum of complex cause-and-effect relationships behind each activity. This tends to be the domain of scholarly writing. More nuanced approaches to maritime security have been put forward in the literature. Foremost among these is that of Bueger, who presents an inclusive matrix of maritime security and the potential interrelationships of its different components.39 Broadly stated, Bueger analyses maritime security in terms of national security (seapower), economic security (‘blue economy’), human security and environmental security. Seapower is perhaps the traditional conception of maritime security, as associated with naval power. This is the capacity to project power at sea through military assets, an extension of State authority to secure strategic interests, typically including navigational rights and the prevention of criminal activity at sea. Economic security is about providing a stable and secure basis for activities at sea. The oceans have an economic value not only for trade and extractive resources, but also for the wider range of ecosystem goods and services they provide. There is a symbiotic relationship between resources and societal needs. Supplying necessary resources can provide security but some degree of security is also required in order to ensure marine resources can be harvested and used. Environmental Security is about preventing pollution and harm to natural resources. This is achieved directly through controls on discharges of pollution, the protection of marine habitats, and rules governing responses to pollution incidents, and indirectly through safety and operational controls on shipping. Fish stocks form part of the wider marine ecosystem so fall within this aspect of security. Human security is an alternative way of conceiving of security. Emerging out of United Nations Development Programme policies of the 1990s, it emphasises human rather than State concerns. For Bueger, the ‘Core dimensions of human security concern food, shelter, sustainable livelihoods and safe employment’.40 Human security clearly accommodates an interest in sustainable fisheries management. These dimensions of security are both connected and dynamic: ‘Maritime security organizes a web of relations, replaces or subsumes older, established concepts, as well as relates to more recently developed ones.’41 This brief overview of policy positions and key literature is intended to show some of the basic complexities and dynamics: the tension between the functional and conceptual; differences between inclusive and exclusive definitions of security, and between academic and policy approaches; and of the

Bueger (n 2). Ibid, 161. 41 Ibid, 160. 39 40

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different practices impacting on security. Given these tensions, what is the best way to navigate these complexities?

3.

FISHERIES AND SECURITY: THE LEGAL FRAMEWORK

The concepts of maritime security and, in particular, human and environmental security are connected to fisheries regulation and management. Fisheries management is a large, complex field and it is not possible to present anything more than a schematic outline of international fisheries law. Instead, this section outlines the relationship between fisheries and security in two parts, the first focusing on those areas where there is some direct or indirect regulatory interface between fisheries and security issues. This shows the general connection between fisheries and maritime security and, in particular, the potential overlap between food security (through well-managed fisheries) and wider maritime security concerns (eg order at sea). It also shows how this relationship remains underdeveloped. The second part outlines how maritime jurisdiction enables security through enforcement activities. By way of context, international fisheries law forms part of a broader package of rules governing the use of the oceans under the LOSC, which has a largely indirect concern for security. Its preamble states: The codification and progressive development of the law of the sea achieved in this Convention will contribute to the strengthening of peace, security, cooperation and friendly relations among all nations in conformity with the principles of justice and equal rights and will promote the economic and social advancement of all peoples of the world …42

Beyond this, security is considered expressly only in the context of innocent passage,43 ‘general conduct’ in the Area,44 and in a provision that limits the disclosure of information vital to national security.45 There are further references to security in the context of prompt release of vessels but this is a different kind of security in the sense of a financial bond rather than something linked to threat or danger. Our concern is with maritime security at large – as a threat to order at sea and the well-being of humans and the environment that supports them, so we need to think beyond the mere text of LOSC.46 LOSC, preamble. LOSC, Articles 19, 25 and 52. 44 LOSC, Article 138. 45 LOSC, Article 302. 46 For a discussion on the interplay between maritime security and LOSC, see Chapter 1 of this volume. 42 43

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Food Security in Fisheries Law and Policy

LOSC frames fisheries principally in terms of conservation and management. Security is not mentioned in the LOSC at all in the context of management of resources, yet some elements are entirely consistent with food security, even if not framed in such terms.47 Thus maximum sustainable yield of catches and optimum utilisation both seek to enhance facilitation of food supplies. Certain aspects of the LOSC emphasise due regard in the exercise of rights.48 The importance of adequate fishery conservation and management is a notion that underpins a number of the LOSC’s provisions.49 For example, Article 62 requires a coastal State, when determining foreign access to its exclusive economic zone (EEZ), to have regard to ‘the significance of living resources to the economy of the coastal State concerned and its other national interests’ and ‘the need to minimize the economic dislocation of States whose nationals have habitually fished in the zone’. Whilst discretionary and non-exhaustive, such provisions do underpin both economic security and general security by acknowledging wider interests that frame questions of access to resources. This is echoed in Article 59, which indicates that in cases of non-attributed rights, and where conflict arises, this should be ‘resolved upon the basis of equity and in light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole’. Other provisions show an indirect concern with security more generally – or at least conflict management. Within fisheries law more generally, the scope of fisheries regulation has expanded from simple gear and effort controls, to interface with other rule regimes concerning protection of the marine environment, access to port, trade in seafood products, maritime labour standards and human rights, and transnational crime.50 Indeed, this drive to connectivity has been a critical feature of negotiation of an agreement for the conservation and sustainable management of marine biodiversity in areas beyond national jurisdiction.51 These developments are important because they signal the need to consider the wider See N Van Der Brught, The Contribution of International Fisheries Law to Human Development. An Analysis of Multilateral and ACP-EU Fisheries Instruments (Martinus Nijhoff 2013). 48 LOSC, Articles 56(2), 58(2) and 60(3). 49 J Kraska, ‘The Lost Dimension: Food Security and the South China Sea Disputes’ (2015) Harvard News Journal [online] 1. 50 See further the essays in R Caddell and EJ Molenaar (eds), Strengthening International Fisheries Law in an Era of Climate Change (Hart 2019). 51 R Barnes, ‘The Proposed LOSC Implementation Agreement on Areas Beyond National Jurisdiction and Its Impact on International Fisheries Law’ (2016) 31 International Journal of Marine and Coastal Law 583. 47

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systemic connections between activities. They necessarily drive fisheries and security matters closer. The general link between fishing and security is reiterated in the 1995 Fish Stocks Agreement (UNFSA), which states in its preamble:52 ‘Convinced that an agreement for the implementation of the relevant provisions of the Convention would best serve these purposes and contribute to the maintenance of international peace and security’. A similar connection is made in the 2009 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA), which states in its preamble: ‘Deeply concerned about the continuation of illegal, unreported and unregulated fishing and its detrimental effect upon fish stocks, marine ecosystems and the livelihoods of legitimate fisheries, and the increasing need for food security on a global basis’.53 However, the specific implications of good fisheries management for wider maritime security are at best implicit. The relationship between fisheries and security is perhaps better drawn out in soft law instruments, particularly those that have associated fishery management with considerations of human or food security. Food security emerged as a specific focus of international policy in the 1970s.54 Its broad focus on ensuring food supplies and managing market fluctuations developed into a range of more detailed initiatives. Ninety-five States participated in the International Conference on the Sustainable Contribution of Fisheries to Food Security in 1995, which resulted in the adoption of the Kyoto Declaration.55 The broad systemic connections between fishing security, environmental protection and trade were made clear in paragraph 20: Ensure that trade in fish and fishery products promotes food security, does not result in environmental degradation or adversely impact the nutritional rights and needs of people for whom fish and fishery products are critical to their health and well-being, does not undermine applicable global, regional and subregional conservation and management measures and is conducted in accordance with the principles, rights and obligations established in the World Trade Organization (WTO) Agreement.

United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995) 2167 UNTS 88 (emphasis added). 53 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2009) UN Registration Number 54133 (emphasis added). The agreement later indicates the need for security training for inspectors but is otherwise silent on security. 54 United Nations, Report of the World Food Conference, Rome 5–16 November 1974 (New York 1975). 55 Available at http://​www​.fao​.org/​3/​ac442e/​AC442e3​.htm​#. 52

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The same year, the Code of Conduct for Responsible Fisheries of the Food and Agriculture Organization (FAO) (FAO Code of Conduct) reiterated the connection between fisheries and food security: ‘Fisheries management should promote the maintenance of the quality, diversity and availability of fisheries resources in sufficient quantities for present and future generations in the context of food security, poverty alleviation and sustainable development.’56 In 1996, the Rome Declaration on World Food Security committed to ‘pursue participatory and sustainable food, agriculture, fisheries, forestry and rural development policies and practices in high and low potential areas, which are essential to adequate and reliable food supplies at the household, national, regional and global levels’.57 Interestingly, the Declaration draws out the connection between food security and conflict but only frames conflict in terms of security as a cause of food insecurity.58 It does not recognise the role that secure food (and fisheries) may have in preventing conflict. Food security is an end goal rather than a factor within a more secure political order. The link between fisheries management and food security was further emphasised in the Rome Declaration on the Implementation of the FAO Code of Conduct for Responsible Fisheries 1999,59 and the Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem 2001, which confirmed that ‘the objective of including ecosystem considerations in fisheries management is to contribute to long-term food security and to human development’.60 The 2001 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA IUU) specifically refers to the importance of fisheries for food security, noting that IUU fishing and failed management can lead to ‘the loss of both short and long-term social and economic opportunities and to negative effects on food security and environmental protection’.61 The IPOA is concerned specifically with fishing in contravention of law, or which is unregulated per se. The IPOA IUU focuses on deterrent strategies, principally through calling for effective control over flag vessels, cooperation, information-sharing and coordinated action. A year later, fishing was again connected to broader human security and sustainable development in the Plan of Implementation of the World Summit on Sustainable

Article 6(2), FAO Code of Conduct for Responsible Fisheries 1995, available at http://​www​.fao​.org/​fishery/​code/​en. See also Article 6(18). 57 Available at http://​www​.fao​.org/​3/​w3613e/​w3613e00​.htm. 58 Ibid, Objectives 1.1(e), and 5.1. 59 Available at http://​www​.fao​.org/​3/​X2220E/​X2220E00​.htm, [2] and [3]. 60 FAO, Report of the Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem. Reykjavik, Iceland, 1–4 October 2001. FAO Fisheries Report No 658 (FAO, 2002) available at http://​www​.fao​.org/​3/​y2198t/​y2198t01​.htm. 61 Available at http://​www​.fao​.org/​3/​a​-y1224e​.pdf. 56

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Development. Here a secure resource basis is seen as fundamental to social and economic development. More specifically, ‘[o]ceans, seas, islands and coastal areas form an integrated and essential component of the Earth’s ecosystem and are critical for global food security and for sustaining economic prosperity and the well-being of many national economies, particularly in developing countries’.62 The association between appropriate conservation and management of fisheries and the attainment of food security as a human objective cannot be addressed in its entirety without reference to human rights and, in particular, the eradication of hunger. In 2015, FAO Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries (Small-Scale Guidelines or Guidelines) complemented the FAO Code of Conduct, with a specific goal of enhancing the position of more vulnerable groups and parts of the fishing sector.63 The Guidelines firmly locate fisheries within the wider paradigm of food security: ‘The objectives of these Guidelines are: a) to enhance the contribution of small-scale fisheries to global food security and nutrition and to support the progressive realization of the right to adequate food.’64 A number of guiding principles are contained in Section 3 of the Small-Scale Guidelines, which are critical to the existence and exercise of a right to food. These include the adoption of a rules-based approach to management, transparency, public agency accountability, respecting fishing communities, promoting justice and fair treatment, and consultation and participation. They all point to the importance of engagement between the most directly affected community and authority stakeholders and the rules established for the conservation and management of the resource as a fundamental pillar to ensure ongoing, sustainable security. Since 2003 the annual General Assembly resolutions on sustainable fisheries have connected sustainable fisheries to food security.65 The most recent Resolution makes 31 such references, systematically linking the two concepts

62 Report of the World Summit on Sustainable Development 2002 Johannesburg, South Africa, 26 August–4 September 2002 (United Nations publication, Sales No E.03.II.A.1 and corrigendum), ch. I, resolution 2, annex, [30]. 63 FAO, Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries (FAO 2015). 64 Ibid, [1.1] (Objectives). Also, [5.2] and [5.8] (governance of tenure, access and redistributive reform), [7.4] and [7.8] (security through value chain development and market controls), [9.2] (disaster risks and climate change), [10.1] (policy coherence, institutional coordination and collaboration), [11.9] (information, communication and research), and [13.4] capacity support and monitoring. 65 UNGA Res 58/14, adopted 23 December 2003. UN Doc A/Res/58/14, 21 January 2004.

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throughout the whole of its text.66 The contribution of fisheries to food security is also underlined in the 2018 FAO State of the World’s Fisheries and Aquaculture Report.67 The inclusion of fisheries in the food security agenda set out by the UN as part of its Sustainable Development Goals programme for 2030 is highlighted in the report,68 as is the effect of IUU fishing activities in exacerbating situations of insecurity, and the need to address them as an integral part of fisheries governance.69 This connection between fisheries and food security is echoed in a range of regional instruments. The objective of the Southern African Development Community Protocol on Fisheries 2001 is to: ‘promote responsible and sustainable use of the living aquatic resources … [to] (a) promote and enhance food security and human health; and [to] (b) safeguard the livelihood of fishing communities …’.70 The Fourth EU Africa Summit Declaration (2014) states: ‘We will also pay special attention to the issue of maritime security including counter piracy efforts, the fight against Illegal, Unregulated and Unreported fishing within the framework of the African Integrated Maritime Strategy 2050 and the EU Integrated Maritime Policy, and against toxic waste dumping.’71 Interestingly, the EU Common Fisheries Policy addresses food security only in the context of aquaculture.72 As already discussed in Section 2, some States have explicit references to food security in their fisheries legislation. Again, this firmly locates fishing within a collective human security domain. Some key points can be drawn from this overview. First, the primary responsibility lies on States to ensure food security. So far, this has been manifest in broad policy changes rather than in binding rules, domestically or internationally. Second, the linkages between fisheries and human security have intensified in the last couple of decades. This has drawn into fisheries management the language and culture of human rights. For example, the FAO defines food security as follows: ‘food security exists when all people, at all

66 UNGA Res 73/125, adopted 11 December 2018. UN Doc A/Res/73/125, 15 January 2019. 67 FAO, State of World Fisheries and Aquaculture (FAO 2018) 113. 68 Ibid, 77. 69 Ibid, 82. 70 Article 3, available at https://​www​.sadc​.int/​files/​8214/​7306/​3295/​SADC​ _Protocol​_on​_Fisheries​.pdf. This is a protocol to the Treaty of the Southern African Development Community 1992, as amended. It has 15 participating African/Indian Ocean States, available at https://​www​.sadc​.int/​documents​-publications/​sadc​-treaty/​. 71 Available at https://​www​.consilium​.europa​.eu/​media/​21520/​142094​.pdf, [14]. See also [57]. 72 Preamble, [53] and Article 34 of Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, OJ L 354, 28.12.2013, 22–61.

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times, have physical, social and economic access to sufficient, safe and nutritious food that meets their dietary needs and food preferences for an active and healthy life’.73 The language is inclusive (‘all people’) and speaks to qualities of inherency (‘at all times’) and is linked to fundamental physical, social and cultural conditions. As Barnes has argued elsewhere, this can result in a cross-fertilisation of ideas and shift the interpretative framework of LOSC.74 This alters how fisheries policy is shaped, expanding it from a more narrowly focused sectoral concern to one connected to wider human rights values. Third, despite such developments, the link between fisheries and security remains largely limited to a food security framework. Apart from the references to IUU fishing and some criminal activity, fisheries remain only loosely connected to wider security concerns. Although this connection now seems axiomatic, the link between sustainable fisheries and wider security concerns remains unfulfilled. For example, the omnibus Resolution on Oceans and Law of the Sea still treats fisheries and maritime security as discrete topics, crossing over only in respect of fishers as the target of forced labour or the victims of piracy.75 Whilst the impact of conflict on food security is important, there is little appreciation of how secure, well-managed fisheries can contribute to broader maritime security. As discussed below, this is likely to require more fundamental changes to legal instruments to ensure that the core facets of human and wider maritime security are a feature of fisheries laws. 3.2

Jurisdiction and Maritime Security

Maritime security depends upon comprehensive and well-defined jurisdictional frameworks over activities at sea. A clear jurisdictional framework is also required for fisheries management, and if lacking or not respected, can result in disputes and insecurity, as in the cases of Fisheries Jurisdiction (Spain v Canada), Fisheries Jurisdiction (UK v Iceland) and Anglo-Norwegian Fisheries.76 The severe depletion of fish stocks and encroachment of foreign

FAO 2018 (n 67) 113. R Barnes, ‘The Continuing Vitality of LOSC’ in J Barrett and R Barnes (eds), The United Nations Convention on the Law of the Sea: A Living Instrument (BIICL 2016) 459. 75 UNGA Res 73/124, adopted 11 December 2018. UN Doc A/Res/73/125, 31 December 2018, [110] and [127] respectively. 76 Fisheries Jurisdiction case (Spain v Canada) (1998) ICJ Rep 432; Fisheries Jurisdiction case, (United Kingdom of Great Britain and Northern Ireland v Iceland), Merits (1974) ICJ Rep 4, [41]; Fisheries Jurisdiction case (UK v Norway) (1951) ICJ Rep 116. 73 74

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fishers in culturally and economically sensitive areas, particularly if stocks are perceived as being overexploited, is a delicate matter and one that States managing living resources or regulating the activities of fishing vessels should take seriously. Insofar as these incursions may represent a threat by non-traditional actors, they require a robust response framework upon which to underpin intelligence activity and related security or emergency responses by enforcement agencies. This presents complex problems of resourcing and coordination and highlights the importance of State investment in maritime domain awareness and surveillance and control approaches, combined with adequate legal frameworks and enforcement powers and capabilities.77 At least in the territorial sea, fisheries and security are connected legally in terms of basic jurisdictional rights. The LOSC confirms coastal State sovereignty over the 12 nautical miles of the territorial sea, albeit conditioned by the right of innocent passage.78 As a zone of sovereignty, coastal States have jurisdiction in respect of security matters. They also enjoy jurisdiction over fisheries in the territorial sea. Notably, the conduct of unauthorised ‘fishing activities’ in the territorial sea by foreign vessels shall be considered prejudicial to the peace, good order and security of the coastal State.79 Accordingly, the coastal State is permitted to adopt laws to regulate innocent passage of foreign vessels, to prevent infringements of fisheries laws,80 and to take enforcement measures against vessels engaged in illegal fishing activity.81 In contrast with the EEZ, the detail of fisheries provisions in the territorial sea is quite basic. This means that the coastal State has considerable discretion as to the management of fisheries in that area.82 Exclusivity of jurisdiction can contribute to security by removing scope for disputes between domestic and foreign fishing. However, States do permit foreign access to such waters. Experience indicates that where foreign fishing is permitted in the territorial sea, the absence of a clear legal basis for this, and fair access and management provision, can give rise to disputes and wider tensions. This has occurred in respect of the Ireland–UK voisinage agreement, which was unilaterally suspended by Ireland over concerns about excessive fishing for mussel seed by

D Guilfoyle, ‘Maritime Law Enforcement Operations and Intelligence in an Age of Maritime Security’ (2017) 93 International Law Studies 298, 301. 78 LOSC Article 2, and Articles 17–26 respectively. 79 LOSC, Article 19(2)(i). 80 LOSC, Article 21(1)(e). 81 LOSC Articles 25 and 27. See further commentary on these articles by R Barnes in A Proelss (ed), United Nations Convention on the Law of the Sea (CH Beck 2017). 82 E Hey, ‘The Fisheries Provisions of the LOS Convention’ in E Hey (ed), Developments in International Fisheries Law (Kluwer Law International 1999) 20. 77

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vessels from Northern Ireland,83 and has since exacerbated tensions related to fishing as part of the UK steps to withdraw from the EU. The connection between security and fisheries in the EEZ is less clear because LOSC is silent on security matters in the EEZ. As Stephens and Rothwell argue, it is unclear whether these provisions are suitable for dealing with a wide range of security issues.84 They note that Articles 56 and 58 contain reciprocal due regard commitments but it is unclear whether security incursions by a foreign power to undertake naval manoeuvres or to conduct survey or surveillance activities are permitted by LOSC.85 In contrast it is clear that coastal States enjoy exclusive sovereign rights for the purpose of exploring and exploiting marine resources.86 To the extent that activities have a fisheries dimension, they would be covered by Article 58 powers. However, in practice, the scope of such powers has been narrowly interpreted and this may hamper the proper interface of fisheries and maritime security. This is manifest in prompt release cases under Article 73. Whilst sensitive to some human rights concerns and the wider balance of interests at play within LOSC, decisions of the International Tribunal for the Law of the Sea (ITLOS) contain some ambiguity with regard to the potential security dimension of excessive or damaging fishing activity. On the one hand, in M/V Saiga (No 2), the tribunal rejected Guinea’s claim to control the application of domestic tax and customs provisions concerning bunkering activities in its EEZ, which Guinea had defended on the basis that such bunkering activities might be contrary to its public interests.87 On the other hand, in M/V Virginia G, the tribunal acknowledged the authority of coastal States to regulate bunkering activities in the EEZ where they form an integral part of fishing operations,88 but denied that such authority extends to the application of tax and customs provisions.89 In the Norstar case the tribunal dealt with bunkering activities on the high seas, in respect of which it affirmed the limits of the coastal State’s jurisdiction in the application of its customs and criminal law to such activities, holding CR Symmons, ‘Recent Developments in Ireland: The Voisinage Doctrine and Irish Waters: Recent Judicial and Legislative Developments’ (2018) 49 Ocean Development & International Law 79. 84 T Stephens, and DR Rothwell, ‘The LOSC Framework for Maritime Jurisdiction and Enforcement 30 Years On’ (2012) 27 International Journal of Marine and Coastal Law 701, 705. 85 Ibid. 86 LOSC, Article 56(1)(a). 87 M/V Saiga (No 2) (Saint Vincent and the Grenadines v Guinea), Judgment of 1 July 1999, 1999 ITLOS Reports [130–136]. 88 M/V ‘Virginia G’ (Panama v Guinea Bissau), Judgment (2014), 2014 ITLOS Reports p. 4, [215], [223] and [229]. 89 Ibid, [232] and [233]. 83

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such application to be a breach of Article 87 of LOSC (even when enforcement occurred within internal waters).90 A Joint Dissenting Opinion adopted a more nuanced view, recognising that a criminal scheme existed involving, first, the purchase of bunker fuel in Italy, second, fuel provisioned on the high seas, and then, third, reintroduced to Italy on the supplied boats.91 The first and third parts constituted a crime occurring in Italy’s territory and so were susceptible to enforcement jurisdiction. In the Juno Trader case, the tribunal stated that ‘[t]he obligation of prompt release of vessels and crews includes elementary considerations of humanity and due process of law’.92 However, despite accepting that considerations of a humanitarian nature were relevant to the question of prompt release, the tribunal has resisted accommodating a wider range of environmental concerns. Thus, in the Volga case, the tribunal resisted the broadening of security conditions under Article 73 to include a ‘good behaviour’ bond in order to control the risk of a vessel’s re-engaging in illegal fishing for Patagonian Toothfish.93 The wider notion of public interests underlying such claims could open the door to abuse and risk upsetting the balance of interests in the Convention.94 Such concerns were also at play in the Tomimaru case, where the tribunal held that the power to confiscate a fishing vessel ‘must not be used to upset the balance of interests of the flag State and the coastal State’.95 Clearly, it is appropriate to take account of the wider balance of interest at play when construing specific legal commitments. The maintenance of this balance was also at the heart of the Norstar case.96 These cases raise questions about how far we can and should take account of the increased connection between fisheries and maritime security more generally. Aside from any question of the legal basis for exercising jurisdiction over security matters, it is important to acknowledge that in practical terms jurisdiction will be exercised on the basis of intelligence. Information about the nature, scale and origin of an activity will determine response measures. Such information, particularly in the context of fisheries, can be difficult to acquire and utilise. As Guilfoyle indicates, the freedom of navigation means that the coastal State does not have an automatic right to demand security-related infor M/V ‘Norstar’ (Panama v Italy) Judgment of 10 April 2019, [224]–[225]. Ibid, Dissenting Opinion, [32]. 92 ‘Juno Trader’  (Saint Vincent and the Grenadines v Guinea-Bissau) (Prompt Release Judgment of 18 December 2004), ITLOS Reports 2004, [77]. 93 See Volga (Russian Federation v Australia) Prompt Release [2002] ITLOS Reports 10, where the tribunal restricted the meaning of Article 73 to rule out good behaviour bonds, [80]. 94 M/V Saiga (No 2) (n 87) [130]–[131]. 95 ‘Tomimaru’ (Japan v Russia) (Prompt Release, Judgment of 6 August 2007), ITLOS Reports 2007, [75]. 96 Norstar (n 90) [215]–[230]. 90 91

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mation from a passing vessel, barring agreement with the flag State.97 This may be facilitated by flag State due diligence obligations, which require flag States to ensure vessels flying their flag do not engage in IUU fishing activities.98 Arguably this extends to the provision of information to the State or agency responsible for managing the fish stock. The importance of furnishing information on fishing activities to the regulating State cannot be overestimated because without it their de facto control is weakened.99 As stated by the tribunal in the South China Sea Arbitration Award, fishing activities are generally carried out away from the presence of authorities, and those of an illicit nature will typically be covert.100 The challenge of ensuring transparent and regular engagement between vessels and authorities can therefore be significant and this may create voids in the perception of authority, particularly in areas where illegal, unregulated or otherwise undesirable operations are taking place. Surveillance of activities targeted at fishing are nevertheless contained within the due regard rights of the coastal State under Article 58(3) and could only be entertained by a foreign power in response to a request for cooperation by the coastal State authorities. Nevertheless, initiating such a request for cooperation would rest on the capabilities of the coastal State to access information regarding the activities and/or occupants of the vessels. The due regard provisions set out in the LOSC require foreign fishing vessels to comply with the domestic law of the coastal State, which under Article 62 may include the provision of information. Nevertheless, ascertaining the extent to which these obligations have been breached will largely depend on the monitoring and surveillance capabilities of the coastal State. Paradoxically, the availability of information critical to enable decisions on the deployment of costly and often limited naval resources is contingent on the existence and deployment of such resources. In fisheries matters, however, access to information and procedures for boarding and inspection have been established by the UN FSA and the PSMA. The UNFSA establishes a blueprint for cooperation that is centred on the regulatory activity of regional fisheries management organisations (RFMOs) and which enables a common approach to prescription and enforcement across fleets of different nationalities that operate in regulated areas, and target straddling and highly migratory species. In this regard, Articles 7 and 8 of the Agreement set out a blueprint for compatibility and a common approach to Guilfoyle (n 77) 305. See Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, [124]. 99 This was highlighted in the South China Sea Arbitration, Award, 12 July 2016, [745]. 100 Ibid, [754]. 97 98

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conservation and management of regulated resources that spans the high seas as well as coastal States that are members of RFMOs. Of particular relevance from the perspective of maintaining the legal order in the context of these multinational communities of operators are the two sets of provisions contained in Articles 18 and 19 with regard to the duties of the flag State, and the compliance cooperation provisions set out in Articles 20 to 22. First, Article 18 requires States to ensure that vessels are not authorised to fish unless compliance can be maintained by means of traditional control approaches such as licences, authorisations and other prescriptive activity. In addition, certain data requirements, such as the recording of fishing vessels and authorisations, fishing vessel and gear marking, data recording for operational and catch data and verification methods are established. Monitoring, control and surveillance (MCS), the regulation of transhipment, and compatibility with RFMO monitoring control and surveillance (MCS) rules are also covered by Article 18. In addition, Article 19 requires the flag State to enforce domestic and RFMO regulations irrespective of where the violation took place, immediately investigating allegations, compelling fishing vessels to release relevant information to foreign investigating authorities, take detention and enforcement action where evidence of infraction exists, and prevent any subsequent fishing activities until sanctions have been honoured. Investigations and judicial proceedings are to be expeditious and sanctions appropriate in severity to the infraction. International cooperation in enforcement is covered in Article 20, which is concerned in particular with the establishment of cooperative assistance protocols for the enforcement of RFMO measures. Article 21 establishes a protocol for the boarding and inspection of vessels flagged to parties of the UNFSA independently of RFMO membership, a provision that is far reaching in respect of access to intelligence data. Procedures for boarding and inspection must be compliant with RFMO protocols or otherwise be conducted in accordance with the process established in Article 22. Article 21 includes measures on the preservation of evidence and the notification to the flag State by the investigating State, as well as a procedure for the conduct of on-board inspections and guarantees of proportionality. An important provision of Article 21 of the UNFSA is 21.11, whereby a common framework of violations is set out so that clarity as to what constitutes a serious infraction is shared across the relevant communities of regulators, economic actors and law enforcers. Finally, Article 22 contains important duties that flag States must establish with regard to compliance by vessel masters with inspection procedures and the treatment of inspectors on board, as well as enforcement powers in cases of insubordination. The importance of effective enforcement strategies is reinforced by broken windows theory, which suggests that in contexts where there is physical and

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social disorder, criminality may emerge as a consequence unless enforcement and other actions conducive to compliance are taken by key actors in a manner that is sufficiently visible to a community and that is capable of engaging its members.101 In other words, if people see one norm being violated without consequence, they are more likely to violate others.102 For fisheries, this perspective suggests that the presence and visibility of implementation and compliance mechanisms (eg fisheries patrols) and stakeholder engagement in compliance strategies and enforcement efforts (eg electronic surveillance) are important to ensure the maintenance of maritime order and prevent the emergence of disruptive and crime-fostering actors. Hence, having a degree of clarity and awareness of regulatory standards, as well as related enforcement mechanisms, is important in order to establish a culture of regulatory visibility and avoid the breakdown of the legal order. The difficulties and cost of carrying out compliance operations at sea means that boarding and inspection procedures are unlikely to be undertaken lightly, even in cases where an infraction is suspected. Nevertheless, the UNFSA establishes in Article 23 complementary mechanisms whereby port States not only can exercise a right to take certain compliance measures, but in fact have a duty to do so. Such measures may include the inspection of documents, gear and catch and the prohibition of landings and transhipment but do not extend to punitive provisions more commonly associated with security responses, such as the application of criminal sanctions. Engagement of stakeholders with the regulatory framework in matters of implementation and compliance is also a feature of the PSMA. In particular, Article 8 and Annex A of this agreement establish a framework for the provision of information to port authorities before the port facilities can be accessed. These requirements signal to actors in the fishing communities fishing in internationally shared areas that compliance information is a necessary part of routing operations, without which vital port-based resources may be denied to the vessel and those on board,103 unless in the context of a distress or force majeure event,104 or in matters essential to the health of the crew or the safety of the vessel.105 Similarly, the PSMA establishes a regime for inspections in port, which add a considerable level of visibility to compliance activities as

JQ Wilson and GL Kelling, ‘Broken Windows: The Police and Neighborhood Safety’ (1982) 211 Atlantic Monthly 29. 102 K Keiser, S Lindenberg and L Steg, ‘The Spreading of Disorder’ (2008) 322 Science 1681. 103 PSMA, Articles 9 and 11.1. 104 PSMA, Article 10. 105 PSMA, Article 11.2. 101

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an integral part of the fishery operation.106 In addition, the PSMA imposes corresponding obligations on flag States, whereby a regime for cooperation with port State parties is to be established, the effect of which is to ensure a coherent system of inspections and compliance that may be implemented complementarily by States in their different capacities.107 Moreover, conflicts over fisheries are often associated with resources which are considered to be vulnerable to harm or overexploitation, or which coastal or fishing communities perceive as threatened. In order to ensure maritime security, consideration needs to be given to the vulnerable status of fish stocks or habitats and, indeed, the perception of threats to such resources. This should be factored into decisions as to how existing prescriptive and enforcement action is taken under existing legal frameworks. The special nature of these fisheries has been reflected in certain international legal provisions. In particular, LOSC Article 194(5) establishes a duty on States to take, individually or jointly, all measures necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life. In the Chagos Marine Protected Area Arbitration award, the tribunal observed that the Part XII provisions of LOSC are not restricted to pollution measures.108 The implication of this is that destructive fishing activities that impact upon rare, fragile or depleted species fall within the scope of this LOSC provision. In the South China Sea Arbitration Award, the tribunal confirmed this interpretation, underlining the due diligence duty of States to inter alia prevent the direct harvesting of threatened species, or to protect their habitat.109 In line with other LOSC provisions, the thrust of Article 194(5) is the protection of the marine environment and it does not extend to considerations of human security. Nevertheless, this provision may be usefully interpreted as being of a preventative nature, implying a need to prioritise State intervention in situations of active environmental degradation by non-State actors. Fishing is thus connected to environmental security.

4.

LINKS BETWEEN DIFFERENT SECURITY THREATS

As discussed in Section 2, maritime security is a complex and contested concept, and tensions between complex approaches to maritime security and simple accounts may be identified. The former speaks to the links between PSMA, Article 12. PSMA, Article 20. 108 Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) Award, 18 March 2015, [320] and [538]. 109 South China Sea Arbitration (n 99) [945] and [959]. 106 107

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issues (one that is inherent in maritime domains) and presents a closer account of social reality. However, this complexity may undermine the effectiveness of legal responses by generating confusion or uncertainty, or disengagement – if we do not understand it we challenge it. It may lose normative traction. The simple account of security, ie all trafficking of narcotics is illegal, is easy to understand. It is easier to prescribe such a simple rule. And it is easier to secure compliance with a simple rule. But it may also result in crude and sometimes unjust consequences by ruling out exceptions or qualifications to offences based on legitimate reasons. This can be illustrated briefly. It is useful to present two competing models of maritime security: the ‘simple’ account and the ‘complex’ account.110 Either of these approaches to maritime security can be transposed onto existing structural features of international law and analysed in terms of their effect. Considering the former, the law should be designed simply. It can then be understood more readily, acted upon and enforced more easily. With simple laws, conduct is drawn in straightforward terms and issues are considered in isolation. For example, ‘you shall catch only x tons of fish’; there are no exceptions, caveats or qualifications, or defences. Similarly, security can be drawn in simple, functional terms and defined according to specific activities. The simple view does not focus on the complex web of security relationships and motivations. Instead the focus is on specific instances of threat to security: the illegal trafficking of people, carriage of illegal cargos, ensuring simply defined navigational rights and so on. To date fisheries are outside or at the periphery of security so understood and so detached from wider questions of security at sea. According to the complex view, one accepts systemic interactions, the reasons and motives for behaviour, and cause and effect between issues. Thus, we understand fisheries issues in the context of the wider marine environment, and in terms of fisheries being a key factor in the legal order of the oceans as a whole. The complex view of maritime security resonates with the fluid, dynamic and interconnectedness of ocean environments, and the interconnected nature of many aspects of the law of the sea. The law of the sea is often regarded as a system of rules, many of which are fundamentally linked, legally and politically.111 The preamble of LOSC reaffirms this, noting that ‘the problems of ocean space are closely interrelated and need to be considered as a whole’. In the literature, LOSC is widely acknowledged as a package deal, one where interests across a range of diffuse issues were negotiated and settled Here we are drawing on TM Franck, ‘Porfiry’s Proposition: The Role of Legitimacy and Exculpation in Combating Terrorism’ in Y Dinstein (ed), International Law at a Time of Perplexity (Martinus Nijhoff 1989) 149. 111 R Barnes, ‘The Law of the Sea Convention and the Integrated Regulation of the Oceans’ (2012) 27 International Journal of Marine and Coastal Law 859. 110

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in a single legal and political compromise.112 This indicates that when disputes arise, one should be sensitive to the wider legal and political interests at play. Indeed, that such disputes arise at all may reflect a lack of sensitivity to these interconnections when establishing regulations and their implementation. This is consistent with wider research on operational synergies between fisheries and criminal activity, as well as insights from the broken windows perspective, according to which enforcement responses should not be so limited that they lose contextual visibility and significance to the relevant stakeholders in the communities for whom the fishery is relevant. In other words, repeated infringements of harvest rules can start to undermine confidence in, and effectiveness of, a wider range of rules that form part of the same package. On the other hand, adopting a complex system view of security renders it more difficult to isolate and resolve disputes. For example, in international legal proceedings, international law requires a high degree of specificity in identifying the basis of a claim. Thus Article 40(1) of the Statute of the International Court of Justice requires that the ‘subject of the dispute’ be indicated in the application; and, for its part, paragraph 2 of Article 38 of the Rules of Court requires ‘the precise nature of the claim’ to be specified in the application.113 In the Phosphate Lands case, these provisions were stated to be ‘essential from the point of view of legal security and the good administration of justice’.114 Thus new claims are not admissible following the initiation of proceedings where these would transform the subject of the dispute as originally brought before the court. This has been stated in several cases.115 This points towards specificity in the way issues are conceptualised. This perspective has recently been reinforced by Klein’s observations on the implications of the South China Sea tribunal.116 This suggests that fine-grained analysis ought to prevail, that legal intervention should be focused, with law best used as a surgical tool rather than a poultice for complex political disputes. This does not mean that law ‘ignores’ the bigger picture but rather that it is sensitive H Caminos and M Molitor, ‘Progressive Development of International Law and the Package Deal’ (1985) 79 American Journal of International Law 871; RR Churchill, ‘The 1982 United Nations Convention on the Law of the Sea’ in DR Rothwell, AG Oude Elferink, KN Scott and T Stephens (eds), The Oxford Handbook of the Law of the Sea (OUP 2015). 113 Fisheries Jurisdiction (Spain v Canada) (n 76) [29]. 114 Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, Judgment, (1992) ICJ Rep, 266–267. 115 See Prince von Pless Administration, Order of 4 February 1933, PCIJ, Series A/B, No 52, p. 14, and Société Commerciale de Belgique, Judgment, 1939, PCIJ, Series A/B, No 78, p. 173. 116 N Klein, ‘The Vicissitudes of Dispute Settlement under the Law of the Sea Convention’ (2017) 32 International Journal of Marine and Coastal Law 332. 112

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to the ‘blunting’ that may be caused by the careless or inappropriate use of legal tools to solve complex, multifaceted problems. Underlying each position are unarticulated value priorities, ie a preference for legal simplicity or sophistication. However, what is crucial here is that neither approach can be unequivocally defended through rational discourse because each approach has inherent advantages and disadvantages that cannot be measured against each other, and so no basis for choosing between them exists. Simple is not ‘better’ than complex, or vice versa. Indeed, it is difficult to establish the extent to which maritime ‘economic security’ exists because it has multiple facets, causes and effects, and measures. For example, a study by Keen et al indicates that it is difficult to understand the contribution of small-scale fisheries to the ‘Blue Economy’ (ie sum of economic benefits from marine activities) because there is insufficient understanding of contributions of fishing to local economies and ecosystems and because there are institutional gaps in the delivery and enforcement of fishing rules.117 And it is equally difficult to assess whether specific events or actions have caused economic insecurity. Increasingly, existing security concerns raised in policy documents and scholarship suggest that a degree of sophistication in regulatory frameworks concerning fishing activity may be desirable. This is manifest in integrative approaches that are capable of responding to known inter-sectoral issues. Nowhere is this more evident than in the maritime security literature concerned with IUU fishing, in respect of which broad-ranging and complex synergies with a range of criminal activities have been revealed.118 Yet, it requires awareness of the need for shared implementation strategies, which generally involve considered and inclusive actor participation, mediated by cooperating State agencies or international organisations, which are often lacking in sufficient capacity and coordination.119 In short, the direction of travel is to think more holistically about oceans’ problems in order to promote the integration of the diverse legal frameworks that are required to underpin strategies able to support maritime security. This is not novel. LOSC famously states that ‘the problems of ocean space are closely interrelated and need to be considered as

117 M Keen, Anne-Maree Schwarz and Lysa Wini-Simeon, ‘Towards Defining the Blue Economy: Practical Lessons from Pacific Ocean Governance’ (2008) 88 Marine Policy 333, 337. 118 See literature cited in n 13. In respect of dynamic interactions with piracy, see S Percy, ‘Maritime Crime and Naval Response’ (2016) 58 Survival 155. 119 JS Ardron, R Rayfuse, K Gjerde and R Warner, ‘The Sustainable Use and Conservation of Biodiversity in ABNJ: What Can Be Achieved Using Existing International Agreements?’ (2014) 49 Marine Policy 98.

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a whole’. This is really a natural extension of this to the domain of security policy and practice. The link between illegal, destructive or excessive fishing activities and wider maritime insecurity is not something that can be readily established in a short study such as the present one. However, there is growing evidence of this in academic scholarship. An emerging body of literature has progressively clarified the evidence on the effect that IUU fishing has in the perpetuation of criminality. It also highlights the manner in which insufficient governance of fishing vessel activity, particularly in respect of monitoring and compliance, is having on the security of some States and maritime regions. For example, de Coning has highlighted the general operational synergies that facilitate criminality on board fishing vessels.120 In a study of Indonesian fisheries, Chapsos and Hamilton have provided support for the hypothesis, previously established by other authors, that illegal fishing both facilitates and is facilitated by organised crime,121 evidencing links between illegal fishing and serious transnational crime such as human trafficking and forced labour, as well as ancillary forms of criminality such as forgery and fraud. The authors demonstrated that avoidance mechanisms by the persons responsible for the fishing vessel operations resulted in unauthorised transhipment away from port, and legitimising strategies able to keep inspections and controls at bay, enabling illegal fishing and other forms of criminality.122 In Australia, Lindley et al have similarly highlighted the operation of fishing vessels as a convenient cover and transportation mechanism in the organisation of crimes involving smuggling of persons, weapons, and high-value marketable goods such as diamonds,123 and facilitating piracy.124

5.

FISHERY CONFLICTS AND DISPUTES

The security implications of damaging or illicit fishing activity are not limited to operational synergies with a range of criminal activities, but also extend to complex perceptions and interdependencies with local economic resilience, and

120 E de Coning, Transnational Organized Crime in the Fishing Industry: Focus on Trafficking in Persons, Smuggling of Migrants, Illicit Drugs Trafficking (UNODC 2011). 121 See H Österblom, A Constable and S Fukumi, ‘Illegal Fishing and the Organized Crime Analogy’ (2011) 26 Trends in Ecology and Evolution 261; D Liddick, ‘The Dimensions of a Transnational Crime Problem: The Case of IUU Fishing’ (2014) 17 Trends in Organized Crime 290. 122 Chapsos and Hamilton (2018) (n 8) 9–12. 123 Lindley et al (n 8) 87–88. 124 Percy (n 118) 157.

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cultural acceptability of narratives of crime as a response to perceived foreign fishing threats.125 Given the importance of fishing activities to the economies of distant fishing and coastal States, and the dependency of many nations on fishery products to ensure food security, as well as to secure employment and wealth from fisheries, the impacts of IUU fishing or of fishing activities perceived as destructive or excessive can be severe, especially for communities that self-identify as being highly dependent upon fishing.126 Ultimately, the effect of the collapse of a poorly managed fishery can be profound and long lasting127 and is likely to impact on non-target species and the marine ecosystems they inhabit.128 Whilst there is literature on fishery conflicts, this lacks an appreciation of the complex, dynamic and systemic linkage between fisheries and other ocean activities.129 Some advanced maritime security frameworks reflect this complexity to an extent. For example, the US National Strategy for Maritime Security (2005) indicated: ‘competition for declining marine resources has resulted in a number of violent confrontations as some of the world’s fisheries resort to unlawful activity’.130 Later it warns of increasing incursions into US waters from foreign fishing vessels resulting in unlawful and hostile damage, conflict and regional instability.131 Thus fisheries fall partially under the dimensions of economic and political security. Similarly, the EU maritime strategy includes [t]he protection of economic interests, including the safeguarding of maritime energy resources, the sustainable exploitation of natural and marine resources in MN Murphy, ‘The Troubled Waters of Africa: Piracy in the African Littoral’ (2011) 2 Journal of the Middle East and Africa 65. 126 See, for example: F Le Manach, C Gough, A Harris, F Humber, S Harper and D Zeller, ‘Unreported Fishing, Hungry People and Political Turmoil: The Recipe for a Good Security Crisis in Madagascar?’ (2012) 36 Marine Policy 218; D Lymer, S Funge-Smith and W Miao, ‘Status and Potential of Fisheries and Aquaculture in Asia and the Pacific’ (FAO 2008); MC Voyer, C Schofield, K Amzi, R Warner, A McIlgorm and Q Quirk, ‘Maritime Security and the Blue Economy: Intersections and Interdependencies in the Indian Ocean’ (2018) 14 Journal of the Indian Ocean Region 28. 127 See, for example, Newfoundland and Labrador Canada Fisheries and Land Resources, Seafood Industry Year in Review (2017) available at https://​www​.fishaq​.gov​ .nl​.ca/​publications/​pdf/​SYIR​_2017​.pdf, 42. 128 M Scheffer, S Carpenter and B de Young, ‘Cascading Effects of Overfishing Marine Systems’ (2005) 20 Trends in Ecology & Evolution 579. 129 See the meta-analysis of the literature by J Spijkers, TH Morrison, R Blasiak, GS Cumming, M Osborne, J Watson and H Österblom, ‘Marine Fisheries and Future Ocean Conflict’ (2018) 19 Fish and Fisheries 798. 130 US, National Strategy for Maritime Security (2005) available at https://​www​ .hsdl​.org/​?view​&​did​=​456414, 6. 131 Ibid, 12. 125

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the different maritime zones and the high seas, the control of illegal, unregulated and unreported (IUU) fishing, the security of Member States’ fishing fleets and the delimitation of maritime zones, such as the exclusive economic zone, which presents a potential for growth and jobs.132

It also forms part of environmental security: thus ‘[e]nvironmental risks, including unsustainable and unauthorized exploitation of natural and marine resources, threats to biodiversity, IUU fishing …’.133 The UK National Strategy for Maritime Security focuses on fisheries from the point of view of resource security – the threat of ‘illegal exploitation of our marine area (including fisheries)’.134 Again the concern is with economic security.135 The erosion of security in vulnerable coastal areas as a result of fishery mismanagement and overharvesting can also occur in coastal fisheries.136 The links between small-scale fisheries, the provision of food and economic security to dependent populations, and broader socio-economic considerations was emphasised at the Global Conference on Small-Scale Fisheries 2008.137 Although the small-scale fisheries sector contributes to food security, poverty reduction and rural development, it can only realise its potential to significantly contribute to sustainable development and the UN Millennium Development Goals when there are improvements to the precarious and vulnerable living and working conditions for fishers, rights to fisheries resources are strengthened, and fishing communities are able to participate meaningfully in the processes that determine their lives.138 In these fragile social contexts, the risk that accompanies the perception of excessive, destructive or illegal fishing activity might be enhanced, giving rise to disputes. The above-mentioned Ireland–UK voisinage agreement exemplifies this point.139 Exposure to conflict is not restricted to vulnerable coastal areas. Persistent acts of excessive or otherwise damaging fishing, or acts perceived to be illegal or illegitimate, have given rise to disputes between

EU Maritime Security Strategy (n 7) 7. Ibid, 8. 134 UK National Strategy for Maritime Security (n 38) 11. Also [5.5]. 135 Ibid, [5.29] and [5.32]. 136 U Muawanah, RS Pomeroy and C Marlessy, ‘Revisiting the Fish Wars: Conflict and Collaboration over Fisheries in Indonesia’ (2012) 40 Coastal Management 279, 281. 137 FAO, Report of the Conference on Small-Scale Fisheries. Securing Sustainable Small-Scale Fisheries: Bringing Together Responsible Fisheries and Social Development, Bangkok, Thailand, 13–17 October 2008. Fisheries and Aquaculture Report No 911 (FAO 2009). 138 Ibid, 2. 139 Symmons (n 83). 132 133

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different fleets, usually in the context of fisheries that were already perceived to be fully exploited or depleted. Such circumstances underpin a number of international legal disputes, such as the Fisheries Jurisdiction dispute between Canada and Spain,140 and the Southern Bluefin Tuna case between Japan, and Australia and New Zealand.141 In this context, McClanahan, Allison and Cinner state: The fisheries sector faces a number of food and human security challenges, chiefly governance, including perverse subsidies; weak or inappropriate access and property rights; uncontrolled and illegal fishing and other maritime criminal activity; climate change threats in sensitive regions; human settlement and infrastructure in densely populated, low-lying areas; development and trade policies that can conflict with the poor’s access to resources; and an increasingly affluent population, especially among the emerging middle classes of developing and transitional economies, demanding more seafood. These are the areas where conflicts over access and resource declines can trigger wider unrest or ‘fish wars’. Individuals and communities regularly engage in violent conflicts over access to marine resources. These local conflicts have led to international political incidents, such as the famed Cod Wars between Iceland and the UK in the 1950s and 1970s, the 1920s to 1930s Yellow Croaker dispute between China and Japan, and the 1995 Turbot War between Canada and Spain. These conflicts over marine resources have the potential to lead to wider instability, particularly where food insecurity is high, people are vulnerable, and governance is weak or autocratic. The current scale of fisheries is vast and there are many opportunities for large-scale failure and collapse.142

The synergy between the mismanagement of fisheries and security vulnerabilities associated with destabilising competitive or illicit harvesting is not confined to the past, with current assessments of conflict high risk having been identified in a number of regions, including the Pacific Coral Reef Triangle, the south-east of Africa and the Red Sea, north-western Africa and the Gulf of California.143 Examples of conflict associated with encroachment by foreign fishermen in fishing areas traditionally exploited by national communities have characterised some complex maritime disputes where fisheries are intertwined with other claims of jurisdiction over maritime spaces. It is noteworthy that such conflicts may not threaten the economic sovereignty of the State per se, rather they are acute in that they threaten particular communities because Fisheries Jurisdiction (Spain v Canada) (n 76). Southern Bluefin Tuna (2000) 39 ILM 1359. 142 TR McClanahan, EH Allison and JE Cinner, ‘Managing Marine Resources for Food and Human Security’ in CB Barrett (ed), Food Security and Sociopolitical Stability (OUP 2012) 143. 143 TR McClanahan and JE Cinner, Adapting to a Changing Environment: Confronting the Consequences of Climate Change (OUP 2012) 84. 140 141

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of the close connection between those communities and the resources that they depend upon. In this sense, some communities are more vulnerable to encroachment by foreign fishing and so may respond more vigorously to perceived threats. Hence environmental conflicts are more likely in poorer communities.144 However, the potential for fisheries conflicts to occur may be bound up with questions of history, culture and identity and so is not limited to poor communities. In their analysis of the Canada/Spain ‘Turbot War’, De Sombre and Barkin argue that a combination of ‘national pride’ and a failure of collective management via the Northwest Atlantic Fisheries Organization (NAFO) allowed for the relatively small ‘economic conflict’ between two wealthy States to escalate.145 According to these authors, whilst the frustration of economic fishing interests might not have threatened the security of either State, their fishing communities were either, as in the case of Canada, vulnerable to overfishing risks and still bearing the scars of mismanagement and stock collapse, or, in the case of Spain, involved in international fisheries disputes because of deep cultural roots and a dependency on distant stocks due to local scarcity.146 The resolution of the dispute involved international diplomatic and legal action but also a substantial enhancement of regulatory and compliance activity, including the development of more intensive compliance measures involving vessel tracking and compulsory observer and inspection programmes.147 Few disputes with a fisheries dimension have been more visible in recent years than the conflicts taking place in the South China Sea.148 The root cause of such disputes is often complex and may involve a combination of geopolitical policy ambitions, living and non-living resource pressures, and historical claims.149 Fisheries form one aspect of the broader context, and failure properly to manage such activities can exacerbate or trigger wider disputes.150 George suggests that early efforts to implement science-based cooperative management strategies maintained by the key fisheries communities may result in See TF Homer-Dixon, Environment, Scarcity, and Violence (Princeton University Press 1999). 145 E DeSombre and S Barkin, ‘Turbot and Tempers in the North Atlantic’ in R Matthew, M Halle and J Switzer (eds), Conserving the Peace: Resources, Livelihoods, and Security (IISD 2002) 330–349, 341–343. 146 Ibid, 333. 147 Ibid, 338 and 339. 148 M George, ‘Fisheries Protections in the Context of the Geo-Political Tensions in the South China Sea’ (2012) 43 Journal of Maritime Law & Commerce 85, 94 and 103. 149 See T-S Hsieh (ed), The South China Sea Disputes: Historical, Geopolitical and Legal Studies (World Scientific 2018). 150 DY Coulter, ‘South China Sea Fisheries: Countdown to Calamity’ (1996) 17 Contemporary Southeast Asia 371. 144

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largely conflict-free scenarios.151 By contrast, a lack of stable cooperation frameworks and a perpetuation of conflict and resource degradation may result in entrenched insecurity, normalisation of conflict, and a diminution in opportunities for successful resolution, unless a formula for joint management of the resources can be found and maintained.152 In addition, it should be noted that egregious instances of excessive and destructive fishing in the South China Sea involved a broad number of private actors in the area, was extended over time, and was not the exclusive result of national security concerns of State actors in the region. These considerations give further weight to the broken windows perspective, highlighting the importance of visible enforcement strategies able to elicit community engagement in the maintenance of good order at sea.153 The link between security and fisheries is not limited to developing countries, as illustrated by the recent France/UK ‘scallop wars’. Scallop fisheries are typically coastal and are harvested by way of dredging – a fishing method that has destructive effects on the seabed, which is detrimental to benthic habitats, reducing biodiversity and reducing the productivity of target and a broad range of non-target species.154 Short of banning fishing, managing the considerable potential for seabed disturbance and fishery degradation associated with scallop dredging means that the fishery is highly susceptible to mismanagement and collapse.155 It requires intensive, data-rich and multi-pronged regulation. Best practices require dynamic management through data collection and other monitoring methods, effort and gear specification control, entry restrictions and spatial management.156 Intense long-term commitment to co-management has generally produced the best conservation results. By contrast, current scallop fisheries are characterised by a largely open access approach.157 Regulatory approaches involving restricting access typically involve key data on the economic value of the fishery, and disagreements over the available information, methods of production, and involvement of fishers in data supply

George (n 148) 94–96. H Zhang, ‘Fisheries Cooperation in the South China Sea: Evaluating the Options’ (2018) 89 Marine Policy 67, 68. 153 H Zhang and S Bateman, ‘Fishing Militia, the Securitization of Fishery and the South China Sea Dispute’ (2017) 39 Contemporary Southeast Asia 288, 298. 154 BD Steward and LM Howarth, ‘Quantifying and Managing the Ecosystem Effects of Scallop Dredge Fisheries’ (2016) 40 Developments in Aquaculture and Fisheries Science 585. 155 PF Duncan, AR Brand, Ø Strand and E Foucher, ‘The European Scallop Fisheries for Pecten maximus, Aequipecten opercularis, Chlamy islandica, and Mimachlamys varia’ (2016) 40 Developments in Aquaculture and Fisheries Science 781. 156 Ibid. 157 Ibid. 151 152

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can give rise to conflict.158 The coordination of the different regional interests in the regulation of the fishery site is also a potential factor for disagreement and conflict. Enforcement difficulties also raise questions with regard to the effectiveness of certain measures such as fishery or effort restrictions, and the establishment of clear conduct rules and compulsory surveillance mechanisms that facilitate monitoring can be critical to compliance outcomes.159 The use of vessel monitoring system (VMS) technology has not traditionally extended to the smaller vessels that tend to participate in scallop fisheries in European waters.160 For example, at the time of writing EU legislation only requires fishing vessels of 12 metres and over to have VMS installed on board and for its data to be shared with the coastal State in which the vessel is operating.161 Despite the common regulatory blueprint of the Control Regulation, conflict over the scallop fishery situated in the English Channel erupted in the summer of 2018 between British and French fishing vessels, and the British and French navies had to intervene to restore order.162 At the heart of the dispute appears to have been the incursion of the British fleet into the shared fishery area at a time when the same site was closed to French fishermen.163 The disparity in the size of the vessels comprising each fleet has also been the source of disagreement. Regulations that have been applied on a shared basis for a number of years had recently been undermined by a lack of agreement between the parties, with the British fleet not being constrained by the late summer to autumn closure imposed by the French authorities on the French vessels. Despite the rapid intervention of the British and French navies to resolve the scallop wars, the

DM Fleming and PJS Jones, ‘Challenges to Achieving Greater and Fairer Stakeholder Involvement in Marine Spatial Planning as Illustrated by the Lyme Bay Scallop Dredging Closure’ (2012) 36 Marine Policy 370. 159 PSJ Jones, ‘Fishing Industry and Related Perspectives on the Issues Raised by No-Take Marine Protected Area Proposals’ (2008) 32 Marine Policy 749. 160 AJ Davies, JM Roberts and J Hall-Spencer, ‘Preserving Deep-Sea Natural Heritage: Emerging Issues in Offshore Conservation and Management’ (2007) 138 Biological Conservation 299, 307. 161 Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006, Article 9. 162 See P Karasz, ‘French and UK Fishing Boats Clash in “Scallop War”’, New York Times (New York, 29 August 2018) available at https://​www​.nytimes​.com/​2018/​08/​29/​ world/​europe/​britain​-france​-scallop​-war​.html. 163 Ibid. 158

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underlying nature of the dispute is unlikely to be addressed satisfactorily by one-off law enforcement responses to acute situations of conflict. Broken windows theory suggests that more serious disorder can result from breaches of lower-level rules and standards. A broken window begets graffiti, which in turn may encourage more serious property damage. Conflict may be symptomatic of a lack of maintenance of a pre-agreed order in the communities involved. In the case of scallop fishing, the community is composed of British and French fishermen, both of whom had previously been involved in the co-management and maintenance of a shared order acceptable to all. Once the opportunity for common agreement and joint upholding of the rules was removed, descent into chaos and confrontation was swift. The relevance of the removal of the previous cooperation framework is highlighted by the statements of French fishing representatives, indicating that the aggression was intended to keep the larger British vessel at bay, but only until the season started again. In addition, the scallop fishery is associated with cultural identities in France and closely guarded by certain coastal neighbourhoods, particularly in Normandy.164 The violence displayed in the confrontation, born out of poor information, the absence of agreement and the collapse of a joint approach to management and control, is worrying. It casts a shadow over future fisheries relations given the proximity of Brexit, but it also highlights the importance of cooperative frameworks, particularly those able to secure a compromise that is acceptable to participants in a fishery, one that is susceptible to be maintained by their ongoing engagement and that of the relevant authorities. The existence of smaller localised conflicts between scallop fishermen and other fishing sectors further supports the claim that breaches of some rules can escalate into more serious conflicts given the right circumstances.165 In summary, fisheries disputes are often underpinned by broader considerations associated with the security of the communities involved in the harvesting activity: namely, the perception of threats to livelihoods, the absence of trust in existing regulatory frameworks that maintain order, or the absence of legitimate authority figures able to address perceived threats to the community. In these situations, ensuring that fishing is conducted in accordance with agreed rules (eg those made in accordance with local, regional and international standards) is critical. If illegal fishing takes place, or even if fishing is K Adam, ‘“Scallop Wars”: French and British Fishermen Clash in the English Channel’, The Washington Post (Washington, 29 August 2018) available at https://​ www​.washingtonpost​.com/​world/​2018/​08/​29/​scallop​-wars​-french​-british​-vessels​ -clash​-english​-channel/​?noredirect​=​on​&​utm​_term​=​.beae9f441970. 165 R Singer and PJS Jones, ‘Lyme Bay Marine Protected Area: A Governance Analysis’ (2018) Marine Policy, available at https://​doi​.org/​10​.1016/​j​.marpol​.2018​.07​ .004. 164

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perceived to take place outside previously agreed standards of conduct, then it may be seen as officially sanctioned or officially condoned. This perceived failure to uphold rules (ie allowing the broken windows to remain) can lead to the breakdown of trust and escalate small-scale disorder into more serious levels of disorder and criminality.

6.

CONCLUDING REMARKS

The foregoing analysis has outlined different conceptualisations of maritime security, surveying key approaches to its definition and understanding. It has also highlighted the inclusive but fragmented nature of the term, and the tensions encountered when attempting to integrate maritime security with notions of fishery conservation and IUU fishing control. Emerging approaches to defining security in more nuanced ways have increasingly illuminated synergies between insecurity and illicit or poorly regulated fishing activity, and underscored the desirability of finding common or, at least, compatible approaches to theorisation, policy-setting and regulation. In this chapter we have argued that such conceptual approximation can be enriched via the application of broken windows theory, which offers a degree of narrative simplicity in explaining the connections between diffuse but related activities at sea. In practice, efforts by regulators to enhance stakeholders’ understanding of how rules emerge, develop and are enforced, combined with community acknowledgement and engagement, may contribute to a more sustainable, shared notion of good order at sea. Beyond the narrow conception of security contained in LOSC, and the implied link with food security discernible in fisheries management provisions, we highlight the deeper systemic connections between maritime security and good fishery management. This is increasingly visible in post-LOSC oceans policy, where a diverse range of voluntary instruments is enhancing the integration between the regulation of fishing activities and food, economic, environmental and human security. At a regional level, the maritime security strategy policies of international organisations like the EU and the African Union have adopted integrative approaches to maritime security. A wider review of national policies may be desirable to obtain a more detailed picture of current State practice. However, a preliminary review of policy shows that a number of States have developed and broadened maritime security strategies to include fisheries. Globally, human rights approaches that place fishery conservation and management firmly in a food security context have emerged, envisioning a number of substantive and procedural rules to be exercised and maintained by authorities and maritime communities alike. This may mark a shift in interpretive perspectives of key LOSC provisions to one that is more

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broadly connected to the concerns that underpin (in)security understandings, particularly in the context of freedom from hunger and human security. The exercise of jurisdiction within clear parameters is of fundamental importance to establishing and maintaining good order at sea, and the limits established by LOSC should be understood in the context of a need to preserve an orderly balance in the utilisation of marine resources by different stakeholders. In this context, the need for information in respect of the activities of non-State actors emerges as a fundamental consideration linking security to fishery management. The global and regional treaties that advance the fishery provisions of LOSC provide a complex but cooperative operational regime that supports detailed compliance and enforcement rules of both a legal and non-legal nature. These comprise, inter alia, information-sharing elements that reach beyond mere management matters. Increasingly, such rules clarify and facilitate cooperation and non-punitive enforcement in port as mechanisms to complement and reinforce at-sea compliance. Clarity in respect of the legal rules upon which such compliance activity is to take place is important, particularly in respect of fisheries that are extremely depleted and in respect of which future disputes are more likely. Sensitivity to broader interactions and operational synergies at sea is desirable in ensuring the maintenance of maritime security. If this integration of and sensitivity between fisheries and security policy is ignored, then it will only serve to fuel future maritime disputes.

4

High-end maritime security as legal argumentation Volker Roeben

1. INTRODUCTION It is true that the scope of maritime security has become much broadened in recent times, encompassing non-traditional challenges such as environmental security, illegal immigration, human trafficking and piracy.1 Nevertheless, traditional high-end maritime security remains acute. It involves inter-state disputes over resources and control over vital sea lanes. The purpose of this chapter is to explore the impact of the 1982 United Nations Convention on the Law of the Sea (LOSC)2 on the legal argumentation states may use to support their claims in such disputes. It argues that there has been a shift in the grammar of permissible legal argumentation, away from subjective and towards objective law. This shift is manifest in the concept of marine zones, in particular the novel exclusive economic zone (EEZ). It has implications for the securitisation by states of their claims in offshore waters. High-end maritime security conflicts will be presented here as legal argumentation by states to underpin their claims over marine resources. In his much-discussed article, Bueger has developed a framework of ‘maritime security’, comprised of two axes.3 The first is substantive. On it are arrayed high-end to low-end security threats, with the former referring to inter-state conflicts. The second axis concerns ‘securitization’, which is how maritime security is represented by states and other actors. Security claims are constructed as threats to a certain reference object, for instance state control over marine resources. Such claims are only successful if they are presented by actors that have the authority to speak about security and if a relevant target audience accepts them. This notion of securitisation complements a turn of interest to communication in international law. Thus, the New Haven School 3 1 2

See Chapters 1 and 2 of this volume. United Nations Convention on the Law of the Sea 1982, 1833 UNTS 397. C Bueger, ‘What Is Maritime Security’ (2015) 53 Marine Policy 159. 83

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view has long advocated seeing international law as a ‘process of communication’ comprising three communicative streams: ‘policy content, authority signal and control intention’.4 Regardless of whether one shares the premises of the New Haven School, seeing international law as inter-subjective communication and discourse establishes an important level of reflection on the positive law. The article focuses on the discourse on the law of LOSC. Professor Jakab has explained, generally, that the language of legal discourse comprises a list of concepts and the general rules – or the grammar – of the legal discourse; the grammar determines what legal reasoning looks like.5 The grammar of legal language, in his account, is made up of the rules of legal reasoning and interpretation. Argumentation on the interpretation is carried out on two levels: on the one hand, it is about (a) interpretation according to the various methods in that legal order; and on the other hand, it is about (b) which of those arguments one should use, or which of the different interpretations obtained one ought to adopt in a particular case (meta-argumentation). This chapter will apply that structure of legal argumentation to the context of the law of the sea. In the case of LOSC, the methods of interpretation are laid down in Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties. But the focus should then shift to the meta-level, the rules on the way acceptable arguments on LOSC are framed. The hypothesis of this chapter is that, on that level, there are two competing meta-level grammars under LOSC, one of subjective and another one of objective law. An objective grammar has its normative foundation in the LOSC preamble. Preambular paragraph 4 speaks of the purpose of LOSC being to establish the ‘legal order of the oceans’. The International Court of Justice (ICJ) recognised the relevance of this clause in Nicaragua v. Colombia, where it underpins the ruling that the outer continental shelf regime is applicable in all circumstances, binding state parties also in regard to non-state parties.6 The broader effect of that reference is to shift the grammar through which LOSC’s operative concepts are discussed. The gist of this chapter is about LOSC being based on objective law, rather than having a law of the sea dominated by the subjectivity

HH Koh, ‘Is There a “New” New Haven School of International Law?’ (2007) 32 Yale Journal of International Law 13. 5 A Jakab, European Constitutional Language (CUP 2016). 6 Territorial and Maritime Dispute (Nicaragua v. Colombia) [2012] ICJ Rep 624. The question was whether Nicaragua, a party to LOSC, had to submit to the Commission on the Limits of the Continental Shelf a proposal for an extended continental shelf vis-à-vis Colombia, a non-party state. The ICJ found that LOSC intended to establish the legal order of the oceans and that that comprised the procedures establishing an outer continental shelf in all circumstances. 4

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of states and sovereignty. That is very different to the traditional question of whether LOSC established an ‘objective legal regime’ which is opposable to third states not a party to it. Such objective grammar now shapes the interpretation of key legal concepts of LOSC such as the EEZ (as other marine zones), displacing a subjective grammar based on sovereignty, effectiveness, agreement and consent to third-party dispute settlement. There are four critical markers of such objectivisation. First, the concept of the EEZ becomes understood as comprehensively and exclusively defining and distributing competences and entitlements over marine resources, displacing sovereignty and effectiveness. Second, the allocation of a zone to an individual state relies on hard and fast rules for delineation and delimitation. These work on the basis of geographical and geological/geomorphological factors and do not depend on agreement. Third, states exercise limited powers subject to constraints in these zones, rather than discretionary rights. Fourth, there is machinery to ensure that zones may be enforced through adjudication or arbitration when contested, regardless of consent. The shift or not to an objective grammar for LOSC will be explored through the lens of the recent practice of arbitral tribunals having jurisdiction under Part XV of LOSC. This chapter references the awards of Annex VII arbitral tribunals in the South China Sea7 and Chagos8 cases. Both concern complex high-end maritime security challenges and reflect diverging objective and subjective approaches to the EEZ. Both awards will be discussed in detail throughout this chapter and the following only serves to give an overview. The South China Sea Award concerned the so-called Nine-Dash Line that China has drawn up for the South China Sea and within which it claims certain rights over resources and sea lanes, albeit those have never been defined. The Philippines instituted proceedings, claiming that the line and certain activities undertaken by China within it (in particular law enforcement, fisheries, and oil exploration) violated its entitlement to, and sovereign rights within, its EEZ. It also requested that the tribunal clarify the status of certain features in the South China Sea. The tribunal found that it had jurisdiction to examine these claims. It opined that the declaration of China not accepting jurisdiction under

The South China Sea Arbitration, Award on Jurisdiction and Admissibility, 29 October 2015; The South China Sea Arbitration, Award, 12 July 2016. This award has generated considerable reaction, inter alia Chinese Society of International Law, ‘The South China Sea Arbitration Awards: A Critical Study’ (2018) 17 Chinese Journal of International Law 207. 8 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015. 7

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Article 2989 did not cover this dispute, which was not about delimitation. On the merits, the tribunal found that the Nine-Dash Line and activities infringed the EEZ of the Philippines. It also found that the features were low-tide elevations (LTEs) or high-tide elevations (HTEs) that did not generate an EEZ. The Chagos case concerned the establishment of a marine protected area (MPA) by the UK within the EEZ around the British Indian Oceans Territories. This MPA included the Chagos islands, British sovereignty over which is disputed by Mauritius. Mauritius brought proceedings alleging that this MPA violated LOSC as it had not been consulted. The UK objected to the jurisdiction of the arbitral tribunal, arguing that the dispute concerned sovereignty. The three-member majority of the tribunal concluded that the dispute ultimately involved questions of sovereignty over land territory and, to that extent, it did not have jurisdiction. It did, though, consider itself able to consider a number of other related issues. Two members of the tribunal disagreed. They felt that the relevant dispute was always defined by the application, invoking provisions of LOSC. Mauritius had invoked provisions on the EEZ under which it should have been consulted. It was not for the tribunal to search for the real dispute. The remainder of this chapter comprises four substantive sections. Section 2 deals with the concept of the EEZ, Section 3 examines allocation of a concrete EEZ to a coastal state, Section 4 deals with states’ powers in the application of EEZ rules and Section 5 discusses institutionalised enforceability of EEZ law. Section 6 concludes and points out implications of the findings for the securitisation of high-end conflicts.

2.

THE CONCEPT OF THE EEZ

Under LOSC, baselines mark the division between two separate legal orders, that of the land (and internal waters, largely assimilated to land) and that of the sea. The legal order of the sea is based on the concept of different marine zones (the territorial sea,10 the EEZ,11 the continental shelf12). LOSC defines the marine zones as being of a certain breadth projecting from the land to the

In LOSC Part XV, compulsory jurisdiction over disputes relating to LOSC has two carve-outs. The limitations of Article 297 operate automatically. The exceptions of Article 298 require opt-out by parties. They cover inter alia disputes over delimitation and historic titles. 10 LOSC, Part II. 11 LOSC, Part V. 12 LOSC, Part VI. 9

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sea.13 The zones through which control over ocean spaces is exercised embody a balance of interest between coastal and third states. The shift to an objective grammar affects the concept of marine zones of LOSC. This section discusses the objectivisation of the EEZ concept. 2.1

Towards an Objective Concept of the EEZ

The EEZ is a marine zone in which the coastal state has sovereign rights but not sovereignty over the water column.14 An objectivised concept of the EEZ implies a redefinition into competences of those rights. Competences as opposed to rights convey the idea of limited powers, allocated by law for specific purposes. The clearest expression yet of competences rather than rights that coastal states hold in the EEZ is the M/V ‘Virginia G’ case where the International Tribunal for the Law of the Sea (ITLOS) found that, while ‘the bunkering of foreign vessels engaged in fishing in the exclusive economic zone is an activity which may be regulated by the coastal State concerned, [t]he coastal State does not have such competence with regard to other bunkering activities’.15 Seemingly against this trend, in the South China Sea Award, the tribunal insists on framing these ‘competences’ as rights.16 We will return to what this means below. 2.2 Exclusivity The South China Sea Award indicates a further shift in the grammar through which states may express their claims to marine resources. The South China Sea Award uses an objective grammar to shape the EEZ as an autonomous,

13 For instance, LOSC, Article 57 states: ‘The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.’ 14 LOSC, Article 55. 15 M/V ‘Virginia G’ (Panama/Guinea-Bissau), Judgment (2014) ITLOS Reports 4, 70, [223] (emphasis added). On the competences concept, see M Forteau and JM Thouvenin (eds), Traite de droit international de la mer (CEDIN) (Pedone 2017). Note that the competence model also covers the high seas, understood as a concept. In the ‘Norstar’ case, the International Tribunal for the Law of the Sea states that freedom of navigation under Article 87 LOSC has to be read in conjunction with the provision of Article 92 LOSC, which allocates exclusive jurisdiction to ‘regulate’ that activity to the flag state. ‘Norstar’ (Panama/Italy), Judgment, Merits, March 2019, paras. 216, 217, 218 and 220. By contrast, the minority of judges in the case would only have accorded the flag state exclusive enforcement jurisdiction. 16 See, for instance, South China Sea Award on the Merits (n 7) [243], with many more paragraphs doing this in the award.

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comprehensive, operational and exclusive concept. The tribunal finds that the EEZ of the Philippines exists autonomously in law, regardless of whether the Philippines’ claim to the competences and entitlements has been effectively made, recognised and enforced. It is the legality not the reality of the claim which matters. The EEZ is comprehensive of all competences, that is all uses of the oceans are covered and there are none that a concept such as the Nine-Dash Line might have space to cover. There is also operationalisation: the objective existence of the EEZ makes it opposable to others – for example, to fishing and oil exploration activities that are in fact taking place within it – and has the legal consequence that these activities are unlawful. In sum, together with other maritime zones (the territorial sea, the continental shelf) the EEZ defines competences and entitlements autonomously, comprehensively, operationally and exclusively. The competence definition is autonomous because it embodies a specific balance of interests between states at the time LOSC was negotiated. It is provided by LOSC only and does not depend on any other base in international law. The definition is comprehensive in that it forms a grid covering all ocean uses. Of course, complete may not necessarily mean definitive.17 It is operational as it does not need any implementing rules. It is finally exclusive of all alternatives of constructing title to the resources of the sea area covered. This is exclusive of any subjective grammar, which would mobilise sovereignty-based claims to the sea and its uses. Such a subjective grammar for claims to marine resources is conceivable. In principle, claims to marine resources could be determined through criteria analogous to those applicable to land, and hence sovereignty. There, a successful claim involves meeting three criteria: intention of the claimant state, effectivité, and reaction of third states. Effectivité is state authority exercised over the land in a manner proportionate with the circumstances of the case.18 Indeed, claims to ocean spaces and specific uses of the sea have traditionally been made on a similar basis although adapted to the marine environment, that is, a state’s intention to govern, backed by contextual effectivités, combined with reaction of third states. Indeed, in the run-up to the Third UN Law of the Sea Conference, there had been claims and counterclaims made by coastal states to offshore resources and sea lanes.19

17 As evidenced by the debates over marine genetic resources and, indeed, living resources in the high seas/deep seabed. 18 For instance, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) [2007] ICJ Rep 659. 19 See WC Extavour, The Exclusive Economic Zone (Sijthoff 1979) 89 (discussing legal arguments advanced as justification for these claims).

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Similar claims have been made since 1982.20 The basis of these claims is intention matched by effectivité and non-contestation in a marine context, thereby challenging the contention that the EEZ regime is ‘exclusive’. Historic title in the law of the sea is a consensual concept in the sense that not only must there have been an exercise of effective control evidenced by the practice of a state over time, but the exercise of such control must have been recognised or at least not contested by other interested states. Historic title was recognised by the ICJ in the Anglo-Norwegian Fisheries case21 to cover marine resources such as fisheries. In the court’s reasoning, this title is based on traditional uses of the sea by a coastal state that have become accepted by third states. It is based on subjective criteria of intention, effectivité and non-contestation. China had claimed that it has historic fishing rights within the Nine-Dash Line. This was an attempt at legal argumentation, moving from the unconventional (Nine-Dash) to the conventional (historic title) but still within a subjective grammar. Yet for the South China Sea tribunal, the EEZ concept becomes the legal yardstick against which alternative entitlements must be measured. This is evidenced by its treatment of historic title. The tribunal concluded that China’s claim to historic title was not substantiated on the facts22 but it went further. It opined that these positions were excluded as matter of law, not just fact. It addressed, head on, the question whether historic title can be an alternative means of determining maritime entitlements.

20 See F Orrego Vicuna, ‘The “Presential Sea”: Defining Coastal States’ Special Interests in High Seas Fisheries and other Activities’ (1987) 35 German Yearbook of International Law 264. 21 Anglo Norwegian Fisheries (UK v. Norway) [1951] ICJ Rep 116, 130 and 138–39. The UK in that case argued that historic title had two conditions: (i) actual exercise of authority by the claimant State; and (ii) acquiescence by other States. By contrast, Norway had not required the latter; further UN Secretariat, ‘Memorandum on the Juridical Regime of Historic Waters, Including Historic Bays’ (1962), UN Doc A/CN.4/143. The ILC had requested the study but concluded that the topic did not require active consideration by the Commission in the near future at its twenty-ninth session, 3 May to 29 July 1977, ILC Report, A/32/10 (F), 1977, Ch. V.E (b), [109], ILC Yearbook, 1977, VII (F). At the Third UN Conference on the Law of the Sea, states could not establish general agreement on the role of historic titles for the allocation of maritime spaces, RR Churchill and AV Lowe, The Law of the Sea (3rd edn, Manchester University Press 1999) 456. 22 South China Sea Award on the Merits [113].

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2.3 Hierarchy Indeed, the tribunal frames the issue as a normative conflict between LOSC and external (customary) law of the sea. This permits it to apply the general conflicts rule contained in Article 311 of LOSC.23 This provision is not free of ambiguity.24 Yet the tribunal uses it to establish a normative hierarchy which has LOSC at the apex within the law of the sea. External rules must be permitted to be applicable within the scope of LOSC.25 The tribunal concludes on this basis that customary historic title is incompatible with the EEZ concept and hence the (Chinese) claims based on historic title are legally unfounded, not just factually.26 This argumentation with a normative hierarchy within the law of the sea reflects an objective grammar, with the effect of reinforcing the EEZ concept. It is much stronger than alternative arguments that could have reached the same result, for instance a distinction between what LOSC contains and what it does not. The tribunal even excludes all references within LOSC to historic title. Such references are scattered throughout LOSC in relation to topics as diverse as delineation of the maritime boundaries of the territorial seas to general exceptions to the jurisdiction of courts and tribunals under Part XV concerning dispute settlement.27 In fact, the tribunal makes no attempt to interpret LOSC

Ibid, [235]. LOSC, Article 311 states that ‘(2) This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. ... (5) This article does not affect international agreements expressly permitted or preserved by other articles of this Convention. (6) States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof.’ 24 Although the provision only speaks about treaties, the tribunal also applies it to customary international law. 25 South China Sea Award on the Merits [238(b)]: ‘Where the Convention does not expressly permit or preserve a prior agreement, rule of customary international law, or historic right, such prior norms will not be incompatible with the Convention where their operation does not conflict with any provision of the Convention or to the extent that interpretation indicates that the Convention intended the prior agreements, rules, or rights to continue in operation.’ 26 Ibid, [247]: ‘The Tribunal considers the text and context of the Convention to be clear in superseding any historic rights that a State may once have had in the areas that now form part of the exclusive economic zone and continental shelf of another State.’ And [261] emphasises this point. 27 LOSC refers to historic title and similar notions of historic status in various contexts including bays (Article 10(6)), maritime boundary delimitation (Article 15), and archipelagic waters (Article 46(b)). 23

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in a way which makes sense of these various provisions as alternative entitlements to those of the EEZ. The findings can be generalised. They imply that all rules of the customary law of the sea would have to pass muster with Article 311 and, hence, the EEZ concept. An example might be the Exclusive Fisheries Zone, which is not in LOSC, but which is found in customary international law. 2.4

Limiting the Role of Features in the EEZ

Offshore features constitute irritants to the concept of the EEZ. They disrupt the allocation to the coastal state based on its mainland coast. At least when uninhabited, they do not serve any socio-economic purposes but are mere staging posts for a state to project power. The consequence of an objective grammar will be a reduced role for offshore features in determining entitlement to marine resources. The South China Sea Award implements this approach. The award confirms that LOSC does not alter or even touch upon the question of sovereignty over offshore features. That falls outside the scope of its jurisdiction. Substantively, this reinforces the distinction between international law relating to the sea and international law as it relates to title to territory. The award then takes an objective approach to the classification of offshore features. As already recognised by the ICJ in the Nicaragua v. Colombia case, Article 121 relating to different offshore features – islands and rocks – forms an indissociable regime.28 This regime categorises those features to accord them varying marine zonal entitlements: islands have an EEZ, but rocks do not. The South China Sea Tribunal pursues this convention-autonomous approach to features located outside the territorial sea that are visible at high tide, HTEs, and which – legally – may be either islands or rocks.29 In the objective grammar, the rationale of EEZ determines the status of a feature, not the other way around. The tribunal articulates the rationale for the EEZ as being socio-economic.30 The EEZ serves to support the current economic interests of the state and its population, rather than historical or current effective exercise of sovereignty. The award turns to this rationale to distinguish islands from The concrete debate there was whether Article 121(3) LOSC on rocks was or was not customary law – and the ‘indissociable regime’ point answered that in the affirmative. However, the broader point of the regime is the comprehensive concept of features. 29 South China Sea Award on the Merits [119]. Coral, ice, sand, etc. – all of which may amount to ‘features’ but not necessarily ‘land’. 30 Ibid, [512]. 28

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other features. A feature is an island if it is realistically able to support populations and then has an EEZ, while HTEs are not and hence do not have an EEZ. LOSC thus interpreted contains a comprehensive categorisation for all offshore features. The award creates a novel category of such features, the HTEs, in order to render the EEZ comprehensive of all offshore features. It then attributes a specific entitlement to each: islands have EEZs, while rocks and HTEs do not, and LTEs have no entitlements at all.31 Objective law and its application trumps subjective control over effectiveness and contestability. The South China Sea Award firmly excludes effectiveness in creating a title. It does so by determining that the status of a feature is to be determined by reference to the status quo ante, rather than any later alteration by a state exercising control over it.32

3.

ALLOCATION OF AN EEZ TO A STATE: RULES FOR EXISTENCE, DELINEATION AND DELIMITATION, NOT AGREEMENT

The previous sections have set out a concept of the EEZ as defined by competences and powers of states. This section deals with the next marker of an objectivised grammar. It concerns the allocation of an EEZ to an individual coastal state. The EEZ as a concept is general and abstract law. It needs to be allocated in a concrete instance. Allocation in this sense means that it has to be determined whether a coastal state actually possesses an EEZ and, equally importantly, what the concrete boundaries are. Allocation becomes a process of legal argumentation. The grammar of this process can be subjective and hence emphasise effective control and agreement. Alternatively, it can be objective and be based on predetermined rules applied transparently. This section explores the extent to which an objective grammar has become dominant for the existence, as well as seaward delineation and delimitation of a state’s EEZ from those of others. To start off, subjective argumentation based on sovereignty–effectiveness– contestability on the EEZ retains a place in state practice. This is true for the

Ibid, [131]. A low-tide elevation (LTE) is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide, Article 13(1) LOSC. It is generative of a territorial sea if located within the territorial sea of an island or mainland, Maritime Delimitation and Territorial Questions (Qatar v. Bahrain) (Merits) [2001] ICJ Rep 40, [201]–[202]. At [207] the ICJ had recalled that an LTE which is situated beyond the limits of the territorial sea does not have a territorial sea of its own, and ruled that an LTE as such does not generate the same rights as islands or other territory. 32 Ibid, [305]; [508]. 31

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drawing of baselines from which the breadth of these zones will be measured. LOSC sets forth two rules on the drawing of baselines, normal and straight baselines. Coastal states argue subjectively when claiming straight baselines where the prerequisites of Article 7 may not be met.33 That includes offshore archipelagos.34 There is also subjective argumentation by states on the existence of their marine zone, even though most of these – at least recently – have concerned claims to territorial seas, not EEZ. For instance, China has objected on the basis of its claimed territorial sea(s) to military passage by other navies, not a claimed EEZ. Such claims by coastal states are countered by freedom of navigation operations undertaken by naval forces of other states. These contestable claims may reflect the uncertainty of military operations in coastal waters where the concept of innocent passage has been interpreted differently by states, but again not so much affecting the EEZ. Nevertheless, they reintroduce a subjective argumentation of effectiveness and consent into LOSC. Importantly, the South China Sea Award bars this argumentation from changing the rules of LOSC on the EEZ. The tribunal, albeit in a different context, accepts that under Article 31(3)(b) of the 1969 Vienna Convention on the Law of Treaties consensual practice of states parties after the entry into force of LOSC may have legal weight. It emphasises that such practice has to clear a high bar, though, in line with the UN International Law Commission (ILC)35 in its work relating to subsequent practice reflecting the agreement of states.36 Indeed, what the tribunal and the ILC seem to require comes close to a consensus on the interpretation of the treaty that must fall short of contradicting the extant law since there is a presumption that subsequent practice is limited by the terms of the treaty and cannot go so far as to modify or amend the treaty.37 In the South China Sea Award, the tribunal indeed takes an objectivised approach to the EEZ allocation, including the seaward delineation. The tribu-

33 For examples in state practice see MW Reisman and GS Westerman, Straight Baselines in International Maritime Boundary Delimitation (Palgrave 1992); S Kopela, Dependent Archipelagos in the Law of the Sea (Martinus Nijhoff 2013). 34 C Whomersley, ‘Offshore Archipelagos Enclosed by Straight Baselines: A Reply to J. Ashley Roach’ (2018) 49 Ocean Development & International Law 203. 35 ILC, Fifth report on subsequent agreements and subsequent practice in relation to the interpretation of treaties by Georg Nolte, Special Rapporteur, A/CN.4/715, 28 February 2018, Draft conclusion 4 – Definition of subsequent agreement and subsequent practice. 36 South China Sea Award on the Merits [552] requires a ‘concordant, common and consistent sequence of acts or pronouncements’ to establish a pattern implying agreement of the parties regarding LOSC’s interpretation. 37 Draft conclusion 7[3] offers a general direction without fully resolving the question for all conceivable circumstances.

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nal approaches the allocation of an EEZ to the Philippines extending to 200 nm as a legal question, rather than a factual issue.38 There is no requirement of the Philippines having exercised any effective control. Rather the actions of Chinese vessels in the zone are framed as infringement issues of the extant zone, which have no bearing on the allocation of the zone. The objective grammar renders inarguable claims of sovereignty and contestability to underpin and justify those actions. The rise of an objective grammar will also affect delimitation of the EEZ between states with opposite and adjacent coasts. LOSC law on this matter, Article 74(1), is an open-textured principle that requires an equitable delimitation but gives little guidance on how to arrive at such a result.39 The primary rule in LOSC remains one of agreement between the parties – which is consensual. Delimitation hence seems to be the opposite of hard and fast rules for the allocation of an EEZ. Secondarily, LOSC provides for delimitation by adjudication or arbitration where no agreement can be reached. It would then be for courts and tribunals having jurisdiction under Part XV to fashion a ‘methodology’ that is precise and can be applied by them in a predictable and transparent fashion.40 The desire to fashion such a methodology underpins the ‘three stages’ methodology of equidistance-cum-relevant circumstances, first set out in 2009 by the ICJ in the Black Sea41 case. The Bay of Bengal (Bangladesh and India)42 Award puts this into a bold proposition. The case concerned the delimitation of a single boundary comprising both the continental shelf and the EEZ of Bangladesh and India in the Bay of Bengal. After expressly setting aside alternative methodologies,43 the tribunal there based itself on the equidistance-cum-special circumstances methodology.44 It opined that the methodology of equidistance-cum-special circumstances had now become

South China Sea Award on the Merits [698]. Articles 74(1) and 83(1) of LOSC govern the delimitation of the EEZ and the continental shelf within 200 nm. These provide in the same terms that the delimitation ‘shall be effected by agreement on the basis of international law, as referred to in article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution’. 40 The impact of the new concept of the EEZ on the rules of delimitation had been noted, early, by F Orrego Vicuna, ‘The Contribution of the Exclusive Economic Zone to the Law of Maritime Delimitation’ (1988) 31 German Yearbook of Intl L 120. 41 Case concerning maritime delimitation in the Black Sea (Romania v. Ukraine) [2009] ICJ Rep 3. 42 Bay of Bengal Maritime Boundary Arbitration (The People’s Republic of Bangladesh v. The Republic of India), Award of 7 July 2014. 43 The so-called angle-bisector method, ibid, [93], [97]–[99]. 44 Ibid, [100]–[129]. 38 39

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accepted as the only one, comprehensive of all issues arising and exclusionary of alternative delimitation methodologies. An objective grammar supports the argument that the relevant provisions of LOSC, Articles 74 and 83, amounted to an authorisation of courts and tribunals having jurisdiction under Part XV to develop a concretising and operational methodology that was transparent and led to a certain outcome. The equidistance-cum-relevant circumstances methodology met these requirements. The statement that it had also emerged as the acquis judiciaire of the courts and arbitral tribunals is something of an afterthought.45 It is not so critical whether it is empirically correct. This rule on the delimitation and hence allocation of an EEZ that has been adopted by the institutions of LOSC arguably becomes part of ‘international law’, which, under Article 74(1), binds states when providing delimitation by agreement, reducing the role of subjective consent. It remains to be seen whether and how states follow it.46

4.

APPLICATION OF EEZ LAW: CONSTRAINT POWERS, NOT DISCRETIONARY RIGHTS

An objective EEZ concept turns subjective rights of states into objective competences and powers. It is generally accepted that, unlike the territorial sea where it exercises sovereignty, in its EEZ the coastal state has only sovereign rights. The next step is to see these rights as objective competences, which states possess for specific purposes. This in turn means that their exercise becomes subject to objective review, akin to that found in domestic administrative law. In international law more generally, treaties are being reconceptualised as conferring competences and powers, rather than rights. A well-known illustration is the judgment of the ICJ in the Whaling in Antarctica case, where the court, in effect, found that the Whaling Convention vested states with

Ibid, [339] reads: ‘The ensuing – and still developing – international case law constitutes, in the view of the Tribunal, an acquis judiciaire, a source of international law under article 38(1)(d) of the Statute of the International Court of Justice, and should be read into articles 74 and 83 of the Convention.’ 46 The 2010 Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean (done 15 September 2010, entered into force 7 July 2011), available at http://​ www​.regjeringen​.no/​upload/​UD/​Vedlegg/​Folkerett/​avtale​_engelsk​.pdf defines the single maritime boundary that divides the Parties’ continental shelves and EEZs in the Barents Sea and the Arctic Ocean as a compromise between the strict equidistance line proffered by Norway and the bisector line proffered by Russia. 45

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powers rather than rights.47 It then set out the constraints on the exercise of the power to issue licences to take whales, in particular the purpose of that treaty, ensuring that those powers were to be exercised proportionally. Its relational structure of obligations and rights gives international law a subjective, quasi-contractual appearance. Yet, obligations and rights are merely the means by which international rules are applied, determining who owes what conduct to whom in the concrete instance. But international rules are enabling as much as constraining. They enable states to demand that another actor, be it another state or an individual, change its course of action. International rules then confer on states legal powers, where such power has the capability of altering the legal situation of other actors. The legal power becomes a means of applying the rule. When a state exercises such powers, it produces decisions falling under a presumption of lawfulness. This presumption is subject to challenge. The principal ground of challenge is that the decision does not conform to the power-conferring rule.48 Supplementary grounds of challenge are the general constraints that international law now places on states. Those flow, inter alia, from the international rule of law and from human rights.49 The presumption of lawfulness can be challenged in various forums. International courts are indeed more frequently structuring consideration of the application of international rules around the use of international legal powers in disputed cases. The ICJ has done so in several recent cases. In the Mutual Assistance case, the court recognised that a state may hold an international legal power in regard to another state.50 In the cases Whaling in the Antarctic, Pulp Mills, Dispute regarding Navigational and Related Rights, Obligation to Prosecute and others it has done so in regard to individuals.51 47 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) [2014] ICJ Rep 226 (power to issue permit for taking whales for scientific purposes). 48 In Certain German Interests in Polish Silesia (Merits) (1926) PCIJ Series A, No. 7, 19, the Permanent Court of International Justice had affirmed that it could review national legislation for its conformity with that state’s international obligations. 49 See Individual opinion of Judges Wolfrum and Kelly, ITLOS Case No. 22, The Arctic Sunrise Case (Kingdom of the Netherlands/Russian Federation), Order for interim protection, [13] (human rights as constraints on the exercise of a state’s powers in its EEZ). 50 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) (Separate Opinion of Judge Keith) [2008] ICJ Rep 177 (power to refuse to carry out extradition request); also Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece) [2011] ICJ Rep 644, [70] (power to object to membership of another state in an international organisation). 51 Whaling in the Antarctic (n 47) (power to issue permit for taking whales for scientific purposes); Pulp Mills on the River Uruguay (Argentina v. Uruguay) [2010] ICJ Rep 14 (power to authorise the operation of a factory); Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) [2009] ICJ Rep 213 [85]–[133] (power

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The court has then gone on to control the exercise of the power by the state,52 ensuring that it does so in accordance with law, including whether it was a proportionate use of that power against the object and purposes of the treaty in question.53 Such a transition from rights to powers is also under way regarding the EEZ. In fact, as pointed out above, the South China Sea tribunal makes many references to the ‘rights’ of the Philippines as the coastal state. In this context, the tribunal casts these rights as powers of exclusion of third states. The competences/rights that the EEZ confers on states become powers the exercise of which can be made subject to general principles and procedures of an administrative law nature. This proposition was tested in the Chagos case. Mauritius, by arguing that it should have been consulted by the UK before the setting up of the MPA, is not contesting the right of the UK to establish an MPA. It rather makes the argument that the exercise of that right is subject to conditions. This argument rests on an objective grammar. It shapes the argument that, under LOSC (and in particular the EEZ), the coastal state holds powers that it must exercise in an orderly fashion. From this principle flow specific requirements. Some of those are laid down in LOSC itself, such as the requirement that environmental protection legislation of a coastal state be based on international standards.54 That same principle then is capable of generating requirements aimed at protecting other internationally recognised values and interests concerning the protection of a coastal state’s marine environment. International human rights are potential additional constraints. The disagreement between the majority and the minority of the arbitrators in the Chagos case reflects the difference between a subjective and an objective approach. The majority of arbitrators concluded that the tribunal did not have

to regulate commerce on a navigable river); Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (Merits) [2012] ICJ Rep 422 (power to prosecute under the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)). 52 In Obligation to Prosecute (n 51) [89]–[95], having identified states parties’ power under the CAT to prosecute for torture, the Court finds for the state to exercise that power rather than to choose either to prosecute or extradite. In Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, [159], the Court identifies for all states the jurisdictional power to prosecute under the Fourth Geneva Convention and the need to exercise it. 53 Whaling in the Antarctic (n 47) [62]–[69]. 54 LOSC Part XII, Section 5; see C Redgewell, ‘The Never Ending Story: The Role of GAIRS in LOSC Implementation in the Offshore Energy Sector’ in J Barrett and R Barnes (eds), UN Convention on the Law of the Sea: A Living Treaty? (BIICL 2016) 167.

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jurisdiction. For them, the crucial question related to the holder of the power to declare an MPA, not the manner of its exercise. That question of sovereignty fell outside the jurisdiction of the tribunal. It could, however, have considered the manner in which that sovereign power was exercised without touching on the question of whether it was entitled to do so at all. By contrast, the minority focused on the exercise of the power to declare an MPA, and not the holder of that power. The minority conceptualised the dispute as solely concerning the application of the provisions of LOSC relevant to the establishment of an MPA, but not sovereignty. Over that dispute, the tribunal would have jurisdiction.

5.

ENFORCEABILITY OF EEZ LAW: INSTITUTIONALISED THIRD-PARTY DISPUTE SETTLEMENT, NOT CONSENT

A final aspect of an objective grammar concerns the enforceability of the EEZ concept. Part XV of LOSC provides institutionalised methods of enforcement.55 There is compulsory third-party dispute settlement, adjudication or arbitration, of disputes relating to LOSC, but subject to the exceptions to compulsory processes, and the entire Section 1 of Part XV concerning settlement by peaceful means outside the LOSC framework. An objective grammar would expand this compulsory third-party dispute settlement by limiting exceptions and procedural preconditions. It would favour objective enforcement of the objective EEZ law. By contrast, in the subjective grammar, states would have to obtain the consent of other states before a court or tribunal had jurisdiction to consider many sovereignty-related issues, and the state instituting proceedings would have to demonstrate standing in the matter. The tribunals in the South China Sea Award and the Chagos case have differed on these questions, with the former following a subjective and the latter an objective grammar. This section sets out these juxtaposed positions on the two key issues of that capacity: procedural preconditions, including any locus standi requirement (5.1) and exceptions to compulsory third-party dispute settlement (5.2).

LOSC Part XV, Section 2, subject to the limitations and exceptions to compulsory processes in Section 3, and Section 1 concerning settlement by peaceful means outside the LOSC framework. 55

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Procedural Preconditions

The capacity to institute proceedings is limited by procedural conditions that would allow the other state to delay any action. The South China Sea tribunal was prepared to take a minimalist approach to any procedural requirements for a state to meet before starting a case in the court or tribunal having jurisdiction under Part XV. First, a purposive reading of Articles 281–283 allowed the tribunal both to ‘hasten’ the day when it could be seized of the case and reduced the chance of successful challenges to its jurisdiction, taking a rather broad approach to the need to have identified the subject matter of ‘the dispute’ for the purposes of prior negotiation. In the award on preliminary objections, the tribunal found that the applicant may auto-assess whether the potential for negotiations has been exhausted.56 The applicant also is not barred from invoking the binding mechanism of LOSC by any alternative mechanism that would produce a non-binding outcome, such as the code of conduct on the South China Sea.57 Second, that capacity would be limited by a standing requirement, for instance for the applicant to demonstrate title to the offshore feature. The tribunal did not require the Philippines to demonstrate any interest or right to bring the action regarding the qualification of the features in the South China Sea claimed by China. The logical conclusion is that any other state party could have brought the case to clarify the conventional concept of offshore features or indeed whether the Nine-Dash Line violates the Philippines’ EEZ. The South China Sea tribunal did not say so expressly, but effectively it removed the need to demonstrate standing in the sense of a special or direct interest in the case. Standing is objective only; membership in LOSC enables a state to seize its dispute settlement machinery for the purpose of interpreting and applying any of its law where there is doubt or controversy.58 The issue regarding the ILC Draft Articles on State Responsibility and obligations erga omnes partes that this may raise cannot be explored fully here. 5.2

Covered Disputes and Exceptions

The South China Sea tribunal took an objective approach to the compulsory nature of third-party dispute settlement. The South China Sea Award strengthens the covered disputes by isolating the relevant Convention law. The key South China Sea Award on Jurisdiction (n 7) [112]. Ibid, [105]. 58 See also the judgment of the ICJ in Obligation to Prosecute (n 51) (Belgium’s membership in the CAT sufficed for that state to institute proceedings even though no national was concerned). 56 57

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argument of the tribunal is a formal definition of a dispute relating to LOSC that Article 288(1) requires.59 The tribunal requires that the application plausibly invokes a specific provision relating to the facts. That constitutes the dispute, and the respondent is not allowed to broaden or alter that dispute. This allows the applicant – in this case the Philippines – latitude to define the nature of the dispute as relating only to the classification of features under LOSC, so as to avoid its falling outside the tribunal’s jurisdiction. At the same time, the tribunal narrows the consent-based exceptions to this compulsory jurisdiction. Article 298 excepts disputes concerning maritime boundary delimitation. The tribunal defines a delimitation dispute again formally as involving two overlapping claims by parties to the same marine zones. The exception, therefore, is not applicable to disputes concerning overlapping claims to different zones, for instance to an EEZ and to a territorial sea, even if they actually cover the same ocean space. In the context of the South China Sea dispute, whether there is such an overlap depends entirely on whether the features in question claimed by China are entitled to generate EEZs (not just a territorial sea) in the first place. If the feature is not entitled to generate an EEZ (either because it is an HTE falling within the scope of Article 121(3) or an LTE), then it cannot have an EEZ which overlaps with the EEZ of the Philippines. This becomes the critical point on which the jurisdiction of the tribunal turns. The tribunal acknowledges that the qualification of the status of these features, as islands, rocks or LTEs, necessarily will have an effect on delimitation.60 The procedural decision of the tribunal that this qualification is not of an exclusively preliminary nature shifts the exercise to the merits; it reflects the tribunal’s objective grammar for handling LOSC law on dispute settlement.61 That decision provides the tribunal with provisional jurisdiction

The provision reads: ‘A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.’ 60 South China Sea Award on Jurisdiction (n 7) [394]: ‘If, however, another maritime feature claimed by China within 200 nautical miles of Mischief Reef or Second Thomas Shoal were to be an “island” for the purposes of Article 121, capable of generating an entitlement to an exclusive economic zone and continental shelf, the resulting overlap and the exclusion of boundary delimitation from the Tribunal’s jurisdiction by Article 298 would prevent the Tribunal from addressing this Submission.’ Cf. V Roeben, ‘The Equitable Distribution of Marine Resources by Agreement of States – The Case of the South China Sea’ (2015) 1 Chinese Journal of Global Governance 36, 59. 61 Highly critical is S Talmon, ‘Objections Not Possessing an “Exclusively Preliminary Character” in the South China Sea Arbitration’ (2016) Journal of Territorial and Maritime Studies 3. 59

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to classify the features. In the award on the merits, the tribunal then finds that none of the features is entitled to an EEZ. The conclusion is that there cannot be a delimitation dispute here, not just a delimitation dispute which fell outside the jurisdiction of the tribunal given its interpretation of Article 298. The substantive finding that none of the features has an EEZ of its own has the legal consequence that the exception of Article 298 does not apply and, hence, that the tribunal had full jurisdiction in the first place. The Chagos case took a very different approach to defining the concept of a dispute concerning LOSC, with the opposite effect of limiting the scope of compulsory jurisdiction. It effectively distinguishes between a formal and real dispute. This tribunal did not base itself on the formal dispute as defined by the application, but rather on its assessment of the real nature of the dispute, which in this case was that which the defendant had argued should be adopted. As has already been seen, the tribunal thought that the essence of the dispute concerned the existence of legal power of the coastal state to declare an MPA, not the manner in which such a power (if it existed) was exercised. Because of that, its own assessment that the dispute was in reality about sovereignty over land, the tribunal concluded that the dispute did not fall within the scope of the compulsory jurisdiction provided for in Article 287, but rather outside it. This did not mean that the dispute was not justiciable. Sovereignty over Chagos is indeed justiciable, as is the question whether it could be lawfully separated from the rest of Mauritius upon independence. But for the tribunal to decide this dispute would have required the consent of the UK. Chagos illustrates the role of diverging grammar in the argumentation on the EEZ. This role plays out in relation to the interpretation of an open and contentious question in Part XV. Article 288 only says that for a court or tribunal to have jurisdiction ratione materiae, the dispute must concern LOSC, but does not say anything specifically about the relation between the zones and title to the coastal land that dominates the zones.62 Technically, that title is an incidental question. An objective grammar would dictate that the two questions remain distinct, that the concept of the EEZ can be discussed and adjudicated separately. The subjective grammar, by contrast, demands discussing and adjudicating it together with sovereignty over the land that gives rise to the zone. The tribunal in its majority followed that subjective grammar. In its wake, states may be well advised to avoid sovereignty-related arguments when

62 See, with further references to the literature, P Tzeng, ‘Ukraine v. Russia and Philippines v. China: Jurisdiction and Legitimacy’ (2017) 46 Denver Journal of International Law and Policy 1; and A Proelss, ‘The Limits of Jurisdiction Ratione Materiae of LOSC Tribunals’ (2018) 46 Hitotsubashi Journal of Law and Politics 47.

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seizing LOSC’s dispute settlement machinery, although the Ukraine/Russia dispute may forge new views of the correct grammar.63 5.3

A Summary

The two awards portray two starkly opposing views of the grammar that would determine the possible arguments of states at the stage of enforcement. The South China Sea Award advances objective, institutional oversight of all state action in relation to an EEZ, by the coastal state but potentially by any state party. The Chagos Award is deferential to the subjectivity of consensual settlement of disputes outside a compulsory institutional framework. Since the concept of the EEZ (as well as others) remains linked to the land, it is unsurprising that coastal states remain ready to object to any aspect of a dispute settlement process that even incidentally touches upon their sovereignty. The irony is that this may only mean that the UN General Assembly bring the dispute before the ICJ, whose advisory jurisdiction is independent of consent, as it did in regard to the status of Chagos.64 As a result, LOSC’s dispute settlement machinery and the ICJ have started to operate as a single judicial function.

6. CONCLUSION The gist of this chapter is about taking an objective approach to the interpretation of LOSC, rather than having a law of the sea dominated by the subjectivity of states and dominated by sovereignty. That is very different from the traditional question whether LOSC has established an ‘objective legal regime’ which is opposable to third states not a party to it. Under LOSC, a grammar of objective law has been replacing subjective consent-based argumentation when states are in dispute over entitlement to marine resources. This grammar operates with concepts of marine zones that define competences for states. These concepts apply in the same manner to all states parties regardless of size and power, and they can be enforced without consent through LOSC’s dispute settlement machinery regardless of consent. The EEZ is an apt test case. LOSC has created this concept as a novelty over the traditional law of the sea. The shift to an objective grammar on this zone 63 PCA Case No. 2017-06, Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov and the Kerch Strait, Procedural Order 3 Regarding Bifurcation of the Proceedings Award; ITLOS Case No. 26, Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures. 64 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion), 25 February 2019, General List No. 169.

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is a marked but incomplete trend, as the Chagos case illustrates. The shift may apply generally to the concept of marine zones in LOSC, including the continental shelf and also the deep seabed. Does this shift in the grammar of legal argumentation enhance maritime security? In terms of Bueger’s framework, it affects the securitisation of high-end challenges. It favours legal arguments based on the collectively agreed objective law and removes those legal arguments that a state may otherwise advance that rely on effective control and contestability, in essence on asymmetrical power. Narrower acceptable legal argumentation will also entail narrower acceptable political argumentation that supports unilateral solutions or one state holding out for more concessions. That, in turn, will often make it easier to cooperatively resolve the underlying high-end disputes.

5

The commission of maritime crimes with unmanned systems: an interpretive challenge for the United Nations Convention on the Law of the Sea Anna Petrig1

1. INTRODUCTION Over the past decade, two important developments relevant for international maritime security law have taken place: first, the security landscape at sea has changed considerably with transnational crimes now ranking high on the list of maritime security threats; second, the ‘robotics revolution’ has reached the sea with the advent of unmanned (aerial, surface and underwater) vehicles. Combined, these developments have led to increased reliance by non-State actors on unmanned systems when committing criminal offences at sea. This entails a shift from proximate to remote human involvement in the commission of maritime crimes – a shift that shakes the foundations of the provisions of LOSC relating to crimes at sea, which rest on an assumption of proximity.2 This raises the question whether LOSC – often characterized as a ‘living instrument’ or a ‘Constitution of the Oceans’ which is capable of developing or as a framework which can be progressively filled – is capable of accommodating the turn to this transformative technology. Alternatively, is the use of unmanned systems to commit maritime crimes too disruptive a change to be addressed in this way, and thus requires new rules? In the words of the editors of the present book, the question is whether new paradigms require new conventions – and whether the time has come to commence the process of thinking 1 The author would like to sincerely thank Dr Maria Orchard, JD/LLM, for her research assistance on the topic and editorial work on the article. The usual disclaimers apply. 2 United Nations Convention on the Law of the Sea 1982, 1833 UNTS 397.

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about a new conceptual and conventional architecture that reflects what is really going on today, and what we predict will be going on tomorrow at sea.3 This chapter endeavours to answer this question and proceeds as follows: first, it takes stock of the extent to which unmanned systems are used in the maritime domain (Section 2) and demonstrates that offenders have already started to rely on unmanned systems, which gives them a cutting edge (Section 3). It goes on to describe that the use of unmanned systems for the commission of maritime crimes does not imply that there is no human involvement at all, but that its nature changes since the offender’s involvement is remote rather than proximate in terms of both geography and time. In a next step, it is demonstrated that this shift from proximate to remote human involvement in the commission of maritime crimes conflicts with the underlying assumption of proximity on which the maritime crime provisions of LOSC are built, that is, that the perpetrator is on board the offending craft and in the vicinity of where the harmful act unfolds (Section 4). Against this backdrop, the various mechanisms intended to keep LOSC abreast of change are considered (Section 5); it is then explained that whilst the prevailing strategy – evolutionary interpretation – is generally a suitable method to keep LOSC in tune with the times, this approach is inappropriate for provisions of LOSC related to governing the suppression of maritime crime (Section 6). It is submitted that these provisions, which result from a conjunction between the law of the sea and (transnational) criminal law, must rather be subject to a ‘rule of law’-based interpretation. This, however, considerably curtails the available interpretive space and the possibility of accommodating the ‘robotics revolution’ at sea within Part VII of LOSC (Section 7).

2.

THE ‘ROBOTICS REVOLUTION’ HAS REACHED THE SEA

The ‘robotics revolution’4 has reached the sea. In August 2018, news circulated that for the first time an unmanned sailboat had successfully crossed the Atlantic Ocean.5 That same summer, an autonomous ferry started transporting passengers across a canal in the Norwegian city of Trondheim, demonstrating

See Chapter 1 of this volume. In general, see PW Singer, ‘The Robotics Revolution’ (Brookings Institution, 11 December 2012) available at www​.brookings​.edu/​opinions/​the​-robotics​-revolution. 5 The Microtransat Challenge, ‘SB Met Becomes First Boat to Complete the Microtransat Challenge’ (26 August 2018) available at www​.microtransat​.org/​news/​ sbmet​_press​_release​.php: the challenge is a transatlantic race for autonomous boats aimed at stimulating their development through friendly competition; in the last eight years, 23 other attempts to cross the Atlantic have failed. 3 4

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the ability of unmanned maritime systems to operate safely in confined and congested waters.6 Around the same time, a contract for the building of the Yara Birkland, an autonomous container ship with a cargo capacity of 120 TEU,7 was concluded.8 Admittedly, many present-day examples of unmanned systems at sea seem rudimentary, or at least in the nature of a prototype, and we are arguably still at the ‘horseless carriage’ stage of this new technology. Yet, in the world of civilian shipping, autonomous technology is likely to develop rapidly and soon become ubiquitous. This prediction receives strong support from the fact that the International Maritime Organization (IMO) recently initiated a regulatory scoping exercise for the use of Maritime Autonomous Surface Ships (MASS).9 The IMO does not engage lightly in exercises that may ultimately result in amendment of existing conventions or the adoption of new treaties, but only after a ‘compelling need’ for doing so has been established.10 Unmanned systems have entered not only the civilian shipping sector, but also the military and policing domains. For coastguards, unmanned systems are, inter alia, enablers by which to patrol vast maritime areas at lower cost and more discreetly than more traditional means permit.11 Danish and Norwegian

6 S Knapton, ‘Norway Invents Driverless Ferry to End Need for Footbridges … But Fears It Could Be Hacked’ (The Telegraph, 29 June 2018) available at www​.telegraph. co​.uk/​science/​2018/​06/​29/​norway​-invents​-driverless​-ferry​-end​-need​-footbridgesbut​ -fears/​. 7 The acronym stands for ‘Twenty Foot Equivalent Unit’, which is the standard container dimension. A 20-foot unit container is about six metres long; to ‘express the capacity of a container ship in a uniform manner, the number of containers that the ship can load is converted into a number of containers of the smallest size, i.e. those that are twenty feet in length’: Logistics Glossary, ‘TEU’ available at www​.logisticsglossary. com/term/teu/. 8 YARA International ASA, ‘YARA Selects Norwegian Shipbuilder VARD for Zero-Emission Vessel Yara Birkeland’ (Corporate Release, 15 August 2018) available at www​.yara​.com/​corporate​-releases/​yara​-selects​-norwegian​-shipbuilder​-vard​-for​-zero​ -emission​-vessel​-yara​-birkeland. 9 Currently, such scoping exercises are conducted by the Maritime Safety Committee, see IMO, ‘Report of the Maritime Safety Committee on its 98th Session’ (28 June 2017) IMO Doc MSC 98/23, [20], and the Legal Committee, see IMO ‘Report of the Legal Committee on the Work of its 105th Session’ (1 May 2018) IMO Doc LEG 105/14, [11.7]–[11.11]; each Committee considers the conventions falling within its purview. 10 D Lost-Sieminska, ‘The International Maritime Organization’ in MJ Bowman and D Kritsiotis (eds), Conceptual and Contextual Perspectives on the Modern Law of Treaties (CUP 2018) 912. 11 The Economist, ‘If Drones Ruled the Waves: Avast, Me Hearties’ (The Economist – The World If, 7 July 2018) available at www​.economist​.com/​the​-world​-if/​ 2018/​07/​07/​avast​-me​-hearties.

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authorities, for example, rely on the so-called sniffer, a device attached to an unmanned aerial vehicle that is able to track down ships using prohibited high-sulphur fuel.12 In the Pitcairn Island Marine Protected Area (MPA), the Wave Glider – an unmanned maritime system powered by wave and solar energy – has been deployed to counter illegal fishing.13 In addition to coastguards and port State authorities, navies have started to embrace the use of unmanned systems across the entire spectrum of their operations.14 This development is reflected in both strategic documents and changes in the institutional architecture of navies. By way of example, the Strategic Roadmap for Unmanned Systems was adopted by the US Department of the Navy in spring 2018 and will serve ‘as a guide for enabling the integration of Unmanned Systems into every aspect of Naval operations’.15 Contemporaneously, the US Navy’s acquisition chief disbanded the unmanned systems office – not because these systems were deemed unimportant, but because they are considered to be of such importance that they need to be integrated with all of the teams rather than handled separately.16 A further indicator pointing to the increased reliance on and integration of unmanned systems into naval forces is the growth of the respective budgets.17 Lastly, the conduct of major military exercises involving unmanned systems – such as the NB Mortensen, ‘Emissions Monitoring: Maintaining a Level Playing Field Post-2020’ (Marine Propulsion & Auxiliary Machinery, 17 September 2018) available at www​.mpropulsion​.com/​news/​view​,emissions​-monitoring​-maintaining​-a​-level​ -playing​-field​-post2020​_54253​.htm; the European Maritime Safety Agency has also started relying on this technology: EMSA, ‘Remotely Piloted Aircraft Systems (RPAS)’ available at www​.emsa​.europa​.eu/​operations/​rpas​.html. 13 Liquid Robotics, ‘How Unmanned Surface Vehicles Can Shine Light on Dark Targets & Cue Assets for Inspection and Interdiction’ available at https://​cdn2​.hubspot. net/hubfs/287872/website-downloads/LR-Shine-Light-On-Dark-Targets.pdf, 3–6. As per Section 24(1)(a) juncto (3)(d) Pitcairn Islands Marine Protected Area Ordinance of 2016, CAP.48, 2017 Rev Ed, ch 48 (PN), the presumption applies that any fishing vessel found or observed in the MPA ‘shall be deemed to be engaged in fishing’ and ‘unmanned aerial, surface or underwater vehicle observations’ are listed among the means by which such vessel may be tracked down and observed. 14 On the use of unmanned systems by navies, see Chapter 6 of this volume. 15 US Department of the Navy, ‘Strategic Roadmap for Unmanned Systems (Short Version)’ (29 May 2018) available at https://​news​.usni​.org/​2018/​05/​29/​summary​ -department​-navy​-strategic​-unmanned​-systems​-roadmap. 16 M Eckstein, ‘Navy Wants Unmanned Systems to Be Ubiquitous in Future Warfare’ (USNI News, 29 May 2018) available at https://​news​.usni​.org/​2018/​05/​29/​ navy​-wants​-unmanned​-systems​-ubiquitous​-future​-warfare. 17 D Klein, ‘Unmanned Systems and Robotics in the FY2019 Defense Budget’ (The Association for Unmanned Vehicle Systems International, 14 August 2018) available at www​.auvsi​.org/​%E2​%80​%8Bunmanned​-systems​-and​-robotics​-fy2019​-defense​ -budget. 12

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2016 Unmanned Warrior exercise held by the UK Royal Navy and involving 50 different systems operating autonomously or by remote control18 – underline the growing importance of this new technology in naval operations. In the realm of maritime security, unmanned maritime systems are certainly no longer quantité négligeable – not only on the part of the ‘enforcers’, but also on the part of ‘criminals’.

3.

UNMANNED SYSTEMS AND CRIMES AT SEA

It is commonplace to argue that ‘criminals’ are quicker to embrace and rely on new technology than ‘enforcers’19 and that the latter group lags behind in developing tools and strategies to react to the malicious use of disruptive technology.20 Indeed, unmanned systems have opened up new avenues for those intent on compromising maritime security. Perpetrators have already relied on unmanned systems in distinct ways to commit crimes at sea – and the potential of this new technology for achieving nefarious ends is far from being fully exploited. Unmanned systems are, first of all, capable of carrying explosive payloads. Reports on the use of unmanned boats to damage or partly destroy ships, port infrastructure and offshore installations, and to inflict harm to persons in the vicinity of or on board the targeted objects, have multiplied. For example, Houthi rebels used remote-controlled boats to carry out attacks against various targets, notably the Saudi frigate Al Madinah, a Saudi-flagged oil tanker, and an oil depot and distribution station near the Yemeni border.21 On land, so-called Islamic State used off-the-shelf drones, which were equipped with improvised explosive devices, to launch (deadly) attacks against persons in Iraq and Syria.22 The use of unmanned aerial vehicles mounted with explosives

UK Royal Navy, ‘Unmanned Warrior’ available at www​.royalnavy​.mod​.uk/​ unmannedwarrior. 19 A Hallett and V Weedn, ‘Unmanned Systems Technology Use by Law Enforcement’ in E Katz and J Halámek (eds), Forensic Science: A Multidisciplinary Approach (Wiley 2016) 409. 20 MS Schmidt and E Schmitt, ‘Pentagon Confronts a New Threat from ISIS: Exploding Drones’ (The New York Times, 11 October 2016) available at www​.nytimes. com/2016/10/12/world/middleeast/iraq-drones-isis.html (on the Pentagon being slow in anticipating and developing tools to react to the use of drones by so-called Islamic State). 21 R Perper, ‘Drone Boats Filled with Explosives Are the New Weapon in Global Terrorism’ (Business Insider, 4 October 2018) available at www​.businessinsider​.com/​ drone​-boats​-filled​-with​-explosives​-houthis​-saudi​-arabia​-2018​-10​?r​=​US​&​IR​=​T. 22 D Rassler, ‘The Islamic State and Drones: Supply, Scale, and Future Threats’ (Combating Terrorism Center at West Point, United States Military Academy, 18

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launched from the shore or ships to cause havoc at sea is considered a realistic scenario23 although the technology is not yet deemed advanced enough to both transport and broadly disperse chemical, biological or radiological material.24 Smuggling is a further type of illicit activity at sea where remote-controlled or autonomous systems could be a game-changer.25 For drug-trafficking organizations, for example, unmanned vessels offer a series of advantages compared to manned ‘narcosubs’: in addition to a high level of stealth, the fact that no crew is on board is not only cost saving,26 but considerably reduces the risk of arrested suspects disclosing information in return for a plea bargain.27 Indeed, for offenders, the abundant possibilities of unmanned systems drastically tip the risk ratio of criminal endeavours in their favour. The use of remote-controlled or autonomous technology provides ample distance from the actual scene of the crime.28 Such distance minimizes the perpetrator’s risk of being killed, injured or arrested; and, more generally, it complicates the attribution of criminal conduct.29 Besides, relying on unmanned systems enhances the perpetrator’s efficiency as they can be used to sequence attacks over time and can be operated in swarms to overwhelm the defence of the targeted ship or infrastructure.30 In fact, the use of a single underwater unmanned system July 2018) available at https://​ctc​.usma​.edu/​islamic​-state​-drones​-supply​-scale​-future​ -threats/​, passim. 23 PW Singer, ‘Wired for War? Robots and Military Doctrine’ (2009) 52 Joint Force Quarterly 104, 106; navies train against such attacks: TASS, ‘Russian Caspian Fleet Crews Hold Anti-Drone Military Drills’ (TASS Russian News Agency, 14 March 2018) available at http://​tass​.com/​defense/​993901. 24 W Rudischhauser, ‘Autonomous or Semi-Autonomous Weapons Systems: A Potential New Threat of Terrorism?’ (2017) Federal Academy for Security Policy (Germany) Security Policy Working Papers No. 23/2017, 1 and 3, available at www​.baks. bund​.de/​en/​working​-papers. 25 CH Allen, ‘The Seabots Are Coming Here: Should They Be Treated as “Vessels”?’ (2012) 65 The Journal of Navigation 749, 750; for drug smuggling: Foreign Brief, ‘Narco-Subs, Cartels and Law Enforcement’ (Foreign Brief – Geopolitical Risk Analysis, 9 May 2016) available at www​.foreignbrief​.com/​security​-terrorism/​narco​ -subs. 26 M Wells, ‘Life on Board a Narcosubmarine’ (InSight Crime, 13 September 2013) available at www​.insightcrime​.org/​news/​analysis/​life​-on​-board​-a​-narcosubmarine/​. 27 C Allen and C Allen, ‘20,000 Drones under the Sea’ Proceedings Magazine (US Naval Institute, July 2018) available at www​.usni​.org/​magazines/​proceedings/​2018​-07. 28 MR Patterson and SJ Patterson, ‘Unmanned Systems: An Emerging Threat to Waterside Security’ (paper presented at the International WaterSide Security Conference, Institute of Electrical and Electronics Engineers, 3–5 November 2010) available at https://​ieeexplore​.ieee​.org/​document/​5730271, 3. 29 Rudischhauser (n 24) 3. 30 J Kraska, ‘Effective Implementation of the 2005 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation’ (2017) 70 Naval War College Review 1, 3.

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may offer enormous advantage to offenders since most of today’s defensive measures are geared towards thwarting surface rather than subsurface threats. Even the US Coast Guard is said to have ‘almost no capability to detect and disrupt an underwater attack’, and the antisubmarine warfare capabilities of the US Department of Defense are not ‘configured to confront UUVs [Unmanned Underwater Vehicles] already available and in development’.31 The use of unmanned technology to engage in illegal activity at sea is expected to grow. In terms of access, scientists asserted as early as 2009 that criminal organizations and terrorist groups are capable of developing sophisticated unmanned maritime systems by using commercial, off-the-shelf components.32 The advent of 3D printers is said to further facilitate the production of customized unmanned systems.33 In the past, criminals also relied on ready-to-use technology,34 the online acquisition35 of which does not require any more than ‘the ability to press the “Go” button and to make a cash transfer’.36 The improved usability is another driving force behind the increased use of unmanned systems for malicious purposes. Similar to the development of computers – which evolved from big, bulky military devices to tablets with apps designed for young children37 – unmanned systems have steadily progressed in terms of being user friendly and utilizable without specialized skills.38 This has resulted in a broader range of potential users39 and led the profit-seeking industry to step in. As a result, the prices of unmanned technology have dropped significantly, making it an affordable means of crime.40

Allen and Allen (n 27). Patterson and Patterson (n 28) 1. 33 D Lumb, ‘US Military Tests System for On-Demand 3D-Printed Drones’ (Gadgetry, 18 December 2017) available at www​.engadget​.com/​search/​?search​-terms​=​ military+tests+3d. 34 This holds true, for example, for the use of drones by so-called Islamic State: E Schmitt, ‘Papers Offer a Peek at ISIS’ Drones, Lethal and Largely Off-the-Shelf’ (The New York Times, 31 January 2017) available at www​.nytimes​.com/​2017/​01/​31/​world/​ middleeast/​isis​-drone​-documents​.html. 35 Especially on the ‘dark net’: Rudischhauser (n 24) 2. 36 C Heyns, ‘Human Rights and the Use of Autonomous Weapons Systems (AWS) during Domestic Law Enforcement’ (2016) 38 Human Rights Quarterly 350, 360. 37 Singer (n 4). 38 Corporate Risk Services, ‘Drones: Threat from Above’ (Intelligence Bulletin, 2017) available at www​.g4s​.ca/​-/​media/​g4s/​canada/​files/​whitepapers/​usa/​drones​ _threat​_from​_above​.ashx, 1: ‘Technology improvements … now allow for drones to be flown by anyone with little or no experience in aerial flying’; Rudischhauser (n 24) 2: ‘even our kids can fly them’. 39 Regarding unmanned aerial systems specifically see Rudischhauser (n 24) 4. 40 C Muñoz, ‘Adversaries Challenge America’s Drone Dominance’ (The Washington Times, 2 October 2017) available at www​.washingtontimes​.com/​news/​ 31 32

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Finally, the range of tasks that unmanned systems are able to (reliably and effectively) perform is growing at a relentless pace,41 making them a versatile tool to commit criminal offences. Against this backdrop, there is a real chance that, in the future, criminals will rely in one way or another on unmanned technology to commit crimes at sea. Yet, as the saying goes: ‘It’s tough to make predictions, especially about the future.’42 In the 1920s – when aviation was just about to become ubiquitous – the future of piracy was seen to lie in attacks committed by aircraft.43 This scenario, however, never materialized.44 By the same token, when the piracy rules were first codified, no one reckoned that piracy committed by ships would undergo a true revival in the first decade of the twenty-first century. During the drafting of the 1958 Geneva Convention on the High Seas, some delegations even proposed the deletion in toto of the provisions on piracy because the phenomenon ‘no longer constituted a general problem’.45 Although predicting the future is impossible, let us cautiously assume that criminals will increasingly rely on unmanned systems to commit crimes at sea and query whether the maritime security rules contained in LOSC can accommodate the developing turn to this new technology.

4.

A SHIFT FROM PROXIMATE TO REMOTE HUMAN INVOLVEMENT

In his 2008 Report on Oceans and the Law of the Sea, the UN Secretary-General identified seven specific threats to maritime security, including piracy and maritime terrorism as well as illicit trafficking in arms, weapons of mass destruc2017/​oct/​2/​us​-military​-drone​-dominance​-challenged​-by​-enemies/​; Corporate Risk Services (n 38) 1; Rudischhauser (n 24) 3. 41 US Department of Defense, ‘Unmanned Systems Integrated Roadmap 2017–2042’ (30 August 2018) available at https://​news​.usni​.org/​2018/​08/​30/​pentagon​ -unmanned​-systems​-integrated​-roadmap​-2017​-2042, 20 (also naming factors reducing the pace of development, notably legal and policy constraints and trust issues). 42 Quote from the baseball-playing philosopher Yogi Berra: The Economist, ‘The Perils of Prediction’ (The Economist – Books and Arts, 31 May 2007) available at www. economist​.com/​letters​-to​-the​-editor​-the​-inbox/​2007/​07/​15/​the​-perils​-of​-prediction​ -june​-2nd. 43 Harvard Draft Convention and Commentary, reprinted in ASIL, ‘Codification of International Law: Part IV – Piracy’ (1932) 26 American Journal of International Law Supplement 739, 768 and 809. 44 TR Salomon, Die internationale Strafverfolgungsstrategie gegenüber somalischen Piraten (Springer 2017) 149. 45 United Nations Conference on the Law of the Sea, ‘Official Records of the UN Conference on the Law of the Sea, Volume IV (Second Committee (High Seas: General Regime))’ (2009) UN Doc A/CONF.13/C.2/ST.26-30 (24 February–27 April 1958) 78.

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tion and drugs.46 These maritime crimes are, inter alia, governed by a series of (suppression) treaties, which define the respective prohibited conduct and allocate jurisdiction to enforce and adjudicate among different categories of States.47 Despite the differing approaches taken by these treaties to suppress criminality at sea,48 they seem to share a commonality: they are premised on the (implicit) underlying assumption that a human being is physically present on board the craft used to engage in the respective prohibited conduct (that is, to fulfil the actus reus of the respective offence). The scenario where an unmanned system is used to carry out prohibited acts at sea (for example, to deliver and discharge explosives damaging a ship or to transport drugs) was not on the drafters’ radar. The use of unmanned systems for the commission of maritime crimes does not imply that there is no human involvement at all, yet the nature changes: the offender’s involvement is remote rather than proximate in terms of both geography and time. To understand, a brief discussion of potential definitions of the term ‘unmanned system’, which is neither a legal nor a generally accepted term,49 is in order. The term can be defined as an ‘air, land, surface, subsurface, or space platform that does not have the human operator physically onboard the platform’.50 As regards maritime systems specifically, the definition of the Comité Maritime International equally places emphasis on the absence of persons on board the craft and defines ‘unmanned ship’ as ‘a ship that has no crew members on board’, which, depending on the (variable) level of automation, ‘may be operated either remotely … or in a fully automated mode without human intervention’.51 This latter definition alludes to the command-and-control relationship between the human being and the system – that is, the ‘extent to which humans are involved in the execution

46 UNGA, ‘Oceans and the Law of the Sea: Report of the Secretary-General’ (2008) UN Doc A/63/63, [54]–[113]. 47 For more detail see N Klein, Maritime Security and the Law of the Sea (OUP 2011) 302–319. 48 For example, regarding the extent to which they deviate from the principle of exclusive flag State jurisdiction. 49 W Heintschell von Heinegg, ‘The Exasperating Debate on the Legality of Unmanned Systems: Time for a Realistic Approach’ in C Callies (ed), Herausforderungen an Staat und Verfassung (Nomos 2015) 146. 50 US Department of Defense Directive Number 3000.09: Autonomy in Weapons Systems (21 November 2012, Incorporating Change 1, 8 May 2017) available at www. esd​.whs​.mil/​portals/​54/​documents/​dd/​issuances/​dodd/​300009p​.pdf. 51 IMO, ‘Regulatory Scoping Exercise for the Use of Maritime Autonomous Surface Ships (MASS): Submission by Comité Maritime International Working Group on Unmanned Ships (CMI IWG US)’ (13 February 2018) IMO Doc MSC/99, Section 2.

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of the task carried out by the machine’.52 While remote-controlled systems are subject to permanent and full control by a human, so-called ‘autonomous’ systems are generally classified in three groups: first, semi-autonomous (or human in the loop), which ‘require human input at some stage of the task execution’; second, ‘human-supervised autonomous’ (or human on the loop), which ‘operate independently but are under the oversight of a human who can intervene if something goes wrong’; third, ‘fully autonomous’ (or human out of the loop) that ‘operate completely on their own and where humans are not in a position to intervene’, for example in selecting targets and delivering force.53 In the context of international rules governing maritime crime, the ‘unmanned’ feature generally seems to be more important than the exact command-and-control relationship between the offender and the system.54 As mentioned above, the use of unmanned systems to commit crimes at sea entails a shift from proximity to remoteness as regards the offender’s involvement. If perpetrators rely on remote-controlled systems, they are involved in real time but act geographically at a distance from where the harmful act unfolds – be it from dry land, the territorial sea, the exclusive economic zone or the high seas. If offenders commit the offence with a system featuring a certain level of autonomy, their involvement is remote in terms of both geography and time: the person launches the system and intervenes from a place distant from where the harmful act occurs. Further, between the moment when a system with high endurance and reach is launched and the moment it causes harm at sea, a considerable amount of time may elapse. This shift towards the remote commission of maritime offences contrasts with the assumption of proximity underlying the provisions dealing with maritime crime in Part VII of LOSC. Taking the example of piracy – the most densely regulated crime of LOSC – the idea of proximity is embedded in all the relevant provisions. The definition of the offence, for example, suggests the presence of persons on board the offending craft when stating that the piratical act must be ‘committed … by the crew or passengers of a private ship’ against another ship on the high seas.55 The most compelling enforcement measure – the arrest of piracy suspects – is only available against ‘persons … on board’ the seized pirate ship and is, furthermore, geographically limited to

52 V Boulanin and M Verbruggen, ‘Mapping the Development of Autonomy in Weapon Systems’ (Stockholm International Peace Research Institute, November 2017) available at www​.sipri​.org/​publications/​2017/​other​-publications/​mapping​ -development​-autonomy​-weapon​-systems, 5. 53 Ibid, 8. 54 The latter is not irrelevant though; it could, for example, play a role for the ‘dominant control’ criterion of definition of a pirate ship (LOSC, Article 103). 55 LOSC, Article 101(a).

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‘the high seas’.56 As regards adjudicative jurisdiction, the phrase ‘[t]he courts of the State which carried out the seizure may decide upon the penalties to be imposed’57 also rests on the assumption that the offender is on board the seized craft. The list of examples can be continued – yet, before delving into a detailed analysis of whether the provisions of piracy can accommodate the turn to unmanned systems, some reflection on LOSC’s capability to adapt to change is necessary. We must, in particular, decide on the stance to be taken concerning the interpretation of provisions dealing with maritime crime – concretely, whether the widely advocated evolutionary method is apposite for interpreting this specific type of LOSC provision.

5.

MAIN INTERPRETIVE STRATEGY TO KEEP LOSC ABREAST OF CHANGE

LOSC contains a variety of explicit and implicit mechanisms to keep itself abreast of change.58 First of all, it can be formally amended through either a simplified or more formal procedure.59 But so far, notably due to the high entry into force hurdle,60 no amendments have been adopted and the chances are slim that this will happen in the near future.61 Given that the amendment procedure is an ‘unattractive option’62 and tacit modification through subsequent practice63 – absent any meaningful practice on unmanned systems in relation to Part VII of LOSC – is not yet ripe for consideration at this stage, we focus on interpretation as a means to preserve the treaty from overly rapid erosion. It has become customary to argue that LOSC must be interpreted in an evolutionary way. This broad interpretive stance is generally justified by reference to the special nature of LOSC, and commentators point to at least

LOSC, Article 105, first sentence. LOSC, Article 105, second sentence. 58 I Buga, ‘Between Stability and Change in the Law of the Sea Convention: Subsequent Practice, Treaty Modification, and Regime Interaction’ in DR Rothwell, Alex G. Oude Elferink, Karen N. Scott and Tim Stephens (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 46. 59 LOSC, Articles 313 and 312. 60 LOSC, Article 316. 61 RR Churchill, ‘The 1982 United Nations Convention on the Law of the Sea’ in Rothwell et al (eds) (n 58) 42–43. 62 S Boyle, ‘Further Development of the Law of the Sea Convention: Mechanisms for Change’ (2005) 54 International & Comparative Law Quarterly 563, 564. 63 Buga (n 58) 47–48 (on the various ways subsequent practice is legally relevant to LOSC, notably in constituting the parties’ agreement to tacitly modify the treaty) and 57–59 (on LOSC, Article 105 providing a ‘potential instance of tacit modification’). 56 57

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four different features of the Convention that make it particularly suitable for evolutionary interpretation. To begin with, LOSC is widely hailed as the ‘Constitution of the Oceans’.64 This famous reference – generally ascribed to Tommy Koh, the President of the Third United Nations Conference on the Law of the Sea,65 but actually used earlier66 – has been repeated so many times67 that ‘it has become integral to our understanding’ of LOSC.68 Thereby, the somewhat cliché-ridden expression ‘Constitution of the Oceans’ is not simply used as a rhetorical device to underline the stature and breadth of the treaty, but as a way to implicitly or explicitly formulate a claim – notably as regards the interpretation of LOSC.69 Following the general discourse on the interpretation of ‘constitutional treaties’ – that their ‘intrinsically evolutionary nature’ requires that they grow over time so as not to lose their contemporary relevance70 – an evolutionary approach is suggested for LOSC: ‘Like any Constitution … if it cannot or does not evolve it

64 AG Oude Elferink, ‘Introduction’ in AG Oude Elferink (ed), Stability and Change in the Law of the Sea: The Role of the LOS Convention (Martinus Nijhoff Publishers 2005) 2. 65 United Nations, The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea (United Nations New York 1983) xxxiii. 66 See, for example, EM Borgese, ‘A Constitution for the Oceans’ in EM Borgese and D Krieger (eds), The Tides of Change: Peace, Pollution, and Potential for the Oceans (Mason/Charter 1975). 67 See, for example, Churchill (n 61) 44–45; J Barrett, ‘The UN Convention on the Law of the Sea: A “Living” Treaty?’ in J Barrett and R Barnes (eds), Law of the Sea: LOSC as a Living Treaty (BIICL 2016) 15. Not infrequently, a parallel is drawn between the UN Charter (the Constitution for the international community of States) and LOSC: see, for example, Boyle (n 62) 566; R Macdonald, ‘The Charter of the United Nations in Constitutional Perspective’ (1999) 20 Australian Yearbook of International Law 205, 220. 68 SV Scott, ‘The LOS Convention as a Constitutional Regime for the Oceans’ in Oude Elferink (ed) (n 64) 12. 69 For claims beyond (an evolutionary) interpretation, see, for example, AG Oude Elferink, ‘Introduction’ (n 64) 2 (the constitutional character may imply different rules for its amendment); Churchill (n 61) 45 (from the constitutional nature follows that the presumption that any activity at sea is regulated by LOSC and that other treaties governing activities at sea are compatible with LOSC, that the effects of LOSC on States not party to it ‘may extend beyond the traditional position in international law’, and that its amendment by informal means must not be too easily assumed). 70 R Jennings and A Watts, Oppenheim’s International Law, vol. I (9th edn, Longman 1992) 1268, on ‘constitutional treaties’ in general. See Bardo Fassbender, ‘The United Nations Charter as Constitution of the International Community’ (1998) 36 Columbia Journal of Transnational Law 529, 595–598 on the UN Charter specifically.

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is unlikely to last.’71 In sum, the constitutional nature of LOSC is an argument justifying the adoption of an expansive approach towards its interpretation.72 Another justification for its evolutionary interpretation is closely related to the constitutional argument. Constitutions generally contain fundamental norms providing ‘a legal frame and guiding principles’ for the life of a community,73 rather than fine-grained, statute-like rules. LOSC is at times described as exhibiting this ‘framework nature’, meaning that – similar to a constitution – it sets out a legal frame which is subject to a ‘process of continuing refinements’;74 that is, one ‘within which detailed norms to regulate the various uses of the sea may be developed and applied’.75 Similarly, it has been argued that LOSC ‘articulate[s] a system of ocean governance’ but ‘does not specify in detail’ the subject matter it is dealing with76 and ‘does not contain comprehensive and detailed rules regulating specific uses of the sea’.77 At times, even the terms ‘framework convention’78 and ‘framework agreement’79 appear in descriptions of the legal nature of LOSC. Yet these terms are not used in their usual, technical sense to denote treaties foreseeing particularly low hurdles to amendment or a (simplified) procedure for the adoption of further protocols or annexes in order to keep them afloat in a changing world.80 Rather, in the present context, these terms are used to describe the ‘texture’ of specific norms or even whole parts of LOSC; that is, to make a statement on their ‘normative completeness’.81 Concretely, these commentators suggest that the norms of LOSC are relatively general and openly formulated (which is in line with the ‘constitutional nature’ LOSC is said to possess) and do not feature a high

Boyle (n 62) 566. Similar to the European Court of Human Rights declaring the European Convention on Human Rights a ‘constitutional instrument of European public order’ to justify an expansive approach towards its interpretation: see, for instance, Loizidou v Turkey (1995) 20 EHRR 99, [75]. 73 Fassbender (n 70) 536. 74 Macdonald (n 67) 220. 75 Churchill (n 61) 30, on the framework nature see also 44–45. 76 OR Young, ‘Commentary on Shirley V. Scott “The LOS Convention as a Constitutional Regime for the Oceans”’ in Oude Elferink (ed) (n 64). 77 Churchill (n 61) 29–30. 78 Macdonald (n 67) 220. 79 M Wood, ‘Reflections on the United Nations Convention on the Law of the Sea: A Living Instrument’ in Barrett and Barnes (eds) (n 67) lxxviii: ‘Part XII is often referred to as a framework agreement for the protection of the marine environment.’ 80 That LOSC is not a ‘framework treaty’ in the technical sense of, for example, environmental treaties: Boyle (n 62) 564, rather, its amendment is very difficult, see text relating to footnotes 60 and 61. 81 C Brölmann, ‘Typologies and the “Essential Juridical Character” of Treaties’ in Bowman and Kritsiotis (n 10) 89. 71 72

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degree of density and specificity (as statutory norms generally do). This ‘slack texture’ makes LOSC a ‘flexible instrument’82 and, as the argument goes, renders it particularly fit for an evolutionary interpretation. Third, in order to emphasize the capacity of LOSC to adapt to change and its potential to retain contemporary relevance, it is qualified as a ‘living instrument’.83 Judge Lucky from the International Tribunal for the Law of the Sea has described the consequences for interpretation that flow from this characterization of LOSC as follows: The 1982 Convention and the Statute of the Tribunal are ‘living instruments’. This means that they ‘grow’ and adapt to changing circumstances. An act/statute is always ‘speaking’. The law of the sea is not static. It is dynamic and, therefore, through interpretation and construction of the relevant articles a court or tribunal can adhere and give positive effect to this dynamism.84

This quote reveals that, in the context of LOSC, the ‘living instrument’ metaphor is deployed for a similar purpose as in other fields of law (notably in international human rights law85) and as regards other treaties of a constitutional nature (primarily, the UN Charter): namely to suggest that a specific treaty must, like a living organism, grow over time and adapt to changing circumstances. In other words, it is used to justify an expansive construction of LOSC, one that ‘arguably deviates from the understanding that the drafters of the treaty had’.86 In this vein, the editors of this book highlight the benefit of the ‘living treaty’ approach in the context of maritime security specifically, stressing that it facilitates the interpretation of LOSC ‘in a way that allows for current security challenges and threats to fit within the meaning of its various provisions’.87 A fourth, yet rarely made, argument for justifying an evolutionary interpretation of LOSC pertains to its subject matter. It has been argued that international rules regulating ‘a particular area of human activity at a given moment based on the scientific and technological knowledge available at that

Wood (n 79) lxxviii. Boyle (n 62) 584; Wood (n 79) lxxvii and lxxviii; R Barnes, ‘The Continuing Vitality of LOSC’ in Barrett and Barnes (eds) (n 67) 467. 84 Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission (Advisory Opinion, 2 April 2015) ITLOS Reports 2015, [69]. 85 Boyle (n 62) 584, stating that LOSC is ‘no less a dynamic or living instrument … than human rights’. 86 On the use of the ‘living instrument’ metaphor in general, see, for example, D Moeckli and ND White, ‘Treaties as “Living Instruments”’ in Bowman and Kritsiotis (eds) (n 10) 154–155. 87 See Chapter 1 of this volume. 82 83

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time’ – such as LOSC – require ‘frequent adaptation’.88 Hence, they must be construed in a dynamic rather than static way. In sum, LOSC belongs to the category of treaties for which a regime-specific interpretation has been suggested. Concretely, the characterization of LOSC as a ‘constitutional’, ‘framework’ or ‘living’ treaty on the one hand, and the subject matter-based argument on the other, are deployed to justify its evolutionary interpretation. This mode of interpretation must be distinguished from two others: first, as per Article 31(1) VCLT,89 the ‘object and purpose’ is used ‘to elucidate a textual approach for discerning the “ordinary meaning” to be given to a treaty’s terms’; second, the ‘teleological approach’, which in its classic sense takes ‘the treaty’s objective as a guiding principle for interpretation of the text’.90 The ‘evolutionary’ or ‘living instrument’ approach differs from these two other modes in that ‘it takes into account the social context and may even necessitate reformulation of the original object and purpose’.91 In other words, suggesting an evolutionary interpretation for LOSC implies that it belongs to the consortium of treaties that ‘have acquired a life of their own’.92 Or to use the metaphor of Judge Álvarez of the International Court of Justice, which seems purpose made for LOSC: it is one of those treaties that ‘can be compared to ships which leave the yards in which they have been built, and sail away independently, no longer attached to the dockyard’.93

6.

MARITIME CRIME PROVISIONS NOT APPOSITE FOR EVOLUTIONARY INTERPRETATION

An evolutionary interpretation, the widely championed means to keep LOSC abreast of change, is certainly apposite for parts – arguably even large parts – of LOSC. However, this expansive interpretive approach is not suitable for all of its 320 provisions because it rests on characterizations of LOSC that are too generalized and do not account for the varied character of the Convention’s provisions both in terms of ‘texture’ and regulated subject matter. 88 P-M Dupuy, ‘Evolutionary Interpretation of Treaties: Between Memory and Prophecy’ in E Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (OUP 2011) 137. 89 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT). 90 C Brölmann, ‘Specialized Rules of Treaty Interpretation’ in DB Hollis (ed), The Oxford Guide to Treaties (OUP 2012) 512. 91 Ibid. 92 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15, 53 (Dissenting Opinion of Judge Álvarez). 93 Ibid.

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Let us first turn to the ‘texture’ of LOSC. We have seen that the evolutionary interpretation of LOSC is mainly justified by the ‘slack texture’ of the Convention, viz its characterization as a ‘constitutional’ or ‘framework’ treaty with general norms meant to grow and take shape over time. Admittedly, this characterization is pertinent for many of LOSC’s provisions – but not to its provisions dealing with maritime crime. Taking the example of piracy, LOSC contains eight provisions dealing solely with this criminal phenomenon: they define the offence,94 describe the ambit and types of enforcement measures as well as the craft that can be used to police the sea,95 regulate liability in cases of unjustified interference with freedom of navigation,96 govern adjudicative jurisdiction,97 and stipulate a duty to cooperate in the repression of piracy.98 Together, they read like a ‘mini suppression treaty’ on a transnational maritime crime and feature a rather high degree of specificity, precision and completeness. They bear a greater resemblance to norms contained in a criminal statute or a code of criminal procedure than norms generally comprised in constitutions and framework legal instruments. Some of the piracy provisions are even considered self-executing in certain domestic jurisdictions, which requires, inter alia, a sufficient level of precision.99 For example, various commentators suggest that the definition of piracy in Article 101 LOSC amounts to an international crime based on which a suspect may be prosecuted in domestic criminal courts.100 Furthermore, the norm on the seizure of a pirate ship in Article 105 LOSC has been invoked as the legal basis for the arrest of piracy suspects absent a domestic norm.101

94 LOSC, Article 101 (defining piracy); Articles 103 and 104 (defining the pirate ship); Article 102 (special case of warships and State vessels engaging in piracy). 95 LOSC, Article 110 (right of visit); Article 105, first sentence (seizure of a pirate ship); Article 107 (vessels authorized to seize a pirate ship). 96 LOSC, Article 106 (liability for seizure without adequate grounds). 97 LOSC, Article 105, second sentence (adjudicative jurisdiction). 98 LOSC, Article 100 (cooperation duty). 99 K Kaiser, ‘Treaties, Direct Applicability’, Max Planck Encyclopedia of Public International Law (last updated February 2013) available at http://​opil​.ouplaw​.com/​ home/​EPIL [16]. 100 D Guilfoyle, ‘Book Review: Robin Geiss and Anna Petrig, Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden’ (2011) 11 International Criminal Law Review 910, 912–913; R Wolfrum, ‘Hohe See und Tiefseeboden (Gebiet)’ in WG Vitzthum (ed), Handbuch des Seerechts (CH Beck 2006) 307. The author of the present chapter disagrees with this view, see A Petrig, ‘Piracy’ in Rothwell et al (eds) (n 58) 859. 101 A Petrig, Human Rights and Law Enforcement at Sea: Arrest, Detention and Transfer of Piracy Suspects (Brill Nijhoff 2014) 221.

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Overall, the ‘texture’ of the piracy provisions (and other norms governing maritime crime102) resembles statutory rather than constitutional provisions; they are specific and precise rather than general, and they are quite comprehensive rather than providing a mere frame to be filled in progressively. In short, the characteristics generally adduced to justify an evolutionary interpretation of LOSC are simply not present in the piracy provisions and the arguments for an expansive construction fail. This is not a surprising finding since the available ‘interpretive space’ varies according to the texture of a treaty – the less open-ended and more detailed a provision, the smaller the interpretive freedom.103 Applied to the provisions on piracy, there is considerably less ‘interpretive space’ as compared to the open-textured, ‘constitutional’ provisions of LOSC. We reach the same conclusion if we follow the analogy with the domestic legal order from where the ‘living instrument’ concept was initially borrowed:104 most domestic systems ‘proceed on the assumption that for each type of legal instrument – such as constitutions, statutes, contracts, and wills – there is a different set of interpretive rules, standards, and canons’.105 Given that the living instrument doctrine was developed in the context of (international) constitutional provisions specifically, it may not be readily transferred to (international) statutory provisions, for which the interpretive freedom is generally understood to be more curtailed. It is not only the varied ‘texture’ of LOSC’s provisions that prevent their uniform (evolutionary) interpretation, but also the wide array of subject matter they govern, which leads us to the content of LOSC. The mandate of the Third United Nations Convention on the Law of the Sea was ‘to adopt a convention See, for instance, LOSC, Article 111 (right of hot pursuit). M Waibel, ‘Uniformity versus Specialisation: A Uniform Regime of Treaty Interpretation?’ in CJ Tams, A Tzanakopoulos and A Zimmermann (eds), Research Handbook on the Law of Treaties (Edward Elgar Publishing 2014) 385. The claim to pursue a varied approach to interpretation of treaties with provisions of highly varied texture has been formulated in various fields: for international criminal law, see LN Sadat and JM Jolly, ‘Seven Canons of ICC Treaty Interpretation: Making Sense of Article 25’s Rorschach Blot’ (2014) 27 Leiden Journal of International Law 755, 759, stating that the Rome Statute contains constitutional provisions but also provisions ‘performing the function of legislation’ (i.e. of a statutory nature), and ‘depending upon which provision is sought to be interpreted, a “plain meaning”, subjective, or teleological (or effective) approach may be appropriate’; for the UN Charter, see P Kunig, ‘United Nations Charter, Interpretation of’, Max Planck Encyclopedia of Public International Law (last updated September 2006) available at http://​opil​.ouplaw​.com/​ home/​EPIL [3]–[4], suggesting that different rules of interpretation be applied for its ‘contractual’ and ‘normative’ elements. 104 Moeckli and White (n 86) 136–137. 105 N Jain, ‘Interpretive Divergences’ (2017) 57 Virginia Journal of International Law 45, 46. 102 103

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dealing with all matters relating to the law of the sea … bearing in mind that the problems of ocean space are closely interrelated and need to be considered as a whole’.106 Both the sought-after aims of thematic comprehensiveness and a holistic approach have been successfully implemented by the drafters. LOSC indeed ‘regulates, in greater or lesser detail, almost every possible activity on, in, under, and over the sea’107 and a Flying Dutchman wandering the sea areas of the world, carrying his copy of the Convention, would always be able to answer in legal terms the questions: who am I? who is that over there? where am I? what may I do now? what must I do now? The Convention would never fail him.108

As a result of this comprehensive and holistic approach, LOSC features – despite being the law of the sea treaty – an intradisciplinary nature. Its norms belong to such diverse fields as international institutional law, international environmental law and transnational criminal law109 – tied together by the fact that they are ‘all dealing with the whole nonland area of the world’.110 Hence, LOSC has been rightly qualified as a ‘hybrid’ treaty.111 Similar to other modern treaties (for example, the Rome Statute112), it governs a plurality of relationships113 and its different parts perform vastly different functions,114 which range from setting up international institutions115 to regulating marine

UNGA, ‘Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Underlying the High Seas Beyond the Limits of Present National Jurisdiction and Use of Their Resources in the Interests of Mankind, and Convening of the Third United Nations Conference on the Law of the Sea’ (16 November 1973) UN Doc A/Res/3067(XXVIII) [3]. 107 Churchill (n 61) 24; see also LOSC, preamble, [1]. 108 P Allott, ‘Power Sharing in the Law of the Sea’ (1983) 77 American Journal of International Law 1, 24. 109 Barrett (n 67) 15 noting that the ‘tentacles [of LOSC] extend horizontally into other areas of international law’. 110 Allott (n 108) 24. 111 S Rosenne, Developments in the Law of Treaties 1945–1986 (CUP 1989) 204. 112 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (Rome Statute), which Jain (n 105) 48, describes as ‘a cross between an international contract between states, a constitution that establishes an international community committed to anti-impunity, and a criminal law statute under which individuals may be prosecuted and convicted’. 113 See Allott (n 108) 8–9 and 28–30 (Annexes A–C), identifying 57 kinds of legal persons, 58 legal sea areas and 59 legal relations governed by LOSC. 114 Jain (n 105) 48. 115 Rosenne (n 111) 204; T Treves, ‘The Law of the Sea “System” of Institutions’ (1998) 2 Max Planck Yearbook of United Nations Law 325, 330–331: LOSC sets up three institutions, which are the International Sea-Bed Authority, the International 106

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scientific research116 and preserving maritime security. Even within one thematic set of provisions this intradisciplinary nature is evident; the provisions on maritime crime are paradigmatic in this respect: transnational crimes are addressed in LOSC because their commission presupposes successful transportation and ‘shipping represents a centrally important mode of transport in the era of globalization’.117 Hence, rules governing transnational crimes at sea, such as piracy,118 are perforce a composite of elements deriving from the law of the sea (for example, the reference to the high seas, a maritime zone, in the definition of piracy) and elements originally stemming from criminal law (for example, the description of the various types of enforcement measures granted vis-à-vis a pirate ship and piracy suspects). It is submitted that such ‘hybrid’ (or intradisciplinary) treaties require a ‘heterogeneous approach’ to interpretation, meaning that ‘even within the context of a single treaty, a multiplicity of interpretive methods is warranted’.119 To apply one single, say evolutionary, approach to interpretation risks violating the principles, goals and values underlying a particular provision or a set of provisions120 – for example, the rule of law and, more specifically, the principle of legality as regards transnational crimes.121 In the context of international criminal law, for instance, an evolutionary interpretation is deemed apposite for the Rome Statute’s human rights- and transitional justice-oriented clauses122 as well as its institutional provisions regulating the functioning of the International Criminal Court.123 By contrast, a different interpretive approach is deemed necessary for stipulations ‘performing the function of legislation’, in particular the definitions of the core crimes, ‘which incorporate a criminal code within the text of the treaty itself’.124 For these provisions, the living

Tribunal for the Law of the Sea, and the Commission on the Limits of the Continental Shelf. 116 LOSC, Articles 238 et seq. 117 A Proelss and T Hofmann, ‘Law of the Sea and Transnational Organised Crime’ in P Hauck and S Peterke (eds), International Law and Transnational Organised Crime (OUP 2016) 423, see also 446: ‘The international law of the sea and transnational organised crime are closely related to each other owing to the great importance of shipping and navigation as means of international transport.’ 118 On piracy being a transnational rather than an international crime, see N Boister, Transnational Criminal Law (2nd edn, OUP 2018) 47. 119 Jain (n 105) 79–80. 120 Ibid, 48. 121 Boister (n 118) 39–40. 122 Jain (n 105) 51. 123 See VCLT, Article 5. 124 Sadat and Jolly (n 103) 759; see also L Grover, ‘A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the

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treaty approach is considered inappropriate,125 and it has been suggested that statutory construction be drawn upon in domestic criminal law and that a ‘moderate textual methodology’ be applied.126 Despite the panoply of methods proposed for statutory interpretation, the interpretation of criminal statutes specifically is subject to a widely recognized constraint: nullum crimen sine lege.127 As we will see shortly, the constraints flowing from the principle of legality – and the rule of law more generally – must also be observed when interpreting the ‘criminal law’ provisions of LOSC, notably its rules on piracy. To conclude, the hybridity (or intradisciplinarity) of LOSC in terms of subject matter and the varied ‘texture’ of its provisions do not allow for it to be subjected in toto to an evolutionary interpretation. Most notably, its provisions dealing with maritime crime are not suitable for such expansive interpretation – even though this would greatly facilitate the accommodation of unmanned systems (and the shift from proximate to remote involvement in the commission of maritime crimes that their use entails) under the current legal framework. Rather, their ‘texture’ and intradisciplinary criminal law trait curtail the interpretive space quite considerably.

7.

A ‘RULE OF LAW’-BASED INTERPRETATION FOR MARITIME CRIME PROVISIONS

In light of the two developments described at the beginning of this chapter – transnational crimes having ascended to a high rank in maritime security and the ‘robotics revolution’ having reached the sea – there is a pressing need to elaborate a specific interpretive methodology for the maritime crime provisions of LOSC and for the emerging field of international maritime

International Criminal Court’ (2010) 21 European Journal of International Law 543, 545: ‘the Rome Statute articulates an interpretive imperative specific to the crimes’. 125 L Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court (CUP 2014) 385. 126 Jain (n 105) 51. 127 Ibid, 83. For an application of the principle of legality at the international level, see Rome Statute, Article 22(2).

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security law128 more generally.129 But to do so is beyond the scope of the present chapter, which pursues a more modest goal. Accordingly, and using the example of the definition of piracy, it will be demonstrated that even the application of the classic (quite elastic) ‘crucible approach’ enshrined in Article 31 VCLT – where the text, object and purpose as well as the context are ‘thrown into the crucible and their interaction would then give the legally relevant interpretation’130 – yields more legitimate outcomes than reliance on a primarily evolutionary, purposive interpretation. This holds especially true if due weight is given to systemic integration provided for in Article 31(3)(c) VCLT. This mode of interpretation has the potential to leverage the underlying principles, goals and values of those bodies of international law that are woven into the law of the sea – that is, to account for the intradisciplinary nature of large parts of LOSC. For the provisions on piracy specifically, systemic integration allows for their partly (transnational) criminal law nature to be taken into account. The starting point of every ‘interpretive round-trip’ is the elucidation of the ordinary meaning of the words used in a given provision. According to Article 101(a) LOSC, piracy consists of any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed … on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft.131

128 A settled definition does not exist, but see the definition of J Kraska and R Pedrozo, International Maritime Security Law (Martinus Nijhoff 2013) 2, which reveals the intradisciplinary nature of this body of law: ‘Maritime security law is a hybrid sub-discipline of international law, combining principally elements of the international law of the sea, international criminal law, international human rights law, and the law of naval warfare, which is a subset of international humanitarian law. Maritime security law also involves aspects of national and international administrative regulation of immigration, trade and customs.’ 129 As has been done in the relatively young field of international criminal law; see, for example, Sadat and Jolly (n 103) 763–770 proposing ‘seven canons’ for the interpretation of the ‘criminal code’ within the Rome Statute; Grover (n 125) passim; Jain (n 105) passim. 130 ILC, ‘Documents of the Second Part of the Seventeenth Session and of the Eighteenth Session Including the Reports of the Commission to the General Assembly’ (1966) UN Doc A/CN.4/SER.A/1966/Add.1, 95, [4]. 131 Absent contemporary relevance, LOSC, Article 101(a)(ii) is not considered any further here; due to space constraints, LOSC, Article 101(b) and (c) are not analysed either.

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This wording triggers a series of interpretational questions as regards the use of unmanned (rather than manned) craft to engage in violent acts against another ship. As regards the conduct element of the offence, the turn to unmanned systems does not seem to pose many problems. As per Article 101(a) LOSC, piracy can be committed through, alternatively,132 an act of violence, detention or depredation, which is usually defined as plunder, pillage or robbery.133 Contemporary piracy is characterized primarily by detention and depredation, while acts of violence are rather committed in order to achieve the ultimate goal of taking control of the ship and crew or to commit property offences.134 By contrast, unmanned systems will most likely be used for attacks, the very purpose of which is the commission of an act of violence, such as firing at a ship or blowing it up. Since a single act of violence135 causing relatively little harm qualifies as an act of violence in the sense of Article 101(a) LOSC, a sole shot fired upon a ship may already fulfil the conduct element.136 Even at the current development stage of unmanned technology, this seems a potentially realistic and likely scenario.137 Once the swarming capabilities of unmanned systems are further developed,138 it even seems possible that a plurality of (armed) unmanned craft could bring a ship under the perpetrator’s control. It is undisputable that the gaining of direct, physical control over a ship and persons on board falls within the ambit of Article 101(a) LOSC, but whether indirect control also qualifies as an act of detention is less straightforward. Overall, the conduct element can be fulfilled by using either manned or unmanned craft. By contrast, the shift from proximate to remote involvement in the commission of maritime crimes that the reliance on unmanned systems entails cannot be as readily accommodated by the Article 101(a) LOSC description of the

132 R Churchill, ‘The Piracy Provisions of the UN Convention on the Law of the Sea – Fit for Purpose?’ in P Koutrakos and A Skordas (eds), The Law and Practice of Piracy at Sea: European and International Perspectives (Hart Publishing 2014) 13. 133 D Guilfoyle, ‘Article 101: Definition of Piracy’ in A Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (Hart 2017) 740. 134 For a brief overview on various forms of contemporary piracy see Petrig (n 101) 844. 135 Guilfoyle (n 133) 740. 136 Churchill (n 132) 15: ‘domestic courts have accepted a relatively low threshold of violence as sufficient for piracy, such as the firing of shots at the victim vessel without causing injury to those on board or damage to the vessel’; Salomon (n 44) 132. 137 See above Section 3 on attacks carried out by remotely controlled boats against other ships. 138 US Department of Defense, ‘Unmanned Systems Integrated Roadmap 2017–2042’ (n 41) 34, identifies swarming capabilities as a key technology in the realm of unmanned systems.

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offender (‘committed … by the crew or the passengers’) and the means to commit the offence (‘a private ship’). Despite relying heavily on the notions of ‘ship’ and ‘vessel’, LOSC does not define these terms – and for good reason. The term ‘ship’ is not amenable to a single definition, but rather depends on the subject matter and context of the rules in which it appears. Since LOSC aspires to regulate ‘all issues relating to the law of the sea’,139 a single definition is neither possible nor helpful.140 As a consequence, the term must be defined for the provisions on piracy specifically, making a distinction between the victim and the offending craft. As regards the offending craft, the Harvard Draft Convention is of interest. The authors – recognizing the convenience of having ‘a single term to indicate all the various means of transportation by sea or air which may be involved in piratical enterprises’141 – defined the notion in Article 5(1) comprehensively: ‘The term “ship” means any water craft or air craft of whatever size.’142 Their term of choice was ‘ship’ (despite the fact that it denotes both water and airborne craft) for it ‘is the natural word to select for the purpose, since the pirates of history and fiction commonly used ships and the pirate ship and the pirate are associated in one’s mind much as are the Cossack and his horse’.143 The International Law Commission (ILC) abandoned this approach: their definition of piracy refers to ‘ship’ and ‘aircraft’ separately,144 as do the definitions of the 1958 Convention on the High Seas and LOSC.145 Hence, the term ‘ship’ as it appears in the provisions on piracy no longer has a special meaning (one

LOSC, preamble, [1]. JE Noyes, ‘Interpreting the 1982 Law of the Sea Convention and Defining Its Terms’ in GK Walker (ed), Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention (Martinus Nijhoff 2012) 55, 56 and 61; H Meyers, The Nationality of Ships (Martinus Nijhoff 1967) 15–16 and 22–23; L Lucchini, ‘Le navire et les navires’ in Société Française pour le Droit International (ed), Le Navire en droit international (Pedone 1992) 18–20. On definitional issues of unmanned systems, see also Chapter 6 in this volume. 141 Harvard Draft Convention and Commentary (n 43) 768. 142 Ibid, 767. 143 Ibid, 768. 144 ILC, ‘Articles Concerning the Law of the Sea with Commentaries’ in ‘Report of the International Law Commission on the Work of its Eighth Session’ (1956) UN Doc A/3159, Article 39; the materials do not elucidate the Commission’s choice. 145 Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 82, Article 15. 139 140

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that includes aircraft)146 but is still understood as a generic concept147 – the content of which the drafters expected to evolve over time.148 According to the general intertemporal rule, terms must be given the meaning they had at the time the treaty was adopted, yet an exception exists for generic terms: the parties must be presumed to have intended that these terms be given their meaning in light of the circumstances prevailing at the time of interpretation.149 This makes the generic term ‘ship’ suitable to adapt to change, and it was in fact apt to ‘accommodate technological developments, from sail to steam to containerisation’ – but it cannot be ignored that it ‘has evolved over centuries assuming the presence of an onboard crew’.150 To decide whether an unmanned ocean-going device is a ‘ship’ in the sense of Article 101(a) LOSC, the context in which the term appears must be considered. In the words of the International Court of Justice, a ‘word obtains its meaning from the context in which it is used. If the context requires a meaning which connotes a wide choice, it must be construed accordingly, just as it must be given a restrictive meaning if the context in which it is used so requires.’151 As regards craft used to commit piratical acts, the decisive criterion appears to be whether they are capable of interfering with navigation on the high seas. This does not seem to require more than the capacity to navigate the high seas and cause harm of the type described in Article 101(a) LOSC152 – both

146 In the sense of VLCT, Article 31(4); as per R Gardiner, Treaty Interpretation (2nd edn, OUP 2015) 334, a notion has a special meaning if the drafters provided it with a meaning ‘that differs from the more common meaning’, that is, ‘from the expected one’. 147 The ILC relied heavily on the Harvard Draft Convention, whose drafters clearly understood ‘ship’ to be a generic term: see ILC, ‘Summary Records of the Seventh Session’ (2 May–8 July 1955) UN Doc A/CN.4/SER.A/1955, 55, [4], where a delegate proposed to explicitly include attacks by aircraft against vessels and where the Special Rapporteur replied that he omitted this ‘in the interest of simplification, though, as the Commission would remember, he had originally followed the Harvard draft in order to take modern technological developments into account’. 148 Gardiner (n 146) 193. 149 O Dörr, ‘Article 31: General Rules of Interpretation’ in O Dörr and K Schmalenbach (eds), Vienna Convention on the Law of Treaties: A Commentary (2nd edn, Springer 2018) 573. 150 L Carey, ‘All Hands Off Deck? The Legal Barrier to Autonomous Ships’ (2017) NUS Law Working Paper 2017/11, available at https://​papers​.ssrn​.com/​sol3/​papers​ .cfm​?abstract​_id​=​3025882, 1–2. 151 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (Advisory Opinion) [1960] ICJ Rep 150, 158. 152 R Geiss and A Petrig, Piracy and Armed Robbery at Sea (OUP 2011) 62–63; Salomon (n 44) 134.

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of which unmanned maritime systems are already capable of doing today, let alone in the future. The definition of piracy further requires that the piratical act be committed ‘by the crew or the passengers’ of a private ship. LOSC was adopted in 1982 – hence at a time when the drafters could have conceived that functions incumbent on the crew could potentially be carried out by a person not physically present on board, notably a shore-based controller. Yet Wood is correct when writing that ‘[a]ge is relative’ and the statement that LOSC dates from 1982 ‘is perhaps an oversimplification’ because ‘many of its provisions are much older’.153 This certainly holds true for the definition of piracy, which was neither substantially changed nor discussed since its inclusion in the 1956 ILC Draft, which, in turn, relies heavily on the 1923 Harvard Draft Convention.154 Hence, the definition of piracy is in fact fairly old and the notion of ‘crew’ was not revamped at the time of the adoption of LOSC in 1982; hence, it does not seem to encompass the idea of persons acting from anywhere other than on board the offending craft. Such interpretation receives support from the fact that the term ‘crew’ is mentioned in the same breath as the word ‘passenger’, which is defined as ‘[a] traveller on a public or private conveyance other than the driver, pilot, or crew’.155 In order to travel, one must necessarily be on board a craft. A counter-argument for such a narrow construction is that Article 101(a) LOSC explicitly refers to ‘persons … on board’ in the context of the victim ship. This difference between the description of the offending and victim craft allows for the notion of ‘crew’ to be understood broadly – provided we agree that it is a generic term that can be interpreted in light of present-day conditions. Further, the International Tribunal of the Law of the Sea – although in a different context – opined that a ship is a unit, meaning that ‘the ship, every thing on it, and every person involved or interested in its operations are treated as an entity’.156 This implies that a person can belong to a vessel without being on board that ship, provided he is ‘involved or interested in its operation’. In other words, the idea that one could be remotely involved in the operation of a ship and still be perceived as part of it, is neither foreign nor new to the law of the sea. The wording and context of the definition of piracy do not seem to preclude per se that a person launching or remotely controlling an unmanned system can be considered ‘crew’ and the system a ‘ship’. A purpose- and object-bound interpretation, however, suggests a narrower reading. The identification of Wood (n 79) lxxix and lxxx. Geiss and Petrig (n 152) 37–41. 155 English Oxford Living Dictionaries, ‘passenger’, available at https://​ en. oxforddictionaries.com/. 156 The M/V ‘Saiga’ (Judgment, 1 July 1999) ITLOS Reports 1999, [106]. 153 154

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a single object and purpose for LOSC, characterized by its thematic comprehensiveness, is a challenge. During the negotiations, multiple interests were advanced and expressed in the treaty text; the package deal ultimately concluded was the result of a delicate balancing of interests, which thus precluded one substantive (key) issue from being singled out and understood as representing the entire object and purpose of LOSC.157 Rather than being subject specific, the object and purpose of LOSC is more expansive: it ‘promotes the rule of law at sea by allocating authority to govern and by imposing qualifications on that authority in different situations’.158 In other words, it aims at ‘providing a stable jurisdictional framework and the consolidation of the rule of law at sea’.159 Interestingly enough, Oxman opined that [t]he law of piracy is perhaps the best known example of the attempt to extend the rule of law to the sea. What is too rarely understood about the law of piracy is that most of its rules are designed to refine and circumscribe the universal enforcement and adjudicative jurisdiction it confers. The objective is to create just enough universal jurisdiction to respond to the practical problem posed by murder and mayhem on the high seas, but not so much as to threaten random violence or unwarranted interference with freedom of navigation and the liberty interests associated with that freedom.160

Indeed, the definition of piracy in Article 101 LOSC has various limitative (and thus protective) functions: it aims to clearly delimit the conduct for which a person can be prosecuted and punished for the offence of piracy and to precisely define the scope of enforcement and adjudicative jurisdiction. If the definition of piracy is construed too broadly, it cannot fulfil its limitative function and thus fails to live up to the object and purpose, which is to ensure the application of the rule of law at sea – concretely ‘to protect liberty interests by defining and deterring excessive zeal’ in the suppression of piracy.161 We have seen that an object- and purpose-based interpretation of LOSC is one gateway for the rule of law at sea; systemic integration in the sense of Article 31(3)(c) VCLT is another.162 As stressed earlier, this mode of interpre I Papanicolopulu, International Law and the Protection of People at Sea (OUP 2018) 102. 158 BH Oxman, ‘Human Rights and the United Nations Convention on the Law of the Sea’ (1998) 36 Columbia Journal of International Law 399, 402. 159 Papanicolopulu (n 157) 102. 160 Oxman (n 158) 402. 161 Ibid, 404. 162 There are various readings of VCLT, Article 31(3)(c); see Dörr (n 149) 610 et seq. The requirement that the external rules be ‘applicable in the relations between the parties’ is understood broadly in the context at hand since LOSC Article 293 – the treaty’s own systemic integration rule – does not contain this requirement: A Petrig and 157

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tation leverages the underlying values of those bodies of law that are woven into the law of the sea and provide the intradisciplinary fabric from which LOSC is crafted. As regards the provisions on piracy, which feature a markedly criminal law trait, the rule of law – and especially the principle of legality flowing from it – is a core principle that ought to guide their interpretation. One of the core aspects of the rule of law is that the ‘power of the State may not be exercised arbitrarily’, but rather only through laws that are ‘prospective, accessible and clear’.163 As regards the definition of criminal offences specifically, the principle of legality entails, inter alia, the principle of certainty and prohibits the creation of offences by analogy.164 Domestic courts applying Article 101(a) LOSC as the basis for criminal prosecution seem to be bound by the ‘full-fledged’ principle of legality under domestic law, rather than its ‘core’ content, which undisputedly applies at the international level.165 This implies that offences must be clearly defined, thereby ‘placing the individual in a position where they know or are reasonably able to discover which acts or omissions will make them criminally liable’.166 If the definition of piracy is stretched to a point where it can accommodate the commission of piratical acts by unmanned rather than manned craft, this may violate the principle of ‘fair warning’, which ‘demands that the offender should be warned in advance of the transgressive potential of their conduct’.167 In sum, whether the commission of an act of violence by an unmanned system against another ship can be subsumed under the wording of Article 101(a) LOSC – that is, ‘committed … by the crew or the passengers of a private ship or aircraft’ – ultimately depends on the interpretive approach we pursue. Put differently, it is decided by the weight given to the various elements thrown into the crucible and what role is accorded to systemic integration, which is the gateway for the principle of legality.

M Bo, ‘The International Tribunal for the Law of the Sea and Human Rights’ in M Scheinin (ed), Human Rights Norms in ‘Other’ International Courts (CUP 2019) 365 and 397. 163 S Chesterman, ‘Rule of Law’, Max Planck Encyclopedia of Public International Law (last updated July 2007) available at http://​opil​.ouplaw​.com/​home/​EPIL [2]. 164 C Kress, ‘Nulla Poena Nullum Crimen Sine Lege’, Max Planck Encyclopedia of Public International Law (last updated July 2007) available at http://​opil​.ouplaw​.com/​ home/​EPIL, [1]. 165 Ibid, [19]. 166 Boister (n 118) 39. 167 Ibid.

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8. CONCLUSION The ‘robotics revolution’ at sea entails a shift from proximate to remote human involvement in the commission of maritime crimes. Indeed, this represents a paradigm shift given that the provisions of LOSC governing the suppression of criminality at sea rest on the assumption of proximity – to be precise, that the perpetrator is on board the offending craft while engaging in the prohibited conduct. Whether this new paradigm requires new conventions – the question put to the authors by the editors of this volume168 – cannot be conclusively answered at this stage. The extent to which LOSC can accommodate the use of unmanned systems for the commission of maritime crimes ultimately depends on the interpretive approach pursued. While an evolutionary method would greatly facilitate the task, it is deemed inapposite for the interpretation of the Convention’s provisions containing both law of the sea and (transnational) criminal law elements – such as the provisions on piracy. This intradisciplinary nature requires the underlying values of (transnational) criminal law also to be taken into account, most notably the rule of law and the principle of legality that flows from it. Neither principle is absolute, rather they are gradual concepts aimed at maximizing certainty and minimizing arbitrariness.169 Yet, what is certain is that ‘[t]he needs of a changing world cannot be understood, in and of themselves, as a justification for violating the principle of legality’.170 Rather, the rule of law and the principle of legality provide a ‘railing’ for the interpreter of the provisions of LOSC that govern maritime crime. The stability of this ‘railing’ – that is, how far we can move away from the provisions’ wording – must be ascertained by further research carving out a specific interpretive methodology for establishing the meaning of ‘criminal law’ provisions contained in LOSC and international maritime security law more generally. This will pave the way for the critical task of deciding whether maritime criminal law provisions are frozen in time or whether they are capable of accommodating the ‘robotics revolution’ at sea.

See above, the introduction to this chapter and accompanying n 3. Grover (n 125) 143. 170 Ibid, 166. 168 169

6

Unmanned maritime systems will shape the future of naval operations: is international law ready? Kara Chadwick1

1. INTRODUCTION In 2013 robotics and autonomous systems were named as one of the ‘Eight Great Technologies’ by the UK government, attracting a £35 million investment from the Department for Business, Innovation and Skills.2 Other countries are also investing in this technology for use in numerous roles and environments. In the maritime environment, unmanned maritime systems (UMS) are rapidly moving from science fiction to fact, heralding the removal of humans from onboard command and crewing functions, across a range of shipping types and maritime technologies. With utility across a range of maritime operations, UMS appeal to the military because of their endurance, capacity to expand areas of operation and ability to complement the activities of manned vessels at a lower cost per hull.3 The UK’s Royal Navy is one of a number of navies investing in UMS and in October 2016 hosted the first ‘Unmanned Warrior’ exercise, in which ‘more than 50 unmanned aerial,

All of the views expressed in this chapter are the author’s and do not constitute the views of the Royal Navy or the Ministry of Defence. 2 Department for Business, Innovation & Skills and the Rt Hon David Willetts, ‘£600 million investment in the eight great technologies’ (24 January 2013) available at https://​www​.gov​.uk/​government/​news/​600​-million​-investment​-in​-the​-eight​-great​ -technologies. See also HM Treasury and the Rt Hon George Osborne, ‘Speech by the Chancellor of the Exchequer, Rt Hon George Osborne MP, to the Royal Society’ (9 November 2012) available at https://​www​.gov​.uk/​government/​speeches/​speech​-by​-the​ -chancellor​-of​-the​-exchequer​-rt​-hon​-george​-osborne​-mp​-to​-the​-royal​-society. 3 A Norris, ‘Legal Issues Relating to Unmanned Maritime Systems Monograph’ (US Naval War College 2013) 6. 1

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undersea and surface vehicles built by more than 40 companies [were] put to the test near the Outer Hebrides’.4 Navies are perhaps the most overt expression and display of any nation’s approach to maritime security and are often the first line of defence against new security threats. Whilst war fighting is a key role for navies, law enforcement is also a central function of navies in countering maritime security threats. Navies need to maintain a balance of capabilities, based on available technologies, to enable them to contribute to the entire spectrum of operations. UMS bring new opportunities for navies but could reframe how, when and by whom maritime security is undertaken. Is the current legal framework sufficient to govern the use of UMS by navies, or is a new one needed? Specifically, can international law and regulations, in particular the United Nations Convention on the Law of the Sea (LOSC)5 and the International Regulations for Preventing Collisions at Sea 1972 (COLREGs)6 adequately regulate this new technology?7 Currently none of the relevant international agreements either recognises or makes specific provision for UMS, which has led some commentators to conclude that the operation of UMS is legally untenable.8 Others are more persuaded that ‘general principles [will] offer sufficient governance during the inevitable hiatus that ensues whilst the impacts of technological development are sorted through’.9 In response to demands from the maritime community, the International Maritime Organization (IMO) ‘has commenced work to look into how safe, secure and environmentally sound Maritime Autonomous Surface Ship (MASS) Operations may be addressed in IMO instruments’.10 However, in the absence of specific black letter law for UMS users to rely upon, debate

4 J Dean, ‘No sailors required as navy goes to sea with fleet of drones’ (The Times, 5 July 2016) http://​www​.thetimes​.co​.uk/​article/​no​-sailors​-required​-as​-navy​-goes​-to​ -seawith​-fleet​-of​-drones​-v278tl9p9; see also Chapter 5 in this volume. 5 United Nations Convention on the Law of the Sea 1982, 1833 UNTS 397. 6 International Regulations for Preventing Collisions at Sea, 1972 (as amended by Resolutions A464(XII), A626(15), A678(16), A736(18) and A.910(22)) 1050 UNTS 16. 7 See also Chapter 5 of this volume. 8 European Defence Agency, ‘Best Practice Guide for Unmanned Maritime Systems Handling, Operations, Design and Regulations (Working Paper)’ (2014), 70. 9 R McLaughlin, ‘Unmanned Naval Vehicles at Sea: USVs, UUVs, and the Adequacy of the Law’ (2011) 21(2) Journal of Law, Information & Science 1, 2. 10 IMO, ‘IMO Takes First Steps to Address Autonomous Ships’ (2018), available at http://​www​.imo​.org/​en/​MediaCentre/​PressBriefings/​Pages/​08​-MSC​-99​-MASS​ -scoping​.aspx; during the 100th session of the Maritime Safety Committee the IMO announced its intention to complete the Scoping Study in 2020, available at http://​www​ .imo​.org/​en/​MediaCentre/​MeetingSummaries/​MSC/​Pages/​MSC​-100th​-session​.aspx. See also Chapter 5 in this volume.

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and guidance from various bodies and ‘experts’ has filled the gaps, and much of it is contradictory. This chapter will examine developments in unmanned maritime technology before going on to consider three areas of importance for the use of UMS by navies: legal classification, assertion of jurisdiction by coastal States over military UMS, and the legal and practical considerations that might arise when using UMS to conduct law enforcement tasks at sea in support of maritime security. Throughout the chapter, it becomes clear that the interpretation of LOSC and other international legislation is key and that there is a danger that without great clarity in relation to how LOSC, COLREGs, etc. should be applied to UMS, navies run the risk of inadvertently operating in a grey zone when exploiting these new technologies.11

2.

WHAT IS MARITIME AUTONOMY?

There is debate and disagreement about scales of autonomy and the appropriate terminology to describe unmanned systems. Along with UMS, the most common descriptors are Autonomous Underwater Vehicle (AUV), Autonomous Surface Vehicle (ASV), Unmanned Underwater Vehicle (UUV), Unmanned Surface Vessel (USV), Maritime Autonomous System (MAS), Remotely Operated Vehicle (ROV) and Maritime Unmanned System (MUS).12 In relation to the term ‘autonomy’, ‘there are varying degrees of “independence” encompassed within it’.13 Terms like ‘automated’, ‘semi-autonomous’, ‘man-in-the-loop’, ‘man-on-the-loop’ and ‘man-off-the-loop’ are used to convey those different levels of independence and the extent of human versus machine decision making.14 The European Defence Agency (EDA) advocates five levels of control spanning human operated, human directed, human delegated, human monitored and autonomous.15 This is in contrast to the United States (US) Navy’s framework, which has just three levels,16 and 11 The ‘grey zone’ seeks to classify forms of State activity conducted in the area between the clearly legal and clearly illegal, which also sit somewhere between peace and war. See J Raine, ‘War or Peace? Understanding the Grey Zone’ (IISS, 2 April 2019) available at https://​www​.iiss​.org/​blogs/​analysis/​2019/​04/​understanding​-the​-grey​ -zone. 12 NATO terminology. 13 Norris (n 3) 18. 14 K Anderson, D Reisner and M Waxman, ‘Adapting the Law of Armed Conflict to Autonomous Weapons Systems’ (2014) 90 International Law Studies 386, 389. 15 European Defence Agency (n 8) 6. See also Chapter 5 in this volume, which considers three levels of autonomy. 16 D Vallejo, ‘Electric Currents: Programming Legal Status into Autonomous Unmanned Maritime Vehicles’ (2015) 47(1) Case Western Reserve Journal of International Law 405–423, 409.

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the IMO, whose MASS regulatory scoping work will consider four degrees of autonomy.17 UMS may display varying levels of control during different operations or within one mission. Currently there are very few (if any) truly autonomous maritime systems, however industry already uses the term ‘autonomous’ to describe their unmanned systems, whatever a system’s actual level of autonomy. Whilst recognising the ubiquity of the term ‘autonomous’, for the purpose of this chapter, the term UMS will be used; it encompasses surface and subsurface systems, as well as varying levels of human engagement, and is intended to reflect an absence of humans on board.

3.

DEVELOPMENT OF TECHNOLOGY

Various remote-controlled technologies employed before and during World War II are cited as the first use of unmanned maritime technology18 but it was not until Operation Iraqi Freedom in 2003 that technology described as an ‘autonomous underwater vehicle’ was used for mine warfare.19 Since then there has been significant development in the use of unmanned technology in the wider maritime environment: above, on and below the surface; in various shapes and sizes; and in all industry sectors. Wherever there is ‘dull, dangerous and dirty’ work to be done, it is likely that technology companies are seeking to develop an unmanned system to undertake that work more cheaply, more safely and in some cases to a higher standard, than a human. As UMS technology evolves, the physical and practical role of human ‘sailors’ who remain at sea will adapt. Navigating and engineering officers are likely to transition from an active role to a more passive monitoring role.20 The result is that there may soon be ships able to operate at several alternative degrees of automation. Ships transiting a strait could include those with a fully

17 ‘IMO Takes First Steps to Address Autonomous Ships’ (2018) available at http://​ www​.imo​.org/​en/​MediaCentre/​PressBriefings/​Pages/​08​-MSC​-99​-MASS ​-scoping​ .aspx. 18 S Campbell, W Naeem and GW Irwin, ‘A Review on Improving the Autonomy of Unmanned Surface Vehicles through Intelligent Collision Avoidance Manoeuvres’ (2012) 36(2) Annual Reviews in Control 268. B Berkowitz, ‘Sea Power in the Robotic Age’ (2014) XXX(2) Issues in Science and Technology, available at http://​issues​.org/​ 30​-2/​bruce​-2/​. 19 United Nations Institute for Disarmament Research (UNIDIR), ‘The Weaponisation of Increasingly Autonomous Technologies in the Maritime Environment: Testing the Waters’ (2015) 3; J Kraska, ‘The Law of Unmanned Naval Systems in War and Peace’ (2010) 5(3) The Journal of Ocean Technology 46. 20 CH Allen, ‘The Seabots are Coming Here: Should They Be Treated as “Vessels”?’ (2012) 65 The Journal of Navigation 749, 752.

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automated navigation system overseen by a human watch-keeper, whilst elsewhere there may be fully autonomous vessels, able to alert an operator ashore in the event of problems on board.21 To the casual observer, though, there may be nothing to distinguish between the manned and unmanned vessels. The roles that UMS can undertake at sea are seemingly boundless, and whilst their size is generally small at present, platform size is growing quickly in both civilian and military sectors. This has implications for the weapons that can be carried by naval UMS, as well as the persistence and range of missions that can be undertaken. Civilian industries that have the budget to invest in new technology have been quick to exploit underwater UMS but the race is on to employ unmanned technology on every size and type of vessel, above and below the water. In 2016 Rolls Royce unveiled its vision of the land-based control centre in which a small ‘crew’ of 7–14 people will remotely monitor and control the unmanned ships of the future across the world.22 The potential military roles for UMS are extensive and unmanned technology offers a number of advantages;23 it provides a tactical advantage over the enemy or subject of interest and enables military technology to ‘act more quickly than people can assess, calculate and respond, and sometimes to act more precisely and accurately in responding to a military threat’.24 UMS will also be able to provide 24/7 presence, reduce risk to human life, and perhaps mitigate future manpower shortfalls.25 Where missions take place in a hostile environment, control of which is contested by an adversary, UMS may offer further advantages: (1) they remove the risk of human operators being captured, held as prisoners, interrogated and exploited for propaganda; and (2) may avoid questions of attributability arising in the short term during covert operations. Much like the way in which human operated ships can work in concert with other ships, aircraft and submarines, naval UMS will also be able to work together. Without the need to accommodate a human, vessels and vehicles could be smaller and cheaper, allowing a greater number to be utilised for the same price. UMS also create opportunities for ‘swarm tactics’, in which a greater number of coordinated units could cover larger areas with greater space capacity. Swarms have utility in the protection of a high value unit such

D Patraiko, ‘Driverless Ships – Mariner Response’ [2013] Seaways 13. Rolls Royce, ‘Rolls-Royce reveals future shore control centre’ (Rolls Royce, 22 March 2016) available at http://​www​.rolls​-royce​.com/​media/​press​-releases/​yr​-2016/​pr​ -2016​-03​-22​-rr​-reveals​-future​-shore​-control​-centre​.aspx. 23 Berkowitz (n 18). 24 Anderson et al. (n 14) 390. 25 European Defence Agency (n 8) 12. 21 22

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as an aircraft carrier, intercepting potential threats before they get too close.26 The data produced by multiple units can thereafter be combined to create a comprehensive intelligence picture covering large areas. The challenge may be integrating multiple unmanned systems safely with manned systems. Difficulties in the use of multiple UMS may also include communication limitations (i.e. available bandwidth), collision avoidance, underway replenishment and defect rectification.27 Unmanned technology currently used by the UK’s Royal Navy is focused on mine-countermeasures (MCM) operations and they have announced a new MCM and Hydrography Capability (MHC) programme and a joint French/UK Maritime MCM programme, which will seek to exploit opportunities offered by increasing autonomy in MCM technology.28 Whilst other States’ navies, with different priorities and budgets, are at various stages in their development of UMS, the US Navy appears to be at the forefront of naval UMS development due in no small part to the US Defense budget for unmanned systems increasing from $1.7 billion in 2006 to over $4.2 billion in 2010.29 The US Navy is focused on the supporting role that UMS will have for war fighters and systems in the air, surface and subsurface.30 Projects publicly announced range from a jellyfish robot named ‘Cyro’ that is able to conduct maritime surveillance without human intervention;31 a ‘biomimetic’ surveillance and reconnaissance UUV called ‘Ghostswimmer’, ‘propelled by oscillating its tail, in the same way a fish does’;32 and the much heralded and significantly larger ‘Sea Hunter’, ‘able to traverse thousands of kilometres over the open seas for months at a time, without a single crew member aboard. Potential missions include submarine tracking and countermine activities.’33 26 SJ Freedberg, ‘Naval drones “swarm,” but who pulls the trigger?’ (Breaking Defense, 5 October 2015) available at http://​breakingdefense​.com/​2014/​10/​who​-pulls​ -trigger​-for​-new​-navy​-drone​-swarm​-boats/​. 27 Z Liu, Y Zhang, X Yu and C Yuan ‘Unmanned Surface Vehicles: An Overview of Developments and Challenges’ (2016) 41 Annual Reviews in Control 84–85. 28 Ministry of Defence, ‘Facing the Underwater Threat’ (Desider Magazine, 2015) 24 and Jane’s Navy International, ‘Stand-off and deliver: French/UK MMCM programme charts an unmanned course into the minefield’ (2015) 1–2 available at http://​ www​.janes360​.com/​images/​assets/​969/​53969/​UK​_MMCM​_programme​_charts​_an​ _unmanned​_course​_into​_the​_minefield​.pdf. 29 Kraska (n 19) 46. 30 Norris (n 3) 18. See also reference to the Unmanned Surface Vehicle Plan in Vallejo (n 16) 407. 31 Vallejo (n 16) 406. 32 H Williams, ‘USN Trials of Biomimetic UUV’ [2015] Jane’s International Defence Review 22. 33 Defense Advanced Research Project Agency, ‘Deputy Secretary of Defense, Senior U.S. Navy Leadership Join DARPA Director to Christen ACTUV Prototype

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UMS development continues apace and navies are keen to be at the forefront of this advance in order to exploit the tactical and strategic benefits offered. In the rush to develop these technologies, there is concern that States have lost sight of the need for legal compliance34 but legal compliance will depend to a large extent on how UMS are classified.

4.

CLASSIFYING UMS AS SHIPS/VESSELS

4.1

International Conventions

The issue that underpins all legal debate in relation to UMS, whether it be in the military or civilian context, is whether they are ships or vessels, or some completely new category of seagoing craft. Classification will determine the legal regime(s) that apply to UMS and, importantly, their rights and obligations within the various jurisdictions that comprise the world’s oceans. In the International Court of Justice (ICJ) Passage Through the Great Belt case35 Finland went to significant lengths to advance the argument that towed mobile offshore drilling units (MODUs) were ships for the purposes of LOSC in order that the MODUs would be entitled to the navigational rights (straits transit passage) which this classification bestowed.36 By analogy, classification as ships would bring naval UMS important rights, as well as obligations. However, as the Passage Through the Great Belt case was settled, the ICJ did not have to decide that or any of the other issues raised, meaning that we can be less certain of what the court might have included within the definition of ‘ship’ for the purposes of LOSC. As a consequence, there are two key issues: (1) the fact that there is no internationally agreed legal definition of ship or vessel (LOSC does not define either term);37 and (2) international law has thus far been silent in relation to whether UMS can, must or should be considered ships or vessels. It is generally agreed that the terms ‘ship’ and ‘vessel’ are synonymous due to the interchangeable use of the words by the IMO and in other international trea-

Vessel’ (DARPA, 11 April 2016) available at http://​www​.darpa​.mil/​news​-events/​2016​ -04​-11. 34 H Roff, ‘Adaptability or compliance? Modular weapons and the rules of international law’ (Duck of Minerva, 27 April 2016) available at http://​duckofminerva​.com/​ 2016/​04/​adaptability​-or​-compliance​-modular​-weapons​-and​-the​-rules​-of​-international​ -law​.html. 35 Case Concerning Passage through the Great Belt (Finland v Denmark) (1992) ICJ Rep 41. 36 Ibid; Memorial of the Government of the Republic of Finland (1991), [431]–[478]. 37 Although there are many national/domestic legislative definitions.

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ties.38 Several international conventions contain their own definition of ship/ vessel, which are rarely consistent, however there is a general desire to keep the definition as broad as possible so as to encompass a suitably large percentage of the world’s seagoing craft within the rules that the conventions seek to apply. The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (the London Convention 1972)39 defines vessels as ‘waterborne or airborne craft of any type whatsoever. This expression includes air cushioned craft and floating craft, whether self-propelled or not.’40 The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 (SUA Convention 1988)41 defines a ship as ‘a vessel of any type whatsoever not permanently attached to the sea-bed, including dynamically supported craft, submersibles, or any other floating craft’.42 Finally, and with the broadest definition of all, the International Convention on Salvage 1989 states that ‘[v]essel means any ship or craft, or any structure capable of navigation’.43 All of these conventions are worded broadly, meaning that as long as UMS can navigate then they will fall comfortably within their definition of vessel. The real problem when seeking to define UMS as ships arises in relation to the COLREGs definition of a vessel as ‘[t]he word “vessel” includes every description of water craft, including non-displacement craft and seaplanes, used or capable of being used as a means of transportation on water’.44 COLREGs, due to their role in supervising safe navigation and because they apply ‘to all vessels upon the high seas and in all waters connected therewith’,45 have provided the most often quoted definition of vessel. The first section of the definition is extremely broad and would likely encompass UMS; however, ‘used or capable of being used as a means of transportation on water’ Norris (n 2) 24–25. Unless specifically referring to, or discussing, the word ‘vessel’, the word ‘ship’ will be used throughout this chapter. See also Chapter 5 in this volume, which considers the lack of definition for the words ‘ship’ and ‘vessel’. 39 Convention on the Prevention of Maritime Pollution by Dumping of Wastes and Other Matter (adopted 13 November 1972, entered into force 30 August 1975) replaced by the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (amended in 2006), 1046 UNTC 120 (The London Convention). 40 The London Convention, Article III.2; and 1996 Protocol to the London Convention 1972, Article 1(6). It also includes aircraft in the same definition. 41 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (adopted 10 March 1988 entered into force 1 March 1992) 1678 UNTS 304 (SUA Convention). 42 SUA Convention, Article 1. 43 International Convention on Salvage, Article 1(b). 44 COLREGs, Rule 3(a). 45 COLREGs, Rule 1(a). 38

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could present a challenge to UMS. Opinion is divided as to the importance of the transportation requirement and also its practical effect. Some argue that ‘there is no requirement to read into the definition of “vessel” any necessity for transporting someone or something characterisable as “separate” from the vessel’.46 After all, is it not the case that all vessels transport their own equipment, machinery and sensors? Others assert that the carrying of weapons and tools ‘is stretching the definition of “transportation” too thin’.47 An alternative view is that rather than trying to undertake linguistic gymnastics in relation to a strict definition of transportation we should instead read it as navigation ‘since both terms … intimate controlled movement’.48 However, had those who drafted COLREGs meant ‘navigation’ they would likely have used that word. A more sensible approach to this debate is to understand that COLREGs were written in 1972 when the majority of vessels with the technology to undertake navigation were involved in the transportation of goods and/or people, whereas now the types of watercraft that are able to navigate have multiplied. For example, oil platforms are no longer the static constructions that they once were and there have been huge advances in maritime exploration and survey technology. For that reason, and in order to ensure navigational safety for all sea-users and the prevention of collision, the requirement for transportation should be read as widely as possible to include a vessel’s equipment, etc. COLREGs is one of the treaties under consideration by the IMO’s MASS scoping exercise mentioned at the beginning of the chapter. 4.2

National Legislation

English and Welsh law would seem to support the proposition that UMS are ships, in accordance with the Merchant Shipping Act 1995’s definition: ‘every description of vessel used in navigation’.49 Case law in relation to the definition of a ship is extensive and addresses whether a number of unusual categories of craft can be defined as ships or vessels, though UMS have yet to be considered. Flying boats were held not to be ships in 194350 whereas

McLaughlin (n 9) 8. Vallejo (n 16) 412. 48 R Veal and others, ‘Liability for Operations in Unmanned Maritime Vehicles with Differing Levels of Autonomy’ (University of Southampton, 2016) available at https://​www​.waterborne​.eu/​media/​18564/​Liability​-for​-Operations​-in​-Unmanned​ -Maritime​-Vehicles​-with​-Differing​-Levels​-of​-Autonomy​.pdf. 49 The Merchant Shipping Act 1995, section 313(1). 50 Polpen Shipping Co Ltd v Commercial Union Assurance Co Ltd [1943] 1 All ER 162. 46 47

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unmanned barges reliant on tugs for movement were.51 English case law findings tend to be predicated on a capacity for navigation,52 linked to various iterations of the 1995 Merchant Shipping Act. Therefore, it is likely that any case brought in the English courts involving UMS would result in a finding that as long as a platform is capable of navigation, it is a ship. However, that does not necessarily assist future military UMS and their international operation. It is possible that a UMS could be a ship under the law of one flag State but not another,53 which is an extremely unsatisfactory situation for platforms intended for international passage. If UMS are unable to be defined as ships, the question then arises as to what category of craft they could be. Two different approaches have been taken: the first is to categorise them within alternative groups defined in COLREGs; the second is to suggest that a new category be created. The US Navigation Safety Advisory Council (NAVSAC) proposed that the US Coast Guard sponsor an amendment to COLREGs that would see ‘self-propelled vessels while unmanned and operating autonomously’ added to those vessels restricted in their ability to manoeuvre (RAM), under Rule 3(g).54 However, this still requires the craft to be a ‘vessel’ and is not in keeping with the purpose of the RAM provision, in which a vessel would become RAM while undertaking a specific task, such as dredging or mine-clearance, rather than being RAM in and of itself. Any suggestion that UMS could come within the definition of ‘Not Under Command’ in accordance with COLREGs Rule 3(f) faces the same difficulty in relation to being a vessel, additionally in relation to the requirement that the status is used in ‘exceptional circumstances’, rather than as a permanent category. Another proposal is that UMS should be defined as ‘military devices’ and that they should not have to comply with COLREGs as currently written, ‘[i]nstead they should be held to a different standard of navigational rules due to their advanced technology and autonomy’.55 Whilst this departure from COLREGs is not without its benefits in terms of starting again and creating a bespoke legal and navigational framework, the knock-on effect could be unworkable for militaries who would wish some, if not all, UMS to benefit from the immunities and rights that being a ship, and further, a warship brings,

The Mac [1882] 7 PD 126. Followed by The Mudlark [1911] 116 and The Harlow [1922] All ER Rep Ext 849. 52 R v Goodwin [2005] All ER (D) 286 (Dec) and Perks v Clark (Inspector of Taxes) [2001] EWCA Civ 1228. 53 Veal and others (n 48) vii–viii. 54 Allen (n 20) 751. 55 Vallejo (n 16) 407. 51

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as discussed below. Such a new category would need to be incorporated into LOSC and other relevant international agreements. 4.3

Alternative Classification

One way around the ship definition problem for some UMS may be to link the status of the UMS to a launching vessel, in much the same way that a warship’s sea-boat is entitled to fly the ensign of the ‘mother’ warship. Thus, the UMS achieve vicarious vessel status from their mother ship.56 However, whilst in the short term this ‘component theory’ may be the solution for the current and next generation of small, platform-launched UMS, it does not address the problem for larger or independent UMS. This is likely to be one reason why the US Navy has asserted that a UMS’s status ‘is not dependent on the definitional “status of its launch platform”’.57 4.4

Ship Classification Conclusion

Ultimately, it may be necessary to update international treaties,58 including COLREGs, to ensure that UMS come fully within the definition of a ship. Alternatively, international tribunals may intervene on this point although their decisions will only bind the parties in relation to the particular facts of any case.59 At the moment it is likely that there is a sufficiently strong argument to say that most UMS should be treated as ships, in line with the majority of international legal definitions, thus entitling them to the rights and obligations of ships. The link between the manning of a ship and its status rarely arises in international agreements (with the exception of LOSC Article 29, which is discussed below),60 and a large number of academics and professional bodies do not see the need to challenge the assumption that the terms ‘ship’ and ‘vessel’ include UMS.61 Alternatively a ‘case-by-case’ approach could be taken, based on broad categories; however, this will do little to address current uncertainty. 56 A Finn and S Scheding, Developments and Challenges for Autonomous Unmanned Vehicles: A Compendium (Springer 2010) 158. 57 Vallejo (n 16) 407. 58 Norris (n 3) 27. 59 LOSC, Article 296(2). 60 Advanced Autonomous Waterborne Applications Initiative, ‘Remote and Autonomous Ship – The Next Steps’ (AAWAI, 2016) available at http://​www​.rolls​ -royce​.com/​~/​media/​Files/​R/​Rolls​-Royce/​documents/​customers/​marine/​ship​-intel/​ aawa​-whitepaper​-210616​.pdf 37. 61 European Defence Agency (n 8) 70; E Van Hooydonk, ‘The Law of Unmanned Merchant Shipping – An Exploration’ (2014) 20 The Journal of International Maritime Law 406.

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CLASSIFYING NAVAL UMS AS WARSHIPS

Unlike the terms ‘ship’ and ‘vessel’, the term ‘warship’ is defined in LOSC: … ‘Warship’ means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent and manned by a crew which is under regular armed forces discipline.62

The importance of warship status is that it confers immunities and enforcement rights. States are likely to want their naval UMS to be warships, even if the UMS in question are not normally armed. In addition to whether or not they can be vessels or ships, the requirements for ‘command’ and being ‘manned by a crew’ present further challenges for UMS. 5.1

Challenge of Being ‘Under Command of an Officer’ and ‘Manned by a Crew’

A significant number of commentators interpret Article 29 of LOSC literally and believe that the requirement for a warship to be ‘under the command of an officer’ and ‘manned by a crew’ immediately disqualifies UMS from having warship status.63 However, it is possible to take a broader approach depending on the elasticity and interpretation of the words ‘command’ and ‘manned’.64 The problem is not so acute for remote-controlled UMS; it is conceivable that they would be ‘commanded’ from a shore station by a human using the UMS’ sensors in order to inform near-real-time decision making. They may also be ‘manned’ to the extent that there is a committed team who go on board or join the UMS for maintenance or more complicated seamanship activities such as bringing a vessel alongside or anchoring. Whether the command role is entirely similar from ashore or whether a crew is really manning the vessel as opposed to attending it is debatable.65 As a ship moves further along the automation spectrum to fully autonomous,66 where the last human input was a (potentially civilian) programmer who determined certain decisions by way of algorithms, the application of the terms ‘command’ and ‘manned’ become significantly more problematic. Yet, if these UMS do not qualify as warships, we

64 65 66 62 63

LOSC, Article 29. Vallejo (n 16) 413. Veal and others (n 48) 15–16. Van Hooydonk (n 61) 409–410; Veal and others (n 48) 15–16. Level 5 in the EDA Categorisation levels; European Defence Agency (n 8) 6.

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may find ourselves in the contradictory and complicated situation where two vessels (one manned and one unmanned), conducting the same war-fighting or military tasks, belong to different legal categories with different rights and obligations. In such a situation, it would seem unhelpful to take a strict definitional approach to the term ‘warship’ rather than a more functional one. One could look towards the aviation world to find an analogous situation where those who fly unmanned aerial vehicles (UAV) from ground stations are held to be in command of or manning those aircraft. The requirement that the ‘crew be exclusively military and wear a fixed distinctive emblem making them recognizable as such, even if they were separated from their aircraft’67 was a modern adaption of older rules and the law of armed conflict; there is now little debate about command and crew being analogous to remote command and crewing in relation to UAVs. This is helpful to an extent and will be part of the ongoing argument for UMS to be classed as warships; however, some dismiss this approach in light of the fact that there is no equivalent to the LOSC definition of ‘warship’, which must be complied with in relation to military aircraft.68 5.2

Component Theory

Returning again to the component theory in which a UMS is launched from a manned mother ship,69 it is likely that warship status could be attributed to the UMS courtesy of the relationship between the two platforms. One could envisage such a situation if a UMS was launched from the mother ship in order to provide force protection or for navigational safety purposes during transit passage.70 When considering the status of UMS the German Navy has focused on the likely controlling relationship between the mother warship and unmanned vessel in order to justify the legal status and immunity of a warship being applied to the UMS.71 Again though, US Navy doctrine does not subscribe to this approach,72 and platform-launched UMS will be but one type of UMS, amongst a category that will also include entirely independently operating systems.

Norris (n 3) 28–29. Veal and others (n 48) 15–16. Article 3 of the Convention on International Civil Aviation 1944 (Chicago Convention) recognises military aircraft as State aircraft but does not define military aircraft. 69 McLaughlin (n 9) 6. 70 Norris (n 3) 23. 71 German Navy Commander’s Handbook, quoted in McLaughlin (n 9) 7. 72 Norris (n 3) 23. 67 68

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Alternatives to Warship Classification

If not warships, alternative definitions could apply; however, all have drawbacks when compared to warship status. UMS could be categorised as auxiliaries,73 akin to the tankers and other support ships employed by navies around the world. Auxiliaries do not enjoy a specific definition under LOSC but fall within the wider definition of ‘government ships operated for non-commercial purposes’.74 There is no requirement for these ships to be manned by a crew or have a specific command in accordance with LOSC. Government ships operated for non-commercial purposes do enjoy the same immunity as warships75 and also have the right of hot pursuit76 and right of visit granted to warships under LOSC Article 110, which is extended to ‘other duly authorized ships … clearly marked as being on government service’.77 This classification might be acceptable for some UMS but may be insufficient for others. Government ships operated for non-commercial purposes have a much more limited role to play in war fighting, generally using force in self-defence only,78 otherwise there would be no point in the distinction between the two. UMS which are intended to use offensive force need to be warships. In relation to the ‘military devices’ classification, it has been claimed that this category, whilst not currently a term specifically catered for in international law, is a ‘new area of law’ defined in the American legal system.79 However, it would appear that the devices contained within the relevant US legislation are all offensive weapons,80 which is unlikely to be the case for all UMS as platforms. There are several references to devices in LOSC, the most relevant being in relation to innocent passage and the prohibited activity of ‘launching, landing or taking on board of any military device’.81 This launching and taking on board will be relevant to some UMS but not all. Additionally, classification as a device is unlikely, unless international law evolves quickly, to afford the

73 AH Henderson, ‘Murky Waters: The Legal Status of Unmanned Undersea Vehicles’ (2006) 55 Naval Law Review 6. 74 LOSC, Section 3, Subsection C. 75 LOSC, Article 96. 76 LOSC, Article 111(5). 77 LOSC, Article 110(5). 78 Institute of International Law, Manual on the Laws of Naval Warfare (1914) Article 12. 79 Vallejo (n 16) 414. 80 Section 845 of Title 18 of the United States Code, as quoted in Vallejo (n 16) 414. 81 LOSC, Article 19(2)(f).

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‘navigational rights and freedoms in the various maritime zones’,82 and the immunities that warships and government ships enjoy. 5.4

Warship Classification Conclusion

There is no immediate answer to whether, even if UMS are ships, they will qualify as warships in order to take advantage of the immunities and enforcement rights that follow. It may be that warships will be considered to be under command and manned by a crew up to a certain level of autonomy, beyond which they will need a new classification. There is no doubt that navies will seek to categorise their UMS as warships over and above auxiliaries, military devices or other categories where possible, in order to achieve parity of use with equivalent manned warships. In contrast, those States that are not able to develop military UMS are likely to oppose their definition as warships in order to reduce the tactical and technological edge that it will afford more advanced navies. This debate has real implications for the future of conflict and for how coastal States might exercise their jurisdiction over naval UMS.

6.

APPLICATION OF COASTAL STATE JURISDICTION – CAN UMS BE ‘INNOCENT’?

Whether UMS can be defined as ships will have importance in relation to the exercise of jurisdiction by coastal States (in particular innocent passage and transit passage) and the rights and duties that naval UMS might have within coastal States’ waters. ‘Passage’ as defined in LOSC is ‘navigation through the territorial sea for the purpose of: (a) traversing the sea without entering internal waters or calling at a roadstead or port …; or (b) proceeding to or from internal waters or a call at such roadstead or port facility’.83 Innocent passage is a right enjoyed throughout the territorial sea by ‘ships of all States’.84 If UMS are not ships, they enter legally uncharted territory when operating in other States’ waters. It is possible that ‘the coastal State may exclude [UMS] from its waters and may only license it after imposing its own arbitrary safety considerations’.85 An alternative view was set out by Finland in its Memorial to the ICJ: International Law has never limited rights of passage through territorial sea and straits to an exclusive category of beneficiaries, whether defined as ships, vessels or 84 85 82 83

Veal and others (n 48) 21–22. LOSC, Article 18. LOSC, Article 17. Veal and others (n 48) 4.

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otherwise. Rather, rights of passage have themselves been conceived in a functional sense, according the right of navigation to all craft which navigate upon the sea.86

If this is the case, then UMS should automatically qualify for innocent passage, transit passage, etc., regardless of their status as ships. Unfortunately, this argument has not been tested. Assuming that UMS are defined as ships, it is interesting to consider whether UMS might even be capable of complying with LOSC requirements in coastal State waters. If, in accordance with the view advocated by the UK and other major seafaring nations, manned warships are capable of innocent passage (a position disputed by some States), is the same true for military UMS? Innocent passage is defined in the negative in that LOSC contains a list of activities which are considered to be ‘prejudicial to the peace, good order or security of the coastal State’87 and therefore, in contravention of innocent passage. However, on the issue of manning, LOSC is silent, which suggests that the physical absence of humans would not breach innocent passage.88 A coastal State may not apply its own laws and regulations about the manning of foreign ships in its territorial waters unless doing so is giving effect to generally accepted international rules or standards.89 Therefore, it is unlikely, if a coastal State objected to UMS where the international rules did not, that it could make unmanned status non-innocent in and of itself. Some activities may cause military UMS to breach innocent passage, depending on their role or purpose, for example ‘any exercise or practice with weapons of any kind’,90 ‘any act aimed at collecting information to the prejudice of the defence or security of the coastal State’91 or ‘the carrying out of research or survey activities’.92 The launch of UMS from a mother ship may in itself be an act prejudicial to innocent passage if it is considered to be ‘the launching, landing or taking on board of any military device’ and is conducted without coastal State permission.93 Innocent passage is necessary for any vessel entering port through State coastal waters, and manned vessels, whether warships or not, have a requirement to enter port in order to refuel, re-store, change crew, provide crews with rest, etc.; the majority of the reasons for going alongside are related to having

88 89 90 91 92 93 86 87

Memorial of Finland (n 36) [406]. LOSC, Article 19(1). Advanced Autonomous Waterborne Applications Initiative (n 60) 39. LOSC, Article 21(2). LOSC, Article 19(2)(b). LOSC, Article 19(2)(c). LOSC, Article 19(2)(j). LOSC, Article 19(2)(f).

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a crew on board. Without a crew on board, UMS are likely to go alongside less frequently, thus decreasing the frequency of the need to exercise innocent passage, although the lack of engineers on board may require UMS to go alongside for maintenance. With respect to naval UMS traversing the territorial sea, there will be certain circumstances in which this will be unavoidable or even desirable, for example conducting Freedom of Navigation (FoN) operations. However, like civilian UMS, there may be fewer practical reasons why military UMS would need to enter territorial waters. The requirement for submarines and other underwater vehicles to navigate on the surface may also pose particular problems for a sub-category of UMS,94 namely underwater gliders. Their reliance upon tide, current and wave power instead of an engine means that underwater movement is required in order to generate the power for forward momentum. This, along with a difficulty in ensuring continuous and expeditious passage,95 creates the potential for underwater gliders to breach innocent passage where they do not have the permission of the coastal State to operate contrary to innocent passage. LOSC provides for the coastal State to require foreign ships exercising innocent passage to use sea lanes and traffic separation schemes; in particular this may apply to tankers, nuclear-powered ships and ships carrying nuclear materials, etc.96 Some coastal States may take the view that until they can be assured of the safe operation of UMS within their territorial seas, UMS will also be required to passage in specific sea lanes. Whilst not specifically designated as a class of ship to which sea lane passage is applicable, Article 22(2) is not exhaustive and coastal States may initially draw an analogy between the classes of ship listed and the relatively unknown quantity of UMS. Communication is particularly relevant to compliance with innocent passage; if coastal States object to activities undertaken by warship UMS they ‘may require the warship to leave the territorial sea immediately’,97 normally communicated by radio or government vessel visit. The requirement to leave territorial waters would also be communicated through diplomatic channels to the warship flag State. Whilst larger UMS should be contactable by radio, this may not the case for smaller UMS or underwater gliders. In the situation where radio communication cannot be established, the ability to communicate directly with the crew or Commanding Officer in person is removed, which then forces communication through the much more formal and time-consuming diplomatic channels, unless contact with the UMS’ shore

96 97 94 95

LOSC, Article 20. LOSC, Article 18(2). LOSC, Article 22(2). LOSC, Article 30.

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station can be established. In the case of smaller UMS, there may be a temptation on the part of coastal States to seize the vessel, or physically pick up or tow the UMS out of territorial waters if communications cannot be established. However, to do so could be a violation of that warship’s immunity, depending upon the circumstances, i.e. if the coastal State was not acting in self-defence. In December 2017 a Chinese Navy ship picked up a UUV being operated by the USNS Bowditch in apparently international waters in the South China Sea,98 and in January 2018 Houthi rebels picked up what appeared to be a US Navy UUV off the coast of Yemen,99 although it is unclear how or where it was found. This gives an idea of the approach that some coastal States might take towards small military UMS in territorial waters and elsewhere.

7.

APPLICATION OF COASTAL STATE JURISDICTION: TRANSIT PASSAGE

Transit passage is a right enjoyed by all ships and aircraft.100 It must also be continuous and expeditious, ships must proceed without delay through the strait, refrain from the threat or use of force against coastal States and refrain from any activities other than those incidental to their normal modes of continuous and expeditious transit.101 Unlike innocent passage, activities that might be a threat or use of force are not listed, however research and survey activities are prohibited without the permission of the coastal State(s).102 Again, coastal State(s) may designate sea lanes to promote the safe passage of ships103 but as this is a fairly common occurrence it would likely affect UMS in the same way that it affects other vessels. In contrast to innocent passage, States bordering straits may adopt laws and regulations relating to transit passage in respect of safety of navigation and the regulation of maritime traffic.104 Depending on those States’ concerns about UMS, it may be

98 D Lamothe and M Ryan, ‘Pentagon: Chinese Naval Ship Seized an Unmanned U.S. Underwater Vehicle in South China Sea’ (Washington Post, 2018) available at https://​www​.washingtonpost​.com/​news/​checkpoint/​wp/​2016/​12/​16/​defense​-official​ -chinese​-naval​-ship​-seized​-an​-unmanned​-u​-s​-ocean​-glider/​?utm​_term​=.​ 2ee9010eab5c. 99 B Werner, ‘VIDEO: Houthis Capture U.S. Navy Drone Off Yemen’ (USNI News, 2018) available at https://​news​.usni​.org/​2018/​01/​03/​houthi​-rebels​-find​-likely​-u​ -s​-navy​-unmanned​-underwater​-vehicle. 100 Per LOSC, Article 38, although some States assert that this only applies to parties to LOSC. The debate about whether transit passage is customary international law will not be addressed here. 101 LOSC, Article 39. 102 LOSC, Article 40. 103 LOSC, Article 41(1). 104 LOSC, Article 42(1)(a).

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that some adopt rules and regulations specifically in relation to UMS transit passage; there is no requirement to have those laws approved by a competent international organisation in the way that sea lanes must be.105 The laws must not discriminate between foreign ships or deny transit passage106 but they could make transit passage more restrictive for UMS. If such restrictions do come into play it is likely that we will see them develop over time in response to the growing size and proliferation of UMS. They might also be implemented in response to any accidents involving UMS within straits. Transit passage in a UMS’s normal mode will mean different things to different types of UMS. For many it will be interpreted in the same way that it is for manned vessels but it could be problematic for underwater gliders if, for example, they are not capable of the more complicated navigation required for transit passage. The prohibition against research and survey activities without coastal State permission will mean that those UMS whose sole purpose, and therefore normal mode, is conducting research and survey will need to be able to turn off the relevant sensors for the duration of the passage. Alternatively, they will not be able to transit straits without permission. Naval UMS whose sole purpose is to hunt or sweep for mines may be said to be operating in their normal mode of continuous and expeditious transit if they continue to do so during transit, but mine-hunting and -sweeping have been argued to be incompatible with transit passage107 unless (some assert) MCM operations are undertaken in self-defence.108 Underwater UMS will be able to transit straits submerged, as submarines currently do, as long as they can establish that this is their normal mode of transit. Currently, manned warships justify launching and recovery of aircraft such as helicopters during transit passage on the grounds that they are doing so for the purposes of security, which is a normal mode of transit. Aircraft not undertaking this tasking would otherwise be required to transit the strait continuously and expeditiously themselves. The launch of UMS for the purposes of force protection during transit passage would be likely to reignite the debate about whether such action is ‘normal’. Launch and recovery of UMS for any other purpose not in keeping with the normal mode of continuous and expeditious transit would breach the requirements of transit passage. Flag States will

LOSC, Article 41(4). No equivalent requirement exists in Article 42 with respect to the creation of law and regulations relating to transit passage. 106 LOSC, Article 42(2). 107 On the basis of the Corfu Channel Case (1949) ICJ Rep 4. However, that case dealt with non-suspendable innocent passage prior to the introduction of transit passage. 108 Charter of the United Nations 1945, Article 51. See also Henderson (n 73) 7. 105

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bear international responsibility for any loss or damage to coastal States if their naval UMS act contrary to transit passage or in breach of coastal laws.109 Innocent passage and transit passage are just two examples where the exercise of coastal jurisdiction that will need to be considered before military UMS can operate lawfully in foreign waters. Operations in archipelagic straits, contiguous zones and exclusive economic zones may also pose challenges for UMS, depending on the UMS’ purpose or role. The operation of UMS on the high seas is likely to be less contentious but it is interesting to consider what challenges military UMS might face when undertaking enforcement operations currently undertaken by warships as part of their maritime security role.

8.

LAW ENFORCEMENT OPERATIONS: DO NAVAL UMS HAVE A ROLE TO PLAY?

The use of UMS warships for enforcement is a difficult concept to grasp given that law enforcement is generally concerned with prevention or interception of international crime or breaches of sanctions committed by people. For example, how could an unmanned system combat piracy when it is the acts of the people on a vessel (or aircraft) that constitute the act of piracy?110 Enforcement is likely to require sailors from a warship to conduct a boarding to assess and take repressing action. One approach is to differentiate between ‘crew-like’ functions and ‘vessel-like’ functions, with the ‘vessel-like’ functions capable of being undertaken by UMS described as ‘carrying a boarding team, conducting surveillance, pursuing a fleeing vessel, signalling such a vessel to stop’.111 ‘Crew-like’ functions, such as ‘physically boarding a vessel, conducting inquiries, conducting searches, seizures and arrests’, would still fall to be conducted by a human boarding team or, perhaps one day, by robots.112 This is a helpful differentiation to make as navies move along a continuum from 100 per cent manned vessels undertaking enforcement tasking, to a situation where UMS will have role to play. UMS, for example, are likely to be capable of more persistent and less expensive surveillance than can currently be achieved using other assets and sensors.

111 112 109 110

LOSC, Article 42(5). LOSC, Article 101. Norris (n 3) 47. Ibid.

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Repression of Piracy

LOSC Article 100 creates a duty for all States to cooperate in the repression of piracy. The entitlement to seize ships involved in piracy sits with clearly identifiable warships and ships on government service,113 and complements a right to arrest persons and seize the property on board.114 All of those tasks would be problematic for a UMS to undertake unless it was playing a supporting role to a boarding team or a manned ship. A UMS could act as a platform for the insertion of a boarding team, but in doing so arguably becomes a manned warship for the purposes of that operation. It certainly demonstrates the potential for UMS to exercise varying levels of autonomy, depending on their tasking. The EDA sees UMS’ role in relation to counter-piracy operations as ‘[s]tabilisation, reconstruction and military assistance to third countries’.115 This indicates a much more indirect support role, with the aim of preventing a resort to piracy in the first place. Could UMS undertake the piracy or be pirated? It would be difficult for a civilian UMS to undertake piracy given that the illegal acts of violence or detention, or acts of depredation, must be committed by the crew or passengers of the ship.116 But what if the UMS was being directed by a shore-based crew to undertake acts of piracy? The answer to this lies again with the definition of crew and whether that role can be undertaken from ashore.117 It would not be possible for a military UMS to undertake piracy, as a pirate vessel must be a private vessel, but there remains the potential, albeit remote, for a mutiny to have been committed by the crew ashore, meaning that this could be ‘assimilated to acts committed by a private ship’.118 Perhaps a UMS whose control system had been hacked from ashore could be considered as pirated?119 This stretches the definition but practically piracy would seem to be an appropriate description of what had occurred so long as such hacking was an ‘illegal act of depredation’, committed by a private crew (of hackers), and all other criteria set out in LOSC Article 101 were met.120

LOSC, Article 107. LOSC, Article 105. 115 European Defence Agency (n 8) 88. 116 LOSC, Article 101(a). See also Chapter 5 in this volume. 117 See Chapter 5 in this volume, which specifically considers the definition of a ‘crew’ in relation to piracy. 118 LOSC, Article 102. 119 Van Hooydonk (n 61) 410. 120 LOSC, Article 101. 113 114

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Interception of Slave Trading

With respect to countering the slave trade, the requirement for every State to ‘take effective measures to prevent and punish the transport of slaves in ships authorised to fly its flag …’,121 supported by a right of visit for warships under Article 110(1)(b), is already an extremely difficult obligation to undertake and enforce. Human migration, people trafficking and slave trading are all too common as a result of conflict and economic hardship but differentiating between those different categories of people movement at sea is virtually impossible without intelligence to support an assessment. The ability of UMS to provide persistent surveillance of activities at sea could assist an assessment of whether a vessel is involved in the slave trade; however, UMS are not likely to provide a practical solution to slave interdiction; they could not effect arrests. Depending on the size and design of the UMS it might be able to do very little to assist those being traded into slavery. 8.3

Counter-Narcotics Operations

Counter-narcotics operations are a common law enforcement task undertaken by navies in accordance with the duty that all States have to suppress illicit traffic in narcotic drugs and psychotropic substances122 but unlike counter-piracy and slave trade operations there is no right of visit conferred upon warships under Article 110. States may only enforce Article 108 against ships flying their own flag, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 does not provide grounds to board another flag State’s vessel without that State’s permission.123 The same practical problems will be faced when considering the practical enforcement of Article 108 by UMS, which in this case could be confounded by the complicated communications required to be undertaken in order to obtain permission to exercise jurisdiction on board another State’s flagged vessel. 8.4

Hot Pursuit

National law enforcement by navies often involves hot pursuit. If hot pursuit can technically be undertaken by UMS, there is no reason why UMS should

LOSC, Article 99. LOSC, Article 108. 123 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, Article 17(3). 121 122

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not be able to play a contributory role in the pursuit, even if technical challenges mean that they are unable to complete the pursuit alone. UMS should be able to give a ‘visual or auditory signal to stop at a distance which enables it to be seen or heard by the foreign ship’124 (up to and including warning shots) and should be able to undertake uninterrupted pursuit if the foreign ship does not stop.125 The difficulty, as with other enforcement tasks, comes with the crew-like tasks of effecting arrest, checking papers, etc. What an unmanned system may facilitate is more time for a manned vessel to arrive on the scene; UMS have the benefit of not having to wait for a crew to man a vessel before being able to give chase. 8.5

Freedom of Navigation

Law enforcement can also include challenging unlawful acts by other States, such as excessive maritime claims, and a number of States conduct overt FoN operations designed to exercise their right to navigate in foreign States’ waters, typically to confront an asserted sovereignty or jurisdiction with which they disagree. These operations can be contentious and have resulted in confrontations between warships and significant diplomatic disagreement. States undertaking future FoN operations might see UMS as a preferred way to conduct these operations without risking the safety of a crew or putting a more expensive platform closer to the threat. However, the coastal State in question might see the use of UMS as more provocative than the use of a manned platform, depending on their perception of maritime ‘robots’. This, combined with the lack of humans who could be killed/injured, may invite the offended State to react more aggressively than if the platform were manned. There is arguably less at stake by interfering with the UMS’s State immunity, especially if the platform is smaller and perceived as more disposable. This could have the effect of escalating tensions beyond what would otherwise have been the case in relation to a manned platform. Whether the UMS are armed will also influence how the operation is perceived and responded to. 8.6

The Difference between UMS and UAVs

Enforcement activities highlight the differences between UAVs and UMS, and whilst military UMS development and deployment is some way behind UAV use, the legislative challenges do differ. There is generally less interaction and more distance between aircraft than there is between ships. UAVs are physic-

LOSC, Article 111(4). LOSC, Article 111(1).

124

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ally projected to undertake a specific task before returning to base, whereas that will not necessarily be the case for UMS, which will deploy, interact with other maritime users, conduct tasks including enforcement operations and, perhaps, never return to base. Therefore, particularly in relation to enforcement, it is not necessarily the case that direct parallels can be drawn between lessons learned from the use of UAVs and UMS.

9. CONCLUSION Future maritime security operations undertaken by navies will involve UMS but it is difficult to draw definitive conclusions in relation to the status of UMS because there is currently no agreement about their categorisation or ability to comply with current instruments. Contradictory opinions create interesting debates but the practical impact is that some States will be uncomfortable basing their naval operations upon divided advice, whereas others may exploit a lack of legal certainty to operate on the edges of legality. Militaries have invested substantial money and resource in UMS technology, creating something of a race to exploit the tactical and strategic benefits that the removal of the human, to varying degrees, could provide. The first issue to be determined is whether UMS can be classified as ships or whether they should be some other form of maritime craft. UMS will comply with the definition of ship in the majority of relevant international conventions, however the COLREGs definition of a vessel is problematic. Nevertheless, whilst it is likely that most UMS will be classified as ships, the classification of military UMS as warships is likely to be more controversial due to the current LOSC command and crewing requirements. Classification as a warship has a significant effect on the vessel’s rights. The alternatives, should UMS not qualify for warship status, are workable in some situations, however in armed conflict naval UMS will be expected to have warship status. For these definitional reasons the IMO’s MASS scoping exercise and consideration of treaties is welcomed, however LOSC is not included in the treaties under consideration and it is only surface UMS that are included; underwater UMS will need to be addressed. If UMS are to be accepted and operated as ships and warships, they will need to comply with coastal State jurisdiction to the same extent that manned warships do, however some UMS with specific roles may find compliance with innocent passage and transit passage problematic. In terms of operations, UMS are likely to have a role to play in enforcement and FoN operations, however the physical ‘crew-like’ functions to be taken in response to humans undertaking piracy, slave trading and drug smuggling, i.e. arrest, search and document checks, will still require military personnel in the near term. FoN operations could conceivably be undertaken by UMS but care will need to be

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taken to ensure that this is not perceived as a more provocative act than operations by manned warships. Until the IMO has completed its scoping work in 2020 and undertaken additional work to consider how and when any changes to existing international treaties will be made, a sensible and pragmatic approach should be taken to the application of pre-existing treaties and regulations to ensure the lawful use of UMS. Current international law can be applied, mutatis mutandis,126 to UMS. UMS should therefore comply with pre-existing obligations of ships and warships where at all possible, expecting the corollary rights. This will have the added benefit of increasing confidence, ‘strengthen[ing] the rule of law, enhanc[ing] compliance with international norms and promot[ing] stability of expectations’.127 Where naval UMS cannot comply with international law, changes or updates to current agreements may be unavoidable.

Kraska (n 19) 51. Ibid, 64.

126 127

7

Ships without nationality: interdiction on the high seas Andrew Murdoch1

1. INTRODUCTION The maintenance of legal order on the high seas is critical to the freedoms exercised by all states at sea. Given that the high seas cannot be subject to state sovereignty, the foundations of that order lie in the legal relationship between ships and their flag states. As Oppenheim puts it: The legal order on the high seas is based primarily on the rule of international law which requires every vessel sailing the high seas to possess the nationality of, and to fly the flag of, one state; by this means a vessel, and persons and things aboard, are subjected to the law of the state of the flag, and in general subject to its exclusive jurisdiction.2

The freedoms of the high seas are granted to coastal and landlocked states,3 which are able to exercise their rights by permitting ships to sail under their flag on the high seas.4 However, not every ship possesses the nationality of a state and the expressions ‘without nationality’, ‘flagless’ or ‘stateless’ are often used interchangeably to describe such ships, although the former description is the term used in the 1982 United Nations Convention on the Law of the Sea (LOSC).5

1 The views expressed in this chapter are those of the author and do not necessarily represent those of the United Kingdom’s Foreign and Commonwealth Office or Her Majesty’s Government. 2 R Jennings and A Watts (eds), Oppenheim’s International Law: Volume 1 Peace (9th edn, OUP 1998) [287]. 3 United Nations Convention on the Law of the Sea 1982, 1833 UNTS 397 (LOSC), Article 87(2). 4 LOSC, Article 90. 5 The term ‘unregistered’ does not accurately capture all ships that are without nationality, although sometimes it is used to do so.

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Activities of national law enforcement authorities are subject to the requirements and limitations of their domestic legal framework, which can be less permissive than the accepted limits of applicable international law. Although it is to be expected that a flag state will apply its domestic laws to ships possessing its nationality, there is no such expectation that it will do so in respect of ships without nationality. In this context, national law enforcement authorities can only interdict a ship without a flag state on the high seas if their domestic law permits them to do so. The term ‘interdiction’ describes a ‘two-step process: first, the boarding, inspection and search of a ship suspected of prohibited conduct; second, where such suspicions prove justified, taking measures including any combination of arresting the vessel, arresting persons aboard or seizing cargo’.6 If domestic criminal law has not been extended to apply to activities on board ships without nationality on the high seas, law enforcement agencies will not be able to undertake an interdiction, or elements of it, even if they believe that unlawful activity is occurring on board. Thus, the use of ships without nationality for criminal conduct can significantly hamper the ability of law enforcement authorities to counter such activity. While there is little research into this question, it seems likely that those engaged in illicit activity at sea are aware of this potential law enforcement gap and may seek to exploit it when undertaking activities such as drug trafficking,7 terrorism, illegal migration,8 or arms smuggling. In addition, failing to comply with national procedures for the grant of nationality can help criminals shield their ships from the attention of national maritime authorities. Additionally, ships validly registered in one state may sail under the flag of another, outwardly changing the flag they fly during passage. While this may result in the ship being assimilated to a vessel without nationality,9 it may also deter some states from seeking to interdict their ship on the high seas. This problem is magnified in situations of heightened political tension, when there can be a reluctance to interdict ships flagged to some states, even if it is suspected they are engaged in unlawful activities, in order to avoid potentially difficult political complexities with the flag state in question. D Guilfoyle, Shipping Interdiction and the Law of the Sea (CUP 2009) 4. ‘New Zealand Frigate Seizes Heroin Worth $235M’ (Airforce Mil NZ, 16 June 2015) available at http://​www​.airforce​.mil​.nz/​about​-us/​news/​media​-releases/​media​ -release​.htm@​guid​=​%7B7c8f162d​-3aa4​-49a2​-84c3​-05a6234a0c46​%7D​.htm. 8 Commission of the European Communities, Commission Staff Working Document, Study on the international law instruments in relation to illegal immigration by sea (Brussels, 15 May 2007, SEC(2007) 691), [1(5)]: ‘… the study takes as a starting point the factual situation regarding illegal immigration at the southern maritime external border, which is mainly characterised by being carried out by means of flagless and/or unseaworthy sea craft’. 9 LOSC, Article 92(2). 6 7

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For example, dhows flagged to the Republic of Yemen or the Islamic Republic of Pakistan engaged in trafficking drugs across the Indian Ocean have been known to switch flags, such as to that of the Islamic Republic of Iran, to avoid interdictions by US-led coalition warships. This practice is almost an inverse of the well-known practice of merchant ships flagging to major maritime powers, such as the United States (US), in order to be subject to their protection during times of conflict or escalated risk.10 More recently, there has been an emerging practice whereby ships may be denied a nationality and the entitlement to fly a flag. As part of its mandate to maintain peace and security in the context of the Democratic People’s Republic of Korea (DPRK), the United Nations Security Council (UNSC), acting under Chapter VII of the United Nations Charter, adopted UNSC Resolution 2321, which requires states to take action against vessels designated by the UN Sanctions Committee on the basis of its having reasonable grounds to believe that a vessel is engaged in prohibited activities.11 Such measures include requiring the flag state of a designated vessel to deregister the vessel. The Committee is actively using these powers.12 Given that in the past it has been difficult to secure agreement within the Security Council on using its powers under Chapter VII to authorize the interdiction of foreign flagged ships without flag state consent,13 this is an important development. The result of becoming 10 For example, 11 Kuwaiti tankers reflagged to the US during the 1980–1988 Gulf War, see IF Dekker and HHG Post (eds), The Gulf War of 1980–1988 (Martinus Nijhoff 1992) 239–240. 11 United Nations Security Council Resolution 2321 (2016) [12] provides: ‘Decides that the Committee, if it has information that provides reasonable grounds to believe the vessels are or have been related to nuclear or ballistic missile-related programmes or activities prohibited by Resolutions 1718 (2006), 1874 (2009), 2087 (2013), 2094 (2013), 2270 (2016) or this Resolution, may require any or all of the following measures with respect to vessels it designates pursuant to this paragraph: (a) the Flag State of a designated vessel shall de-flag the vessel; (b) the Flag State of a designated vessel shall direct the vessel to a port identified by the Committee, in coordination with the port State; (c) all Member States shall prohibit a designated vessel from entering their ports, unless in case of emergency, in case of return to the vessel’s port of origination, or in case of direction by the Committee; (d) a vessel designated by the Committee shall be subject to the asset freeze imposed in paragraph 8 (d) of Resolution 1718 (2006)’. 12 United Nations Press Release, ‘Security Council 1718 Sanctions Committee designates three vessels’, 16 October 2018, SC/13542, available at https://​www​.un​.org/​ press/​en/​2018/​sc13542​.doc​.htm. 13 Currently, the UNSC has not authorized interdictions of foreign flagged ships without the consent of the flag state, despite US-led attempts to secure such powers. China and Russia have reportedly blocked any such Chapter VII authorizations, despite US-led calls for such powers to be agreed. ‘US prepares high-seas crackdown on North Korea sanctions evaders’ (Reuters, 23 February 2018), reported that ‘China and Russia, which have blocked U.S. efforts at the United Nations to win approval for use of force

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deregistered is to render the vessel without nationality and so lose the potential protection of a flag state, allowing enforcement action to be taken against it. While the existence of vessels without nationality on the high seas is a recognized reality, it is less clear how enforcement agencies can, in practice, determine that this is the case, particularly as regards small ships on the high seas. This is of critical significance for the potential interdiction of ships suspected of being engaged in unlawful activity.14 Section 2 of this chapter explores the rules of international law applicable to determining if a ship is without nationality. Section 3 focusses on entitlement of a ship to fly the flag of a state and explains the role of registration, flying a flag and the possession of documentation. The practice of the United Kingdom (UK) is explained to illustrate how a state approaches the grant of nationality to ships within this framework. Section 4 will then examine different views concerning when a state may assert its jurisdiction over a ship without nationality, bearing in mind that the LOSC is silent on this issue. The practice of both the UK and the US will be examined. It will be argued that while the owner of a ship without nationality and those persons on board such a ship enjoy some protection under international law, the ship itself is not subject to the protection of any state. Under this ‘broad’ approach, the ship in question may be subject to the jurisdiction of any state during an interdiction if that is provided for under the national law of the interdicting state, including boarding, search and seizure of the ship. Although the LOSC framework does not expressly deal with the assertion of jurisdiction over ships without nationality, it nevertheless provides a sufficiently accommodating framework for states to address maritime security threats posed by such ships.

2.

WHEN IS A SHIP ‘WITHOUT NATIONALITY’?

The jurisdiction of flag states over ships that possess their nationality is the fundamental legal means by which order is maintained on the high seas. Given the importance of this jurisdictional control, this section will examine the applicable rules concerning the grant of nationality to a ship and how a nationality can in practice be determined. When undertaking any maritime interdiction operation, a preliminary issue will be ascertaining the legal status of the ship in question. In particular, those interdicting ships will need to determine whether there is a state which exercises flag state jurisdiction over the in North Korea interdiction operations, are likely to oppose new actions if they see the United States as overstepping’, available at https://​www​.reuters​.com/​article/​us​-north​ -korea​-missiles​-ships​-exclusive/​exclusive​-u​-s​-prepares​-high​-seas​-crackdown​-on​-north​ -korea​-sanctions​-evaders​-sources​-idUSKCN1G72UY. 14 Guilfoyle (n 6) 4.

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vessel, or whether it can properly be regarded as being ‘without nationality’. This requires, inter alia, an understanding of the significance of ‘flying a flag’, ‘registration’, and the domestic law of the flag state concerned. A useful starting point is LOSC Article 92, which provides: 1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. 2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.

Article 92 makes it clear that ships are obliged to sail on the high seas under the flag of a single state and, subject to limited exceptions, to be subject to its exclusive jurisdiction. As the earlier passage from Oppenheim notes,15 there is a legal relationship between possessing the nationality of a state and flying that state’s flag. This would suggest that a ship would be ‘without nationality’ if it was unable to fly the flag of a state. Such an approach, which links flying a flag and the possession of nationality, is consistent with the consequences of its sailing under the flag of two or more states: as stated in Article 92(2), if a ship sails ‘under the flags of two or more states using them according to convenience’ it ‘may be assimilated to a ship without nationality’. LOSC Article 91 provides the framework by which to understand the precise relationship between the grant of nationality by a state and the flying of that state’s flag. It provides: 1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. 2. Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect.

Article 91(1) has the effect of distinguishing between a state’s ‘grant of its nationality’, the ‘registration of ships in its territory’ and ‘the right to fly its flag’. Issues concerning registration of ships are considered further below but it is clear that the act of registration is not regarded as an essential condition for the grant of nationality. It is, therefore, inaccurate to equate an ‘unregistered ship’ with a ship ‘without nationality’. Instead, Article 91(1) makes clear that

Jennings and Watts (n 2) 287.

15

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a ship possesses the nationality of the state whose flag it is ‘entitled to fly’. The critical condition by which a grant of nationality to a ship must be assessed is whether the ship has an entitlement to fly the flag of the state in question. If there is no such entitlement then the ship can properly be categorized as being ‘without nationality’. Of course, entitlement to fly a flag is distinct from the act of flying the flag. Even if a ship is not flying the flag of a state, it does not forfeit the right to claim the nationality of a state whose flag it is entitled to fly. That said, the failure to fly the flag which one is entitled to fly may have other consequences. For example, during maritime interdiction operations, the failure to fly a flag may be relied upon by a warship to justify a right of visit under LOSC Article 110(1)(d) (see further below). The conditions for the entitlement to fly the flag of a state are, as the International Tribunal for the Law of the Sea (ITLOS) confirmed in its judgment in M/V Saiga (No. 2), a matter for each state to determine: ‘Article 91 leaves to each State exclusive jurisdiction over the granting of its nationality to ships. In this respect, article 91 codifies a well-established rule of general international law.’16 While it is accepted that it is for each state to fix the conditions which entitle a ship to fly its flag, there is still some debate concerning whether there are limitations on the conditions which a state may require. In particular, are states required to ensure that a ship has a close nexus with the flag state, such as being owned, operated or crewed by its nationals? This centres on the requirement in Article 91(1) for there to be a ‘genuine link between the State and the ship’. While a detailed discussion of this is outside the scope of this chapter,17 it should be noted that state practice has not established any generally accepted conditions that must exist to establish a genuine link. This approach is entirely consistent with the interpretation of Article 91 by the ITLOS, which concluded that … the purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which validity of the registration of ships in a flag State may be challenged by other States.18

The M/V Saiga (No. 2) Case (Saint Vincent and the Grenadines v. Guinea) [1 July 1999] 36, [63]. 17 Ibid, [83]. See also discussion in RR Churchill and AV Lowe, The Law of the Sea (3rd edn, Manchester University Press 1999) 257–263. 18 Ibid. 16

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ENTITLEMENT TO FLY A FLAG

Importantly, Article 91 obliges states to ‘issue to ships to which it has granted the right to fly its flag documents to that effect’. Such documents will be evidence of the nationality of that ship.19 This important provision ensures that if the nationality of a ship is challenged, such as during a right of visit under LOSC Article 110(1), they can prove an entitlement to fly a flag. Although recognizing the general position that international law leaves states with discretion in fixing conditions for the grant of nationality, the ITLOS noted the important role of registration of ships as a means of doing so: ‘International law recognizes several modalities for the grant of nationality to different types of ships. In the case of merchant ships, the normal procedure used by States to grant nationality is registration in accordance with the domestic legislation adopted for that purpose.’20 Reliance on registration as a means of granting nationality through providing an entitlement to fly a state’s flag is consistent with the obligation contained in LOSC Article 94(2). This provision, concerning the duties of the flag state, places an obligation on states to maintain a register of ships that are entitled to fly its flag, with some exceptions for those of a small size. Article 94 provides: 2. In particular every State shall: (a) maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size;

Since it is states which establish the conditions of registration, there will inevitably be some variation. However, whatever the conditions, once a ship is properly registered it will be entitled to fly the flag of that state and possess its nationality. Certificates of registration will be issued to such ships, satisfying the requirement in Article 91(2). In the UK the principal framework for registration of ships is the Merchant Shipping Act 1995 (MSA 1995).21 Section 2 of that Act provides that every ‘British ship’ is entitled to fly the national colour which, with the exception of

The documents a flag State is required to issue may take a variety of names and forms prescribed by national legislation: A Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 699. 20 M/V Saiga (No. 2) Case (n 16) [64]. 21 Merchant Shipping Act 1995, (MSA) Ch. 21. 19

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British government ships, will be the Red Ensign.22 The MSA 1995 limits the scope of the term ‘British Ship’ to four categories of ship, these being if the: (1) (2) (3) (4)

ship is registered in the United Kingdom under the Act; ship is a registered United Kingdom government ship; ship is registered under the law of a relevant British possession, or ship, other than a fishing vessel, is: less than 24 metres in length; not registered under category (1); wholly owned by qualified owners; and not registered under the law of a country outside the United Kingdom. 23

Ships in categories (1) to (3) must be registered. The MSA 1995 provides for a central register of British ships, the United Kingdom Ships Register, and there are strict eligibility criteria for registration which are specified in subordinate regulations.24 In addition, the MSA 1995 allows British possessions (both Crown Dependencies and UK Overseas Territories) to establish their own registers of British ships, albeit with restrictions on ships according to their tonnage, size and type. The register of British ships, for the purposes of LOSC Article 94(2), will therefore be comprised of the international shipping registries operated by the UK, three Crown Dependencies (Isle of Man, Guernsey and Jersey) and nine UK Overseas Territories (Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, St Helena and the Turks & Caicos Islands). Collectively, these registries are known as the Red Ensign Group (REG). While the UK has devolved some of its powers to the Crown Dependencies and UK Overseas Territories, it remains ultimately responsible as a matter of international law for the discharge of LOSC obligations by relevant REG members. All ships on the REG registries will be issued with a Certificate of Registry, fulfilling the duty to issue documentation provided for in LOSC Article 91(2), as confirmation of their entitlement to fly the flag signifying British nationality. Ships in category (4) are British ships that are entitled to fly the UK’s flag without any requirement for prior registration. These small ships fall within the category provided for in LOSC Article 94(2), of ships that are ‘excluded from generally accepted international regulations on account of their small size’. Category 4 ships have strict ownership and residence conditions that are con-

22 Versions of the Red Ensign are permitted in specified circumstances under MSA, Section 2(3). These include a version defaced with the appropriate national colour that can be flown on vessels registered with a Crown Dependency or UK Overseas Territory. 23 MSA, Sections 1(1) and (2). 24 The Merchant Shipping (Registration of Ships) Regulations 1993, SI 1993/3138.

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tained within subordinate legislation.25 Although there is no legal requirement under UK law for this category of ships to be registered, qualified owners can opt to do so on what is known as the ‘small ships register’. Once registered on the small ships register the ships are issued with a Certificate of Registry in order to prove they are entitled to fly the Red Ensign. The UK’s approach of (non-) registration of small ships has the advantage of reducing the regulatory burden on the owners of such ships. Given that such ships mainly operate within the UK’s territorial sea, that approach is entirely pragmatic. In the case of category 4 ships, the MSA 1995 regime does not provide for the automatic issuing of documentation to prove they are entitled to fly the British flag. This takes a narrow approach to the obligation in Article 91(2), which provides that ‘[e]very State shall issue to ships to which it has granted the right to fly its flag documents to that effect’. UK authorities only issue documentation to a non-registered category 4 ship on request. This could create difficulties for such ships operating on the high seas if they are challenged to prove their nationality. In particular, LOSC Article 110(1)(d) provides for a right of visit on the high seas by a foreign ship, if there is reasonable ground for suspecting that it is without nationality: 1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:

… (d) the ship is without nationality;

If a British (non-registered) category 4 ship is challenged during an Article 110(1)(d) visit it will not be able to provide the necessary documentation to prove it is not stateless. Such vessels therefore risk being treated as being without nationality, given that having such documentation is the primary means by which a ship will be expected to prove its entitlement to fly a flag. Although UK authorities would issue documentation ex post facto to confirm entitlement to fly a flag, the ship may well have already suffered delay and Ibid. Applicants must be ordinarily resident in the UK and be (a) British citizens; (b) nationals of an EU or EEA country other than the UK and who are established in the UK in accordance with Articles 48 and 52 of the EU Treaty; (c) British Dependent Territories citizens; British Overseas citizens; persons who under the British Nationality Act 1991 are British subjects; persons who under the Hong Kong (British Nationality) Order are British Nationals Overseas; and (d) British Commonwealth citizens not falling within those paragraphs. 25

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other harm. Furthermore, this approach places the burden on the state exercising an Article 110 right of visit to make enquiries with the claimed flag state, solely because the flag state has failed to make adequate provision for the issuance of relevant documentation. Given the current legislative practice in the UK, unofficial guidance has been issued to encourage owners of category 4 ships to register if they intend to leave the UK’s territorial sea.26 This reflects the fact that ships will often be required to identify and verify their nationality and port of registry when visiting a foreign port.

4.

ASSERTING JURISDICTION OVER SHIPS WITHOUT NATIONALITY

Article 110(1)(d) expressly allows states to assert limited jurisdiction over ships suspected of being without nationality by boarding them for certain purposes. Article 110 provides that in exercising this right the warship may ‘proceed to verify the ship’s right to fly its flag’. To this end, it may send a boat under the command of an officer to the suspected ship. Documents may be checked and, if suspicion remains, an examination of the ship itself may be conducted. However, other than the boarding, examination of documents and a potential search, LOSC is silent concerning the extent to which the interdicting state may assert jurisdiction over a ship that is without nationality. Indeed, the consequences of statelessness are, as a matter of treaty law, unclear. No treaty fully addresses the issue of whether a ship may be subjected to the national law of the interdicting state simply by virtue of being stateless.27 The high point in treaty law is the Protocol against the Smuggling of Migrants by Land, Sea and Air of 2000 (Protocol). Under Article 8(7) of the Protocol, a ship that is without nationality can be boarded and searched if there are reasonable grounds to suspect it is engaged in the smuggling of migrants by sea. If evidence is found which confirms this suspicion, the boarding state can take ‘appropriate measures in accordance with relevant domestic and international law’.28 This provision clearly contemplates that states can assert jurisdiction Gov.uk, ‘Register a boat’ available at https://​www​.gov​.uk/​register​-a​-boat/​the​-uk​ -ship​-register. 27 D Guilfoyle, ‘The High Seas’ in DR Rothwell, AG Oude Elferink, K Scott and T Stephens (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 218. For example, the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, Article 17(2), contemplates action against a vessel ‘not displaying a flag or marks of registry’ where there are reasonable grounds to suspect the vessel is engaged in illicit traffic, but provides no details on what form that action could take. 28 Protocol against the Smuggling of Migrants by Land, Sea and Air, 2000, Article 8(7) provides that ‘[a] State Party that has reasonable grounds to suspect that a vessel 26

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which goes beyond the scope of that provided for by Article 110. However, the precise limits of such ‘appropriate measures’ and the identification of the ‘relevant domestic and international law’ are not defined in the Protocol. The Italian Supreme Court has attempted to interpret this provision and concluded that it can encompass diversions and seizure of the ship.29 Positions adopted by the UNSC also suggest that states can assert jurisdiction over ships without nationality for purposes that go further than the strict confines of boarding under Article 110. For example, in the context of migrant smuggling from Libya across the Mediterranean Sea, the UNSC confirmed that states can … inspect, as permitted under international law, on the high seas off the coast of Libya, any unflagged vessels that they have reasonable grounds to believe have been, are being, or imminently will be used by organised criminal enterprises for migrant smuggling or human trafficking from Libya, including inflatable boats, rafts and dinghies.30

This statement of what existing international law permits arguably goes further than Article 110. Unlike Article 110(2), where the drafting31 indicates that an examination of the ship remains part of the purpose of verifying a ship’s right to fly its flag, the implicit grounds and purpose for the UNSC inspection concern suspicions of criminal activity. However, as with existing treaty provisions, it does not address the question of what might be the consequences of an inspection. The silence of LOSC and other treaty provisions concerning the nature of the jurisdiction which an interdicting state may exercise over a ship found is engaged in the smuggling of migrants by sea and is without nationality or may be assimilated to a vessel without nationality may board and search the vessel. If evidence confirming the suspicion is found, that State Party shall take appropriate measures in accordance with relevant domestic and international law.’ 29 Italian Jurisprudence on Illegal Immigrant Smuggling – Asserting Jurisdiction on the High Sea, Eurojust, March 2016, Annex II-7, Italian Supreme Court, Appeal of Farrag Ali’ Ali’ Mostafa, 23 May 2014. In this case the Supreme Court considered the seizure on the high seas of a vessel without a flag. Having regard to LOSC and European Court of Human Rights jurisprudence, the Court held that ‘appropriate measures’ in Article 8(7) of the Protocol against the Smuggling of Migrants by Land, Sea and Air 2000 include the right of visit and inspection, diversion to a harbour of the State and the institution of proceedings in the visited vessel, such as seizure of the ship and arrest of the people found on board. 30 United Nations Security Council Resolution 2240 (2015), [5]. 31 LOSC, Article 110(2) provides that a warship may proceed to verify the ship’s right to fly its flag, and ‘to this end …’ the warship boat may firstly check documents and, if suspicions as to the ship’s status remain, proceed to further examination on board the ship.

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to be without nationality has resulted in there being two different general approaches in legal opinions. The first ‘broad’ view is that since a ship without nationality does not have the protection of a given state it can therefore be subject to the jurisdiction of any state (including the jurisdiction to arrest the vessel, arrest persons on board and/or to seize the cargo). The second ‘narrow’ view is that ‘some further jurisdictional nexus or permissive rule is required to justify seizure’32 or other forms of enforcement jurisdiction. 4.1

The ‘Broad’ View

The Asya case33 is often relied upon in support of the ‘broad’ view. The case involved the merchant ship Asya, which in 1946 was sighted by a British warship while on the high seas. The Asya was not flying a flag when first sighted but hoisted a Turkish flag as the warship approached. On the approach of a British boarding party, the Asya hauled down the Turkish flag and raised the flag of Israel (which was not a state at the time). The Privy Council determined that the Asya did not have appropriate documentation and was intending to land illegally over 700 passengers in Palestine. It was escorted to a Palestinian port, where the passengers were sent to a clearance camp, and the ship was subject to forfeiture. The owners of the Asya argued that the action taken had violated the right of the ship to sail in the open sea off the coast of Palestine, whatever her mission might be. The Privy Council held that the freedom of the open sea, whatever those words may connote, is a freedom of ships which fly, and are entitled to fly, the flag of a State which is within the comity of nations. The ‘Asya’ did not satisfy these elementary conditions. No question of comity nor any breach of international law can arise if there is no State under whose flag the vessel sails. Their Lordships would accept as a valid statement of the law the following passage from Oppenheim’s International Law (6th Ed.) Vol, I, p.546: ‘In the interest of order on the open sea a vessel not sailing under the maritime flag of a State enjoys no protection whatever, for the freedom of navigation on the open sea is freedom for such vessels only as sail under the flag of a State.’ Having no usual ship’s papers which would serve to identify her, flying the Turkish flag, to which there was no evidence she had a right, hauling it down on the arrival of a boarding party and later hoisting a flag which was not the flag of any State in being, the ‘Asya’ could not claim the protection of any State nor could any State claim that any principle of international law was broken by her seizure.

Guilfoyle (n 6) 17. Naim Molvan, Owner of Motor Vessel Asya v. Attorney General of Palestine [1948] AC 351. 32 33

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The Asya was subject to enforcement jurisdiction that went beyond that which was subsequently provided for in LOSC Article 110(1)(d).34 Having found no documentation to evidence an entitlement to fly a flag of any state, as well as that it had wrongfully flown two different flags, the ship was subject to an involuntary diversion from the high seas into the territorial sea, and eventually to forfeiture. While there was no discussion of a positive right under international law to assert such jurisdiction, the Privy Council was satisfied that such action did not violate international law. The Asya has been cited with approval in the US. United States v. Marino Garcia35 is the leading US case36 concerning the assertion of law enforcement jurisdiction over stateless ships, including seizure and forfeiture. This 1982 judgment concerned the seizure by the US Coast Guard of vessels carrying marijuana on the high seas. While the judgment noted that there are restrictions on the exercise of jurisdiction over foreign vessels on the high seas, it held that those restrictions, and the relevant exceptions to them, were not applicable to stateless vessels. The Court held: Vessels without nationality are international pariahs. They have no internationally recognized right to navigate freely on the high seas …. Moreover, flagless vessels are frequently not subject to the laws of a flag-state. As such, they represent floating sanctuaries from authority and constitute a potential threat to the order and stability of navigation on the high seas … 37

After citing the Asya case with approval, the Court went on to conclude that international law permits any nation to subject stateless vessels on the high seas to its jurisdiction. Such jurisdiction neither violates the law of nations nor results in impermissible interference with another sovereign nation’s affairs. We further conclude that there need not be proof of a nexus between the stateless vessel and the country seeking to effectuate jurisdiction. Jurisdiction exists solely as a consequence of the vessels status as stateless.38 It should also be noted that Article 22 of the 1958 Convention on the High Seas does not contain a provision equivalent to LOSC Article 110(1)(d) either. In MH Nordquist (ed), The United Nations Convention on the Law of the Sea 1982: A Commentary, vol. 3 (Martinus Nijhoff 1995) 245, it was suggested that in addition to a ship without nationality under LOSC, Article 92(2), it might ‘be applied to any ship not flying a national flag or bearing equivalent markings identifying its nationality’. 35 United States v Marino-Garcia, US Court of Appeals (11th circuit 9 July 1982), 679 F2d 1373, [12] and [17]. 36 HE Anderson, III, ‘The Nationality of Ships and Flags of Convenience: Economics, Politics, and Alternatives’ (1996–1997) 21 Tulane Maritime Law Journal 142–143. 37 Marino-Garcia (n 35) [12]. 38 Ibid, [17]. 34

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United States v. Marino Garcia supports the position that international law positively permits the exercise of jurisdiction over stateless ships. Furthermore, the exercise of such jurisdiction is not conditional on there being a nexus between the state asserting jurisdiction and the stateless ship – the legal status of being ‘stateless’ is sufficient in and of itself to permit the exercise of both prescriptive and enforcement jurisdiction. This position is consistent with other US cases.39 As has been observed,40 even those US court circuits that normally require that there is a nexus between illicit activity on board a foreign ship interdicted on the high seas and the US have been satisfied that such a nexus is unnecessary when prosecuting the crews of ships without nationality. In United States v. Caicedo,41 for example, the Court found that ‘international law restrictions on the right to assert jurisdiction over foreign vessels on the high seas and the concomitant exceptions have no applicability in connection with stateless vessels’. Heijer described the ‘broad’ view as a … school of thought that ships without nationality do not enjoy the protection of any state and, in the absence of competing claims of state sovereignty, any state may apply its domestic laws to a stateless vessel and to that end proceed with the boarding, search and seizure of that vessel. That ships without nationality are exposed to such enforcement measures is further considered essential for preventing the open seas from becoming a region of lawlessness and anarchy.42

A public order rationale is at the heart of the ‘broad’ view in that it seeks to address what would otherwise be an absence of flag state control over such vessels and, as a result, they would be operating beyond the control of any state on the high seas. It is the absence of flag state control that justifies measures being taken against them. As McDougal, Burke and Vlasic also note: so great a premium is placed upon the certain identification of vessels for purposes of maintaining a minimal order upon the high seas ... that extraordinary deprivational measures are permitted with respect to stateless ships. Thus, it is commonly

For example, United States v. Dominguez, 604 F.2d 304, 308 (4th cir. 1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.2d 644 (1980); United States v. Rubies, 612 F.2d 397, 403 (9th cir. 1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980). 40 A Bennett, ‘That Sinking Feeling: Stateless Ships, Universal Jurisdiction, and the Drug Trafficking Vessel Interdiction Act’ (2012) 37 Yale Journal of International Law 433–461, 443. 41 United States v. Caicedo, 47 F.3d 370, 372 (9th cir. 1995). 42 M den Heijer, Europe and Extraterritorial Asylum (Hart 2012) 224. 39

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considered that ships either having no nationality or falsely assuming a nationality are almost completely without protection.43

McLaughlin adds that States are naturally opposed to the idea that a vessel might hold no nationality – that is, not be subject to a regulating and responsible flag State – because this would imply that there is no jurisdiction applicable over that vessel. The modern view, consequently, is that a vessel without nationality is subject to the jurisdiction of all States.44

The ‘broad’ approach also appears to have been accepted by the European Commission, at least in the context of illegal migration by sea: ‘the flagless ships generally used in practice for the irregular transportation of migrants cannot invoke freedom of navigation in the high seas. Any country can intervene against such ships and can prevent them from passage, proceed to arrest or escort the flagless ship to a port.’45 4.2

The ‘Narrow’ View

Despite having judicial and academic support, the ‘broad’ view is not accepted by all commentators, some of whom support a more circumscribed approach to the assertion of jurisdiction over ships without nationality (the ‘narrow’ view). Papastavridis argues that a grammatical and purposive interpretation of the right of visit in Article 110 leads to the conclusion that, beyond boarding and, in the case of further suspicion, the right of search, LOSC does not provide for any further assertion of jurisdiction over such ships.46 He suggests that while states are permitted to divert a ship without nationality to a port in order to facilitate limited investigations into the status of the ship and persons on board, they are not permitted to appropriate or take enforcement measures against the MS McDougal, WT Burke and IA Vlasic, ‘The Maintenance of Public Order at Sea and the Nationality of Ships’ (1960) 54 American Journal of International Law 25, 76–77. See also B Hart Dubner and MC Arias, ‘Under International Law, Must a Ship on the High Seas Fly the Flag of a State in Order to Avoid Being a Stateless Vessel? Is a Flag Painted on Either Side of the Ship Sufficient to Identify It?’ (2017) 29 University of San Francisco Maritime Law Journal 99. 44 R McLaughlin, ‘Authorizations for Maritime Law Enforcement Operations’ (2016) 98(2) International Review of the Red Cross 465–490, 486. 45 Commission of the European Communities, Commission Staff Working Document, Study on the international law instruments in relation to illegal immigration by sea, Brussels, 15 May 2007, SEC(2007) 691, [2.2(2)]. 46 E Papastavridis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans (Hart 2013) 265. 43

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ship. However, such an approach leaves unanswered the question as to what would happen to a ship found to be without nationality, given that it is unlikely that it would be permitted to leave port. Barnes also notes there is ‘in fact little non-US jurisprudence or general State practice on the matter’47 and suggests that a positive right of visit does not imply wider enforcement powers. Churchill and Lowe maintain that there must be some jurisdictional nexus in order for a state to extend its laws to those on board a stateless ship and enforce those laws against them.48 They argue that to assert jurisdiction over a ship without nationality on the basis that it is not subject to the protection of another state would ‘ignore the possibility of diplomatic protection being exercised by the national State of the individuals on such stateless ships’.49 Guilfoyle agrees and argues that treaty practice – including the lack of express authority in LOSC – is consonant with the requirement for a further jurisdictional nexus permitting coercive action such as seizure or arrest.50 However, he does concede that state practice appears to favour the absence of a general prohibitive rule on further coercive action in respect of stateless vessels. Anderson considers the correct approach to be that jurisdiction should be no different with respect to a ship without nationality than that applicable to any other ship. He therefore shares the view that a state should have some nexus or, alternatively, be able to provide some other basis for assuming jurisdiction over the vessel. Such an approach, he argues, would have regard to the legal interests of the owners of the ship.51 4.3

Arguments in Favour of the ‘Broad’ View

A key problem with the ‘narrow’ view is that it is based on an assumption that there needs to be a clear permissive statement that stateless ships may be interdicted and prescriptive and enforcement jurisdiction exercised over them.52 The freedoms of the high seas are granted to states,53 not ships, and states

47 R Barnes, ‘The International Law of the Sea and Migration Control’ in B Ryan and V Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Martinus Nijhoff 2010) 130–133. 48 Churchill and Lowe (n 17) 214. 49 Ibid. 50 Guilfoyle (n 6) 17. 51 Anderson (n 36) 141–143. This position appears to be premised on the requirement for due process in that ‘[u]nless there is a judgment against the vessel, a seizure should not be effected and other interests should be given an opportunity to argue against the assumption of jurisdiction on the grounds of forum non conveniens’. 52 Heijer (n 42) 224. 53 LOSC, Article 87(2).

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exercise this freedom through ships flying their flag on the high seas.54 Ships without any nationality do not benefit from the rights or freedoms conferred by international law. Similarly, individuals do not directly benefit from these freedoms. As the Court of Justice of the European Union has held: ‘[i]f a ship is not attached to a State, neither the ship nor the persons on board enjoy the freedom of navigation’.55 As a result, there can be no violation of international law if a state exercises jurisdiction, either prescriptive or enforcement, over such ships while conducting an interdiction on the high seas. The ‘narrow’ approach also fails to address the strong public policy grounds for adopting a permissive approach to jurisdiction over ships without nationality, which is to maintain order on the high seas by preventing such ships becoming floating sanctuaries free from authority.56 Maintenance of order on the high seas is in the interests of all states. The ‘broad’ approach to the exercise of jurisdiction does not imply that a state can do anything it wishes with the ship and those persons and cargo on board. Meyers asserts that there are two overarching limitations:57 firstly, a state cannot assert exclusive jurisdiction over a vessel without nationality, since exclusivity is a function of nationality;58 and, secondly, no state is permitted to equate ‘statelessness’ with unlawfulness since international law does not make statelessness unlawful. Beyond these overarching limits, Meyers argues that every state ‘may declare its law applicable to any stateless ship’.59 However, he draws an important distinction between the use of the ship and ownership of the ship.60 The status of being ‘without nationality’ relates to the ship, which is as a result afforded no protection under international law. As O’Connell notes, ‘a “ship without nationality”, is not necessarily a ship without law … but it is a ship without protection’.61 In contrast to the ship, the owner of the vessel and persons aboard are not without protection in law. Any person aboard a ship without nationality is entitled to protection in respect of

LOSC, Article 90. Case C-308/06 The Queen on the application of International Association of Independent Tanker Owners (Intertanko) and Others v. Secretary of State for Transport Judgment of the Grand Chamber of the Court of Justice of the European Union (3 June 2008) [60]. 56 Marino-Garcia (n 35). 57 H Meyers, The Nationality of Ships (Springer Netherlands 1967) 318–321. 58 LOSC, Article 92(1). 59 Meyers (n 57) 318. 60 Ibid. 61 DP O’Connell, The International Law of the Sea, vol. II (Clarendon Press 1984) 755. 54 55

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considerations of humanity62 and applicable human rights law.63 They may also be subject to the jurisdiction of their state of nationality in respect of a wide range of activities as provided for under domestic legislation, including criminal law concerning extraterritorial offences. While national laws must be in place to justify interferences, it is doubtful whether the lack of specific legal certainty concerning the application of the interdicting state’s laws to those on board a ship without nationality would amount to a breach of its international human rights obligations. In a case involving the interdiction by French naval forces of a Cambodian ship in the context of drug trafficking operations, the Grand Chamber of the European Court of Human Rights held that French law ‘[f]ailed to meet the requisite conditions of foreseeability and accessibility: it is unreasonable to contend that the crew of a ship on the high seas flying the Cambodian flag could have foreseen – even with appropriate advice – that they might fall under French jurisdiction’.64 This approach by the Court to the requirements of legal certainty can be satisfied in situations involving the interdiction of ships without nationality. For, to avoid any jurisdictional gap, it is reasonable to conclude that all persons sailing on such ships have knowingly exposed themselves to the national laws of any state that has through domestic law extended its jurisdiction in accordance with its human rights obligations. In addition, states can always exercise diplomatic protection in relation to the owner of the ship and its nationals aboard.65 If a ship without nationality

J Crawford, Brownlie’s Principles of Public International Law (8th edn, OUP 2012) 30: ‘A ship without nationality loses the protection of the law with respect to boarding (and potentially seizure) on the high seas. However, such ships are not outside the law altogether; their occupants are protected by elementary considerations of humanity.’ 63 Medvedyev and Others v. France App. No. 3394/03 (ECHR, 29 March 2010). See also Council Regulation (EC) 656/2014 OJ L 189/13 concerning countering migration by sea (2014): ‘Recital 8 has regard to obligations ‘... under international law, in particular … the United Nations Convention relating to the Status of Refugees, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations Convention on the Rights of the Child and other relevant international instruments’. 64 Medvedyev (n 63) [92]. On legal certainty [80] states: ‘It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application … which requires that all law be sufficiently precise to avoid all risk of arbitrariness and to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances of the case, the consequences which a given action may entail.’ 65 R Barnes, ‘Flag States’ in Rothwell et al (eds), The Oxford Handbook (n 27) 314. 62

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is confiscated, the state of nationality of the owner, people on board or cargo could complain about the expropriation of its nationals’ property or their treatment.66 This means that the ‘broad’ approach does not rule out the protection of nationals or their interests on board ships without nationality and so objections on this ground appear to lack force. 4.4

Legislation Consistent with the ‘Broad’ View

UK legislation provides several examples of the extension of jurisdiction over ships without nationality. The Criminal Justice (International Cooperation) Act 1990 (1990 Act) was enacted to implement the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention). Section 19(1) of the 1990 Act expressly provides for jurisdiction over a ‘British ship, a ship registered in a state other than the United Kingdom which is a party to the Vienna Convention … and a ship not registered in any country or territory’. This language would be broad enough to include ships without nationality involved in the trafficking of drugs by sea, consistent with Article 17 of the Vienna Convention. Schedule 3 of the 1990 Act grants extensive enforcement powers over such ships, which include powers to stop, board, search, divert and detain the ship, as well search and arrest powers over persons on board. Section 79 of the Wireless Telegraphy Act 2006 provides for enforcement jurisdiction over all ships in designated areas of the high seas. While not addressed specifically, the provision is broad enough to encompass ships without nationality, which is consistent with the position adopted under previous legislation in this field.67 The legislation provides for powers to board, search, detain, seize and arrest to enforce the prohibitions. More recently, Section 35(1) of the Modern Slavery Act 2015 provides enforcement powers over ‘a ship without nationality in England and Wales waters or international waters’. There are equivalent provisions in the Act dealing with the waters off the coasts of Scotland and Northern Ireland, which were dealt with separately owing to different policing arrangements and powers within the UK. The term ‘international waters’, for the purposes of this legislation, means waters beyond the territorial sea of the UK or of any other state or relevant territory.68 The definition of a ‘ship without nationality’ reflects the position in LOSC, namely that it describes a ship which ‘is not Seas 540. 67 68 66

TL McDorman, ‘Stateless Fishing Vessels, International Law, and the UN High Fisheries Conference’ (1994) 25 Journal of Maritime Law and Commerce 531 Marine, &c., Broadcasting (Offences) Act 1967, as amended (now repealed). Modern Slavery Act 2015, Section 39.

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registered in, or otherwise entitled to fly the flag of, any State or relevant territory’ or which ‘sails under the flags of two or more States or relevant territories, or under the flags of a State and relevant territory, using them according to convenience’.69 Similar drafting has been included in the Sanctions and Anti-Money Laundering Act 2018. Section 19,70 concerning the enforcement measures in respect of ships, is extended to ships without nationality outside the territorial sea of any state (or relevant British possession.)71 The definition of ‘international waters’ and ‘ship without nationality’ mirrors the approach in the Modern Slavery Act 2015. Enforcement powers, which focus on prohibited goods, include authority to stop, board, search, seize and divert. Lastly, Section 84 of the Policing and Crime Act 2017 envisages that designated law enforcement officers can exercise law enforcement powers (including stop, search, divert, detain, search, arrest and seizure) over ships without nationality. In particular, Section 84(1) of the Policing and Crime Act 2017 provides: A law enforcement officer may, for the purpose of preventing, detecting, investigating or prosecuting an offence under the law of England and Wales, exercise any of the maritime enforcement powers in relation to— (a) a United Kingdom ship in England and Wales waters, foreign waters or international waters, (b) a ship without nationality in England and Wales waters or international waters …

Other states have also enacted legislation that expressly deals with enforcement jurisdiction against ships without nationality.72 Examples include the US Drug Trafficking Vessel Interdiction Act of 2008 (DTVIA), which criminalizes the operation of a submersible or semi-submersible vessel without nationality.73 This has built on previous US legislation addressing drug trafficking on the

Ibid. Section 19 allows for enforcement provisions in relation to ‘(a) British ships in foreign waters or international waters, (b) Ships without nationality in international waters, and (c) Foreign ships in international waters’. 71 For the purposes of the Act, the term ‘relevant British possession’ means ‘(a) Any of the Channel Islands, (b) The Isle of Man, or (c) Any British overseas territory’. 72 McLaughlin (n 44) 486. 73 Under the Act, a valid claim of nationality is limited to: ‘(1) possession on board the vessel and production of documents evidencing the vessel’s nationality as provided in article 5 of the 1958 Convention on the High Seas; (2) flying [a] nation’s ensign or flag; or (3) a verbal claim of nationality or registry by the master or individual in charge of the vessel’. 69 70

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high seas, the Marijuana on the High Seas Act (MHSA)74 and the Maritime Drug Law Enforcement Act (MDLEA),75 both of which rely on the lack of nationality of a ship as a basis for the exercise of jurisdiction.76 Australia has also made provision for enforcement powers to extend to ‘vessels without nationality’ within the Maritime Powers Act of 2013.77

5. CONCLUSION LOSC provides a detailed framework for the identification of ships without nationality and clear provisions concerning the exercise by states of the freedom of the high seas. In contrast, the Convention is silent on the consequences of a ship being without nationality following a boarding. While LOSC’s silence on the extent that jurisdiction may be asserted over such ships has led to different opinions amongst academic commentators, the framework it does provide has not hampered state practice. Those states that have expressed a view, as well as national Courts seized of the issue, have consistently concluded that international law supports the position that there is no rule which prevents states from exercising enforcement jurisdiction over ships without nationality, including seizure. The exercise of jurisdiction over ships without nationality cannot form the basis of an internationally wrongful act amenable to complaint by another state. That is not to say there is a legal vacuum concerning the exercise of jurisdiction over ships without nationality. As has been said, the owners of the ship and persons on board have protections under the law, including by their own state of nationality and under international human rights law. In practice, the regulatory framework concerning interference with a ship without nationality is the national law of the interdicting state. For although a state

76 77

Marijuana on the High Seas Act, Pub. L. No. 96-350, 94 Stat. 1159 (1980). Maritime Drug Law Enforcement Act, 46 U.S.C. § 705 (2006). For an overview of the legislation see Bennett (n 40) 433. Maritime Powers Act, 2013 (Commonwealth), [21]: Vessels without nationality: (1) An authorising officer may authorise the exercise of maritime powers in relation to a vessel if: (a) the vessel is not flying the flag of a State; or (b) the officer suspects, on reasonable grounds, that the vessel: (i) has been flying the flag of more than one State; or (ii) is flying the flag of a State that it is not entitled to fly; or (iii) is not entitled to fly the flag of any State. Meaning of vessels without nationality authorisation (2) An authorisation under subsection (1) is a vessels without nationality authorisation.

74 75

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may be free to extend its national law to permit the exercise of enforcement jurisdiction during an interdiction, it must actually have done so. While there is no comprehensive survey of legislative state practice, it is likely that some states will not have taken steps to do so and so will be unable to exercise such jurisdiction lawfully. In any event, if no violation of the domestic law of the interdicting state is found during an interdiction of a ship without nationality then no further interference beyond the initial boarding is warranted.78 Given that states, including the UK, have extended their laws and enforcement jurisdiction over ships without nationality on the high seas, it is important to ensure that procedures for determination of the status of ships are sound. For improper interference with a ship that has an entitlement to fly the flag of a state will engage international responsibility.79 While LOSC does not provide a procedure for ascertaining whether a ship is without nationality, it is suggested that a ship can be properly treated as such if, during an interdiction, there is either no claim made of entitlement to fly a flag of a state, or entitlement to fly the flag of a state is denied by the state in question. During an interdiction it would be reasonable to conclude that no claim to entitlement to fly a flag is made unless: (1) the ship is flying a flag of a state recognized as a state by the interdicting state; (2) documentation is produced by the ship evidencing entitlement to fly the flag of a state in accordance with LOSC, Article 91; or (3) a claim is made to entitlement to fly a flag by the master of the ship.80 If a claim of nationality is made by any of these means, the interdicting state must make further expeditious enquiries to verify the claim, including by electronic means. If those claims are denied or not otherwise confirmed by a state, the ship can be treated as being without nationality.81

78 RG Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (Martinus Nijhoff Publishers 2004) 56. 79 LOSC, Article 110(3). See also McDorman (n 66) 554. 80 See McLaughlin (n 44) 486–487. US legislation, 46 U.S. Code § 70502 (e), provides that a ‘claim of nationality or registry under this section includes only— (1) possession on board the vessel and production of documents evidencing the vessel’s nationality as provided in article 5 of the 1958 Convention on the High Seas; (2) flying its nation’s ensign or flag; or (3) a verbal claim of nationality or registry by the master or individual in charge of the vessel.’ 81 US legislation, 46 U.S. Code § 70502 (d)(1)–(2), provides that ‘vessel without nationality’ includes— (1)(A) a vessel aboard which the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed; (1)(B) a vessel aboard which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel; and

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Maintenance of public order on the high seas requires that ships using it be subject to law, with the absence of any authority leading to unregulated chaos.82 In the absence of state sovereignty over the high seas, public order is achieved through the grant of nationality to ships and the jurisdiction this entails. While the practical application of law by some states over ships entitled to fly their flag can be of variable quality, it remains the primary framework of control on the high seas. It is this need for states to maintain order over all ships on the high seas through the application of law that provides the underpinning justification for the exercise of jurisdiction over ships without nationality. To argue otherwise, including for very limited jurisdiction over ships without nationality, risks creating a framework of impunity for such ships, capable of exploitation by those involved in illegal activities. This approach is consistent with the conclusion that ships without nationality do not enjoy the protection of a state. It is essential that states who have the capability to tackle illicit activity on the high seas by interdicting vessels without nationality on the high seas take the necessarily legislative steps to allow their enforcement agencies to assert jurisdiction when necessary. Flag states should also, as a part of their responsibilities as flag states, ensure that ships entitled to fly their flag are issued with the appropriate documentation, and that they have systems in place to confirm nationality if asked by the law enforcement authorities of another state to do so in a timely fashion.

(1)(C) a vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality. (2) Response to claim of registry.—The response of a foreign nation to a claim of registry under paragraph (1)(A) or (C) may be made by radio, telephone, or similar oral or electronic means, and is proved conclusively by certification of the Secretary of State or the Secretary’s designee. 82 Proelss (n 19) 700.

8

Tackling maritime security threats from a port state’s perspective Sophia Kopela

1. INTRODUCTION Ports have a central position in the global maritime transport system and in international trade. They are thus important for maritime security in diverse ways. Due to the high volume of cargo transported in ports, they are vulnerable to terrorist attacks but they also face many different kinds of security threats, such as cargo theft and impairment, trafficking, smuggling of banned goods, transport of dangerous cargos and others.1 Security threats and related incidents and attacks in ports can cause disruption to international trade as ports ‘are the vital starting and end points in maritime transport’.2 The supply chain with its complicated multifaceted nexus of actors and activities is also highly vulnerable to interference and easily exploited by terrorist groups.3 The challenges and inadequacies of enforcement on the high seas and the ineffectiveness of flag states have led to a strengthening of the role of port states in protecting global interests and tackling various threats related to international shipping. The port state is an important factor in implementing and enforcing international standards related to maritime security and therefore preventing and deterring security threats worldwide. Its role is thus essential in the international regulatory framework for tackling maritime security threats and has been recognised as such by the International Maritime Organization (IMO) and by states. The International Ship and Port Facility Security Code (ISPS Code) adopted by the IMO in 2002 as an amendment to the 1974 Safety

M Edgerton, A Practitioner’s Guide to Effective Maritime and Port Security (Wiley & Sons, Inc. 2013) 34–43. LS Cox, ‘The Advent and Future of International Port Security Law’ (2013) 1(1) National Security Law Journal 80. 2 N Klein, Maritime Security and the Law of the Sea (OUP 2011) 157. TA Mensah, ‘The Place of the ISPS Code in the Legal International Regime for the Security of International Shipping’ (2003) 3(1) WMU Journal of Maritime Affairs 22. 3 Cox (n 1) 80. 1

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of Life at Sea (SOLAS) Convention4 provides for a wide range of port state control measures to enhance security at sea and at ports, and to prevent unlawful acts against or related to ships. Other global initiatives, such as the World Customs Organization Framework of Standards and the US-led Container Security Initiative, also recognise and stress the important role of ports in strengthening global coordination and cooperation to tackle maritime security threats. This chapter examines and assesses the role played by port states within the international regulatory framework related to maritime security. It evaluates the port state control measures prescribed in international legal instruments adopted by the IMO and in other global collaborative initiatives, and identifies problems, challenges and inadequacies related to their implementation. The chapter further examines the scope and limits of port state jurisdiction and assesses the measures adopted by states in their ports in order to determine to what extent the international legal framework is adequate to address contemporary security threats. It finally makes some concluding remarks on how to strengthen and enhance the role of port states in tackling maritime security threats.

2.

INTERNATIONAL MEASURES AND INITIATIVES TO TACKLE SECURITY THREATS AND PORT STATES

2.1

IMO Measures: SOLAS and the ISPS Code

The IMO has adopted various instruments to tackle maritime security threats following serious incidents that have endangered the security of shipping and maritime transport. The key IMO instruments which provide a clear role for port states in tackling maritime threats but also aim at protecting the port and port facilities are SOLAS (Chapters V, XI-1 and XI-2) and the ISPS Code.5 Adopted as a reaction to the terrorist attack of 9/11, these instruments constitute important tools in the efforts of the international community to

International Convention for the Safety of Life at Sea, 1 November 1974, 1184-I UNTS 18961. 5 The IMO adopted IMO Assembly Resolution A.924(22) on the Review of measures and procedures to prevent acts of terrorism which threaten the security of passengers and crews and the safety of ships in November 2001 and convened a Diplomatic Conference in December 2002. The Conference adopted amendments to Chapter XI-2 of SOLAS and the ISPS Code in December 2002; SOLAS/CONF.5/34, Consideration and Adoption of the International Ship and Port Facility Security Code (December 2002). 4

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ensure cooperation between different actors ‘to detect and deter acts which threaten security in the maritime transport sector’.6 The aim of these measures is to mitigate risks and protect vessels, their cargo, passengers, crews, port facilities and port personnel from threats related to international terrorism and other security threats.7 While SOLAS mainly addresses issues related to the safety of navigation providing principally for standards for the construction, equipment and operation of vessels, the ISPS Code extends its scope to cover security-related threats.8 These instruments recognise the key role played by ports and acknowledge that ‘security in the port was an essential part of any meaningful regime to safeguard maritime security’.9 The ISPS Code, in particular, places port authorities at the centre of the established protective and preventive mechanisms and procedures. At the same time, recognising the complexity of the shipping and supply chain, these measures involve a multiplicity of actors and stakeholders, such as contracting governments, government agencies, local administrations, port authorities and the shipping industry, and are aimed at enhancing cooperation and coordination between them.10 In contrast to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), which regulates substantive issues (for example, criminalisation of certain activities such as the seizure of ships by force, acts of violence against persons on board vessels, etc, and the prosecution of these offences, including extradition),11 the ISPS Code and the relevant SOLAS amendments have been referred to as ‘a regulatory procedural instrument’ which focuses on preventive measures.12 This is clarified in the Preamble, which states that ‘it was also agreed that the provisions should not extend to the actual response to attacks or to any necessary clear-up activities after such an attack’.13 The framework established at the Conference convened by the IMO in 2002 (hereafter 2002 SOLAS Conference) is a combination of mandatory regulation (SOLAS Chapters V, XI-1 and XI-2 and ISPS Code Part A) and non-mandatory instruments (ISPS Code Part Β and 11 Regulations). Further non-mandatory instruments in the form of guidelines Preamble of the ISPS Code, [1]. PK Mukherjee, ‘The ISM Code and the ISPS Code: A Critical Legal Analysis of Two SOLAS Regimes’ (2007) 6(2) WMU Journal of Maritime Affairs 149. 8 Klein (n 2) 158. 9 Mensah (n 2) 25 and 28. 10 ISPS Code, Part A, [1.2]. 11 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 10 March 1988, 1678-I UNTS 29004. The SUA Convention and its protocols do not provide for a specific role for the port state. 12 Mukherjee (n 7) 150. 13 ISPS Code, Preamble, [5]. 6 7

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have subsequently been adopted by the IMO to ensure the effective implementation of SOLAS and the ISPS Code.14 The mandatory part of the ISPS Code and the SOLAS amendments contain maritime and port requirements/ standards, whereas Part B comprises recommendatory guidelines providing a framework for the implementation of the obligations entailed in Part A. The Maritime Safety Committee (MSC) has noted that many states have incorporated parts (or all) of the Part B Guidance into their legislation, making them legally binding.15 The key function of the ISPS Code is to assess risk within a ‘standardised, consistent framework’16 and through this ‘risk-management exercise’17 to determine the level of security and the necessary measures with reference to this risk. The objective of port and port facilities regulation is to monitor and control access, monitor the activities of people and cargos, and ensure the availability of security communications.18 In this way, the ISPS Code shifts the burden from flag states to port states, which are required to manage the risk posed by vessels and to develop procedures to handle terrorist attacks. As noted by Klein, this port state focus is ‘a considerable advance in the laws related to maritime security’.19 The Code applies to passenger ships and cargo ships of more than 500 gross tonnage, mobile offshore drilling units and ‘port facilities serving such ships engaged on international voyages’.20 It does not apply to warships or other state ships in non-commercial service, or to fishing vessels or vessels not engaged in international voyages and cargo ships of less than 500 gross tonnage (these being mainly yachts). Small ports that only service local transport are also excluded from its regulation. These restrictions have been found to be problematic21 and have given rise to concerns about the use of excluded vessels for security-threatening activities; fishing vessels, for example, have been used for terrorist and piracy-related purposes.22 The IMO has adopted

See IMO Guide to Maritime Security and the ISPS Code (2012 edition). MSC.1/Circ.1525, Guidance for the development of national maritime security legislation (June 2016) 6. 16 H Hesse and NL Charalambous, ‘New Security Measures for the International Shipping Community’ (2004) 3(2) WMU Journal of Maritime Affairs 125–126. 17 Klein (n 2) 159. See also Hesse and Charalambous (n 16) 125. 18 Hesse and Charalambous (n 16) 126. 19 Ibid. 20 ISPS Code, Part A, Section 3. 21 Klein (n 2) 159. 22 See JP Hogan and L Chapman, ‘International Ship and Port Facility Security (ISPS) Code – What Does It Mean for Fishing Vessel Security?’ (2005) 113 SPC Fisheries Newsletter 24. They argue that ‘[t]he main concerns relating to fishing vessels include piracy, the smuggling of people and/or illegal goods (drugs, firearms, alcohol 14 15

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non-legally binding guidelines related to vessels outside the scope of the ISPS Code,23 and states have enacted unilateral measures to protect ports and port facilities from threats related to these vessels.24 According to the ISPS Code, vessels are required to have on board a Ship Security Plan, which is issued and approved by the flag state, and a Declaration of Security. They are also required to have a Ship Security Officer and certain onboard equipment, as well as an International Ship Security Certificate, which provides information and confirmation that the ship complies with the ISPS Code requirements. It is the flag state’s responsibility to assess security threats and determine the appropriate security level for the vessel. Regulation 9 of SOLAS Chapter XI-2 provides for port state measures for the enforcement of the requirements prescribed in the ISPS Code and SOLAS. According to this Regulation, the port state can undertake the following measures: ‘inspection of the ship, delaying the ship, detention of the ship, restriction of operations including movement within the port, or expulsion of the ship from port’ and may include ‘other lesser administrative or corrective measures’.25 It is also provided that the control ‘shall be limited to verifying that there is onboard a valid International Ship Security Certificate or a valid Interim International Ship’s Security Certificate issued under the provisions of part A of the ISPS Code’.26 If the Certificate is valid, it should be accepted etc) and stowaways’. However, they point out that ‘the fishing industry would present immense logistical problems for enforcing the ISPS Code, if the Code was applied to all fishing vessels’. 23 MSC.1/Circ.1283, Non-mandatory Guidelines on security aspects of the operation of vessels which do not fall within the scope of SOLAS Chapter XI-2 and the ISPS Code (December 2008). The first part of the Guidelines includes ‘Information for Member States and other authorities with responsibility for administering non-SOLAS vessels’ and the second part ‘Information for use by owners, operators and users (operators) of non-SOLAS vessels and related facilities’. Part B of the ISPS Code [4.20] advises that contracting governments should consider establishing appropriate security measures to enhance the security of ships to which SOLAS XI-2 and Part A of this Code do not apply and ensure that any security provisions applying to such ships allow interaction with ships to which Part A of the Code applies. 24 See, for example, regarding Singapore: CZ Raymond, ‘Challenge of Improving Maritime Security: An Assessment of the Implementation of the ISPS Code and Initial Responses to Its Effectiveness’, RSIS Commentaries No. 062 (2004): ‘Small vessels that are not required to comply with the ISPS Code are also required to fill up a “Ship Self-Security Assessment Checklist” prior to entering the port waters.’ The US Department of Homeland Security introduced regulations to address small vessels not subject to the ISPS Code; Small Vessel Security Strategy and Small Vessel Security Implementation Plan available at https://​www​.dhs​.gov/​small​-vessel​-security​-strategy​ -implementation​-plan. 25 SOLAS Chapter XI-2, Regulation 9, [1.3]. 26 Ibid, [1.1].

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by port authorities unless ‘there are clear grounds for believing that the ship is not in compliance with the requirements of this chapter or Part A of the ISPS Code’.27 The inspection cannot include the examination of the Ship Security Plan as it was agreed at the 2002 SOLAS Conference that this should remain confidential.28 Furthermore, the measures need to ‘be proportionate, taking into account the guidance given in part B of the ISPS Code’.29 Exchange of information and security communications are also an important element of port state measures. The port state is entitled to require vessels to submit certain information specified in Regulation 9 Section 2 before they enter the port so as to allow the port state to consider whether the vessel is in compliance with SOLAS and the ISPS Code.30 This information relates to the security level of the ship during the previous 10 port visits and security measures that have been taken during these visits. The information cannot, however, relate to the Ship Security Plan.31 Clarity of the information required by ports and standardised forms for reporting and exchange of data are important for the shipping industry in order to facilitate compliance and to avoid undue complexity which would be caused by different standards and forms in different ports.32 At the 79th session of the MSC, the representatives of the shipping industry raised their concerns about the variety of information required by states before entry into the port and, specifically, about states requesting information beyond what was required by the SOLAS regulations.33 They argued that this prevented the vessels from ‘responding quickly to requests for security-related information before arrival’ and they stated that a standard data set, acceptable to all national authorities, is required.34 They requested the establishment of ‘the maximum security-related data’ that a ship is required to provide before arrival, and a standardised documentation in electronic format. States agreed that standardisation of information was required since the diversity of requested information was not conducive to the enhancement of mar-

Ibid. ISPS Code, Part A, [9.7]–[9.8]. The ISPS Code states that ‘the plan shall be protected from unauthorised access or disclosure’. 29 SOLAS Chapter XI-2, [1.2]. 30 SOLAS, Chapter XI-2, [9.2.1.1]–[9.2.1.6]. 31 ISPS Code, Part A, Regulation 9, [2.1.6]. 32 This was stressed in the 2002 SOLAS Conference; see Conference Resolution 3 paragraph 1(g) to ‘consider, in the context of security, relevant aspects of facilitation of maritime traffic such as, for example, port arrivals and departures, standardised forms of reporting and electronic data interchange and take action as appropriate’. 33 MSC 79/5/8, Issues arising following the introduction of the new and amended SOLAS Regulations related to security and the ISPS Code, Pre-arrival security related information required from ships, submitted by BIMCO et al. (September 2004). 34 Ibid. 27 28

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itime security.35 Nonetheless, they objected to the adoption of a provision on ‘maximum data’ as they thought that states should be able to request additional information (beyond SOLAS and ISPS) if they thought it necessary.36 This reflects the customary right of states (based on sovereignty) to regulate entry into their ports in any way they see fit, including requesting vessels to submit certain information not internationally prescribed. To promote standardisation of requested information, the MSC developed non-legally binding guidance on the submission of security-related information by a vessel before entering a port.37 The time framework, that is, how long before arrival the vessels need to provide this information, is not specified in SOLAS. Disagreements exist between states mainly due to the variety of journeys and routes involved.38 For example, some states have stressed that a suggested 24-hour timescale might be too long for voyages of short duration, while other states have expressed a preference for 48 or even 96 hours to reflect ‘their geographic location and the trading patterns of ships’.39 The MSC has recommended 24 hours as a default minimum period,40 however states have discretion to adjust this to their security and other needs and circumstances. Another tool to regulate access to the port and monitor cargos and people on board vessels is the mandatory fitting of a ship-borne Automatic Identification System (AIS), provided for in Regulation 19 of SOLAS Chapter V (as amended).41 Ports can therefore monitor and track ships and exchange data via the AIS, which must remain in operation at all times. Concerns, however, were expressed at the MSC about the publication on the internet of AIS-generated information, which endangered maritime safety and thus undermined the

35 MSC 79/23, Report of the MSC on its seventy-ninth session (December 2004), [5.23]. 36 Ibid, [5.24]. 37 MSC/Circ. 1130 on Guidance to masters, companies and duly authorised officers on the requirements relating to the submission of security-related information prior to the entry of a ship into port (December 2004). 38 MSC 79/23 (n 35) [5.24]. 39 Ibid. 40 Ibid, [5.92]. 41 SOLAS, Chapter V, Regulation 19, [2.4]: ‘All ships of 300 gross tonnage and upwards engaged on international voyages and cargo ships of 500 gross tonnage and upwards not engaged on international voyages and passenger ships irrespective of size shall be fitted with an automatic identification system (AIS)’. The application of the AIS depends on the time of the construction of the vessel.

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objective of the use of the AIS.42 The MSC condemned such conduct and urged states to discourage such action, in accordance with their national laws.43 Should the vessel refuse to submit the requested information or if the port authorities ‘have clear grounds for believing that the ship is in non-compliance’, port entry can be denied.44 When the vessel is in the port and there are clear grounds for believing that it does not comply with the ISPS requirements, the port authorities can require the rectification of the fault and can detain the vessel until the requirements are complied with.45 Despite the fact that Part B of the Code provides guidance on the meaning of ‘clear grounds’ and examples of ‘clear grounds under regulations XI-2/9.1 and XI-2/9.2’,46 in practice the interpretation of such a vague term can be subjective and based on the professional judgement of the port officer. This grants the port state broad discretion to take enforcement action.47 Broad interpretation of the meaning of ‘clear grounds’ by port authorities and the port state may result in journeys being delayed. However, this is balanced by the right of the vessel to claim compensation ‘for any loss or damage suffered’ if it has been ‘unduly detained or delayed’.48 In this way, the discretion of the port authorities can be challenged in court, but the concept of undue detention would still be interpreted in accordance with the concept of ‘clear grounds’ and related evidence based on the authorised officer’s professional judgement. The measures prescribed in the ISPS Code and SOLAS are similar to port state control measures recognised in other international instruments related to marine pollution and illegal, unreported and unregulated (IUU) fishing but, as noted by Mukherjee, Regulation 9 of SOLAS Chapter XI-2 is ‘far more specific in terms of administrative and corrective measures that can be imposed’.49 This Regulation is also careful in its approach with respect to the impact these measures may have upon international shipping and trade. It tries to strike a balance between the rights of the port state to take measures and the rights of the visiting vessels to operate and trade. The measures are to be taken progressively, from less intrusive measures to the stricter ones, with denial of 42 MSC 79/23 (n 35) [5.63]–[5.64]. See MSC 79/5/10, submitted by BIMCO et al., Freely available AIS generated ship data and the attendant security risks (September 2004). 43 Ibid, [5.99]. 44 SOLAS Chapter XI-2, Regulation 9, [2.5]. 45 Ibid, [2.4]–[2.5]. 46 ISPS Code, Part B, [4.31]–[4.32]. 47 B Soyer and R Williams, ‘Potential Legal Ramifications of the International Ship and Port Facility Security (ISPS) Code on Maritime Law’ (2005) Lloyd’s Maritime and Commercial Law Quarterly 522 and 524. 48 SOLAS Chapter XI-2, Regulation 9, [3.5]. 49 Mukherjee (n 7) 160.

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entry into port being a measure of last resort50 so as to avoid adverse impacts on trade. The Regulation also provides for the obligation to notify the flag states when measures are taken.51 While the ISPS Code provides that denial of port entry and expulsion from port can be exercised when there are clear grounds to believe that the ship poses an immediate threat to the security or safety of persons or other ships or property, the port state also has broad discretion to deny access to its ports as part of customary international law. Despite some early disagreement on the existence of a right of access of foreign vessels in the ports in customary international law, there is general agreement nowadays that the port state has the right to deny and regulate access to its ports.52 According to Article 211(3) of the United Nations Law of the Sea Convention (LOSC),53 the coastal states can ‘establish particular requirements for the prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters’. There is no reference to ‘generally accepted international rules and standards established through the

50 This approach is confirmed in SOLAS Chapter XI-2, Regulation 9, [3.3]: ‘Denial of entry into port, pursuant to paragraphs 2.4 and 2.5, or expulsion from port, pursuant to paragraphs 1.1 and 1.3 shall only be imposed where the officers duly authorised by the Contracting Government have clear grounds to believe that the ship poses an immediate threat to the security or safety of persons, or of ships or other property and there are no other appropriate means for removing that threat.’ Paragraph 3.4 also specifies that denial of entry is a measure of last resort: ‘The control measures referred to in paragraph 1.3 and the steps referred to in paragraph 2.5 shall only be imposed, pursuant to this regulation, until the non-compliance giving rise to the control measures or steps has been corrected to the satisfaction of the Contracting Government, taking into account actions proposed by the ship or the Administration, if any.’ 51 SOLAS Chapter XI-2, Regulation 9, [3.5]. Concerns were raised in the MSC by delegates about the failure of many states to notify the flag states when measures were taken, MSC 79/23, (n 35) [5.51]. A circular was adopted to address this issue (MSC/ Circ.1133 Reminder of the obligation to notify flag states when exercising control and compliance measures (December 2004)). See also the discussion in MSC 81; MSC 81/25, Report of the MSC on its eighty-first session (2006), [5.48]–[5.50]. 52 See L de La Fayette, ‘Access to Ports in International Law’ (1996) 11 International Journal of Marine and Coastal Law 1; AV Lowe, ‘The Right of Entry into Maritime Ports in International Law’ (1976–1977) 14 San Diego Law Review 597; GC Kasoulides, Port State Control and Jurisdiction: Evolution of the Port State Regime (Martinus Nijhoff 1993) 2–22; V Tasikas, ‘The Regime of Maritime Port Access: A Relook at Contemporary International and US Law’ (2007) 5 Lloyds Maritime Law Journal 44; RR Churchill and AV Lowe, The Law of the Sea (Manchester University Press 1999) 62; H Ringbom, EU Maritime Safety Policy and International Law (Martinus Nijhoff 2008) 207–208. 53 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3.

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competent international organisation’, as can be found in other paragraphs of this article (for example, paragraph 5 regarding the exclusive economic zone), and therefore these measures can go beyond internationally prescribed standards.54 The LOSC requires states to give ‘due publicity to such requirements’ and to communicate them to the IMO. Therefore, states have the right to establish (nationally determined) entry criteria55 and to deny access to their ports for vessels of states not complying with these requirements – subject to general principles such as non-discrimination,56 good faith and abuse of right (Article 300 LOSC),57 and treaty-based obligations especially trade-related.58 To the extent, therefore, that the port state adopts reasonable requirements for entry and applies the same measures to all visiting vessels, its actions would be in accordance with international law. Guidance in Part B of the ISPS Code also confirms that the port state can take further measures consistent with international law, should it consider that the IMO measures are not adequate to respond effectively to a maritime security threat.59 Despite this broad discretionary right, port states would need to consider carefully the economic consequences of disrupting trade, should they decide to ban certain vessels from their ports. In contrast to other IMO instruments, the ISPS Code and Chapter XI-2 of SOLAS 74 provide regulations not only for vessels, but also for port facilities.60 The port authorities are required to design Port Facility Security GL Rose and B Tsamenyi, ‘Universalising Jurisdiction over Marine Living Resources Crime: A Report for WWF International’ (2013) 68 available at http://​ro​ .uow​.edu​.au/​cgi/​viewcontent​.cgi​?article​=​2261​&​context​=​lhapapers: ‘as the port state can set these conditions as a manifestation of its sovereignty, there is no requirement that the conditions themselves be limited to reflect a specific international legal norm already set in place by international agreement’. 55 Article 211(3) LOSC permits the port state to prescribe requirements regarding construction, design, equipment and manning (CDEM), but since the right to regulate access to its ports is based on state sovereignty, entry requirements are not limited to these types of requirements; EJ Molenaar, ‘Port State Jurisdiction’ (2009) Max Planck Encyclopaedia of Public International Law, [9]–[10], [29]–[30]. 56 See Churchill and Lowe (n 52) 63: ‘port closures or conditions of access which are patently unreasonable or discriminatory might be held to amount to an abus de droit for which the coastal state might be internationally responsible’. See also Articles 24(1)(b), 25(3), 119(3) and 227 LOSC. 57 See Ringbom (n 52) 225–228; Tasikas (n 52) 44. 58 See Ringbom (n 52) 231–234. 59 ISPS Code, Part B, [4.34]. ‘Thus, regulation XI-2/9 does not prejudice the Contracting Government from taking measures having a basis in, and consistent with, international law, to ensure the safety or security of persons, ships, port facilities and other property in cases where the ship, although in compliance with chapter XI-2 and part A of this Code, is still considered to present a security risk.’ 60 Soyer and Williams (n 47) 518. 54

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Plans following a Port Facility Security Assessment, to appoint a Port Facility Security Officer and to determine the level of security for the port.61 Concerns were raised during the negotiations about the extension of regulation to ports and port facilities which are subject to the sovereignty of the state.62 It was, however, agreed that these provisions would relate only to the ‘ship/port interface’ and the IMO would work with the International Labour Organization (ILO) to provide a protective framework for the security of port areas.63 Commentators have, however, argued that the restriction of the Regulation to the ship/port interface, and not to port facilities in general, weakens the effectiveness of the protective framework.64 States have complemented the ISPS Code with national legislation concerning security at ports beyond the port/vessel interface.65 2.2

Implementation of IMO Measures and Enforcement in Ports

The effectiveness of the ISPS Code depends on its implementation in practice. Implementation relies on flag states ensuring that the vessels comply with the SOLAS and ISPS requirements and on port states enforcing these requirements. The IMO has also acknowledged that economic pressure, financial incentives and market forces will prompt states and stakeholders to comply in order to ensure that they do not miss out on trade opportunities.66 It has been suggested that there has generally been smooth implementation of the ISPS Code concerning vessels but that it has been slower with respect to ports and port facilities.67 Concerns have been raised regarding the capacity of developing states (and flags of convenience) to comply with these complex regulations and the need for technical expertise, equipment and staff.68 Some

SOLAS Chapter XI-2, Regulation 10, Requirements for port facilities; ISPS Code, Part A, [4.3]. 62 Mensah (n 2) 28. 63 ISPS Code, Preamble, [5]. 64 Cox (n 1) 83 and 106. Cox refers to the following ‘built-in limitations’ of the ISPS: lacking critical elements such as incident response, enforcement, application beyond the limited scope of the ship to port interface. F McNaught, ‘Effectiveness of the ISPS Code in Addressing the Maritime Security Threat’ (2005) Geddes Papers 95. 65 See, for example, Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on enhancing port security, [2005] OJ L 310. 66 See IMO website at http://​www​.imo​.org/​en/​OurWork/​Security/​Guide​_to​ _Maritime​_Security/​Pages/​FAQ​.aspx: ‘It is to be anticipated that market forces and economic factors will drive compliance.’ 67 Klein (n 2) 162. See also comments in MSC 79/23 (n 35) [5.25]. 68 Klein (n 2) 162. Cox (n 1) 85. 61

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states lack the resources or the expertise to enforce the ISPS standards.69 To tackle problems related to capacity, the IMO, through its Integrated Technical Cooperation Programme, has organised seminars and workshops to enhance capacity building and provide technical, administrative, legal and other support to contracting parties for the implementation of the Code.70 Following a suggestion by the US and Japan, the MSC developed a self-assessment questionnaire as a means of assisting states in implementing and complying with the requirements of SOLAS and the ISPS Code.71 The IMO Member State Audit Scheme, which recently became mandatory,72 can also promote effective implementation and compliance with these measures. The scheme can identify specific needs and problems related to implementation and assist the IMO to provide more targeted capacity-building activities.73 The audit can also contribute to the decision-making process at the MSC and improve regulatory measures. States themselves will be able to tackle specific problems and respond effectively to areas in which there is a need for improvement. The US has also been proactive in unilaterally assessing states’ performance with respect to implementation and compliance with these instruments. The US Coast Guard’s International Port Security Program is an initiative that monitors and assesses compliance by port states.74 In this framework, the US Coast Guard issues a Port Security Advisory, which includes information on substandard port facilities that do not comply with the ISPS Code, as well as a list of states whose compliance with the ISPS Code has been found lacking.75 Vessels which visit, or come from, substandard ports and are bound for US ports are subjected to extra security measures (including conditions and McNaught (n 64) 93. This is mentioned in Conference Resolution 5, Promotion of Technical Cooperation and Assistance, SOLAS/CONF.5.34, Annex 2, 4. See also IMO, Integrated Technical Cooperation Programme (ITCP) available at http://​www​.imo​.org/​ en/​OurWork/​TechnicalCooperation/​ITCP/​Pages/​Default​.aspx. 71 MSC/Circ.1193 on Guidance on voluntary self-assessment by SOLAS contracting governments and by port facilities (May 2006); see also MSC 81/25 (n 51) [5.111]. 72 Amendments to SOLAS, Chapters II-1 and II-2 and the new SOLAS Chapter XIII entered into force on 1 January 2016; MSC 93/22, Report of the MSC in its ninety-third session (May 2014), [3.29]–[3.33]. 73 Available at http://​www​.imo​.org/​en/​OurWork/​MSAS/​Pages/​AuditScheme​.aspx. 74 Established in 2004 as part of the Maritime Transportation Security Act (see infra n 102), the IPS Program relies on the dispatch of US officers to other states around the world to ascertain compliance with IMO measures and standards for ports that are used by US-bound vessels. See EH Lundquist, ‘International Port Security Program: Coast Guard’s Watchful Eye Monitors Security Problems Overseas’ (2011) Coast Guard Outlook 137. 75 46 U.S.C. § 70110(b) (2006). See Cox (n 1) 89. 69 70

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denial of entry) which are specified in the Port Security Advisory. The objective of this initiative, which has a clear extraterritorial scope, is to promote compliance with international regulation and to ensure that no gaps in the IMO measures create a security risk for vessels bound for the US. McNaught has also raised concerns regarding ‘the differing risk profiles and standards applied between nations’.76 This relates to the discretion of each contracting government to set appropriate security measures for ships and ports. The ISPS Code provides mainly for procedural requirements that port authorities and vessels should follow, while at the same time allowing them to determine the content of the relevant standards, for example access control, perimeter control, guards, electronic surveillance.77 The IMO has adopted various guidelines for the implementation of SOLAS Chapter XI-2 and the ISPS Code to facilitate application by states.78 Gaps in implementation have been recognised by the MSC and IMO member states. A key reason recognised by the MSC is the ‘lack of legal and policy instruments required to achieve compliance with the ISPS Code and to resolve jurisdictional issues between government agencies’.79 The MSC has stressed the need for harmonisation in the measures and requirements adopted by states. At its 96th session in 2016, the MSC decided to adopt Guidance for the development of national maritime security legislation in order to help contracting governments implement SOLAS (Chapter XI-2) and the ISPS Code.80 The Guidance systematises the existing regulations and guidelines in order to help states develop a practical institutional framework with clear functions and duties for all relevant authorities, and clarifies the enforcement measures port authorities can take in cases of violation. Despite concerns raised by some states during the negotiations about mixing mandatory and recommendatory elements of the ISPS Code,81 the clarification of the content of the measures and requirements and their harmonisation will enhance their practical application and help the shipping industry (and other companies) to comply with the appropriate legislation.

McNaught (n 64) 93. R Herbert-Burns, S Bateman and P Lehr (eds), Lloyd’s MIU Handbook of Maritime Security (CRC Press 2008) 6. 78 See, for example, MSC/Circ.1111 Guidance relating to the implementation of SOLAS Chapter XI-2 and the ISPS Code (June 2004). 79 MSC.1/Circ.1525, Guidance for the development of national maritime security legislation (June 2016), 4. 80 Ibid. See also MSC 96/25, Report of the Maritime Safety Committee on its 96th Session (May 2016), [4.19]. 81 MSC 96/25 (n 80) [4.2.2]. 76 77

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The discrepancies in the implementation and enforcement of SOLAS and ISPS measures have also been dealt with by the conclusion of regional port Memoranda of Understanding (MOUs). The objectives of these MOUs are to enhance coordination and harmonisation of the measures adopted by the ports in a region. Practice has demonstrated that these agreements have been instrumental in ensuring application of the measures, avoiding non-compliance and maintaining a level playing field among ports. They have also enhanced information sharing and cooperation, which are vital for tackling security threats. Certain regions have been more active in their security-related inspections and compliance with IMO measures.82 Despite these coordination mechanisms, various challenges remain, such as discrepancies in inspection rates and in the quality of inspections between ports and among MOUs. Port states’ control inspections relate mainly to safety measures and to a lesser extent to security measures.83 The most frequently found security-related deficiencies following inspections in the Paris MOU area concern access control to the ship, ship security alert and security-related defects, but no detention has been ordered for these offences.84 It is finally important that states comply with their human rights obligations when they take measures to tackle security-related threats as human security, including human rights, is an important element of maritime security. The port state plays a crucial role in terms of ensuring the compatibility of the implementation and enforcement of ISPS measures with human rights instruments, especially with respect to the treatment and rights of foreign seafarers. The Preamble of the ISPS Code specifically refers to this issue,85 and Resolution 11 J Kraska and P Pedrozo, International Maritime Security Law (Martinus Nijhoff 2013) 423–429. 83 See Inspection results deficiencies, Paris MOU on Port State Control, ISPS (data since 2015) available at https://​www​.parismou​.org/​inspection​-search/​inspection​-results​ -deficiencies. Valuable information and data are compiled and published by the US Coast Guard. According to these data, the safety-related inspections are more numerous than security-related inspections, but not by much. See US Coast Guard Port State Control Annual Reports for information on inspection and enforcement action taken, available at https://​www​.dco​.uscg​.mil/​Our​-Organization/​Assistant​-Commandant​-for​ -Prevention​-Policy​-CG​-5P/​Inspections​-Compliance​-CG​-5PC​-/​Commercial​-Vessel​ -Compliance/​Foreign​-Offshore​-Compliance​-Division/​PSC1/​. 84 Ibid. 85 ISPS Code, Preamble, [11]: ‘Recognizing that the Convention on the Facilitation of Maritime Traffic, 1965, as amended, provides that foreign crew members shall be allowed ashore by the public authorities while the ship on which they arrive is in port, provided that the formalities on arrival of the ship have been fulfilled and the public authorities have no reason to refuse permission to come ashore for reasons of public health, public safety or public order, Contracting Governments when approving ship and port facility security plans should pay due cognisance to the fact that ship’s person82

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adopted at the 2002 SOLAS Conference on ‘Human-element-related aspects and shore leave for seafarers’ (though non-legally binding) refers to existing instruments including human rights and to the IMO Facilitation Convention, which establishes a general right of foreign seafarers to enjoy shore leave in foreign ports.86 It has been suggested that some port states ‘have blatantly disregarded this humanitarian admonition created for the benefit of seafarers’.87 Concerns were raised during the drafting of the ISPS Code about requirements on identification and background checks of seafarers.88 It was decided that this would be resolved by cooperation between the IMO and the ILO.89 This led to the conclusion of the ILO Seafarers’ Identity Document Convention, which provides for a uniform and global document for the identification of seafarers.90 A co-developed/drafted IMO–ILO Code of Practice91 was also adopted in 2003, which aims at clarifying the roles and duties of all actors involved (governments and port authorities, employers and workers). 2.3

World Customs Organization Initiatives

As mentioned above, a key issue with respect to maritime security is tackling maritime threats in various stages of the maritime supply chain. The port state plays an important role in this respect as the place of loading/unloading and shipment of goods, but also as the place where vessels can be inspected and potential interferences with the supply chain can be detected. Acknowledging the need to tackle the problem of movements of closed cargo transport units, the IMO adopted Resolution 9 at the 2002 SOLAS Conference in order to enhance cooperation with the World Customs Organization (WCO) and to urge it to consider this problem.92 The WCO has been active in establishing various mechanisms and tools in this respect. The key tool is the SAFE Framework of

nel live and work on the vessel and need shore leave and access to shore based seafarer welfare facilities, including medical care.’ 86 Conference Resolution 11 on ‘Human-element-related aspects and shore leave for seafarers’, SOLAS/CONF.5/34, Annex 2, 16. 87 Mukherjee (n 7) 161. 88 Mensah (n 2) 28. 89 Conference Resolution No. 8, Enhancement of security in cooperation with the International Labour Organization, SOLAS/CONF.5/34 Annex 2, 10. 90 Seafarers’ Identity Documents Convention (Revised), 2003 (No. 185) Convention revising the Seafarers’ Identity Documents Convention, 1958. 91 Security in ports, ILO and IMO Code of Practice (International Labour Office, International Maritime Organization 2004). 92 Conference Resolution No. 9, Enhancement of security in cooperation with the WCO, SOLAS/CONF.5/34 (December 2002), Annex 2, 13.

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Standards to secure and facilitate global trade, adopted in 2005.93 Its aim is to ‘act as a deterrent to international terrorism, secure revenue collections and promote trade facilitation worldwide’94 and to encourage states to use common standards in their security policies and legislation with respect to cargo and supply chain. The framework, which is not legally binding, provides for common requirements concerning information on cargos and relies on electronic documentation and technology (such as X-rays) for inspections in order to avoid delays, reduce costs and offset problems related to physical inspection of containers. Klein argues that despite its limitations (for example, accuracy of documentation) ‘the processes proposed within the WCO Framework of Standards are the most realistic given the effort to balance maritime security measures with objectives to facilitate international trade’.95 Various other tools have also been adopted, such as the Customs-Business Partnership and the Authorised Economic Operators programmes, and guidelines have been issued to facilitate security-related inspections and to tackle threats to supply chain security. Emphasis has also been placed upon exchange of information and cooperation, such as mutual recognition of control and of authorised economic operators. With respect to the ports, the Framework of Standards requires cooperation between customs and port security authorities and ‘alignment between AEO [authorised economic operators] programmes and the ISPS Code with regards to areas such as the initial security assessment procedure, exchange of available and appropriate information and where possible alignment of compliance controls and follow-up activities’.96 It refers specifically to the ISPS Code and adds that ‘the customs administration along the supply chain should agree to use an electronic messaging system to exchange customs data, control results and arrival notifications, in particular for high-risk consignments’.97 These tools should thus be seen as complementary to the SOLAS and ISPS regulations with respect to port state measures and actions.

WCO Framework of Standards to secure and facilitate global trade (2018 edition) available at http://​www​.wcoomd​.org/​en/​topics/​facilitation/​instrument​-and​ -tools/​frameworks​-of​-standards/​safe​_package​.aspx. 94 Ibid. 95 Klein (n 2) 167–168. 96 WCO SAFE Framework of Standards (n 93) [2.1.3], 30. 97 Ibid, 8. 93

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3.

UNILATERAL PORT STATE MEASURES AND INITIATIVES TO TACKLE MARITIME SECURITY THREATS WITH A FOCUS ON THE UNITED STATES

Certain states have adopted unilateral measures and other initiatives as a reaction to terrorist attacks and security threats. Their aim is to address gaps in the international regulatory framework or to impose stricter requirements. For example, SOLAS and the ISPS Code do not address the risk posed by containers as well as the complex and easily interfered-with supply chain.98 These unilateral measures have been highly influential and have prompted further developments at the international level. This is due to the financial power of these states, which allows them to trigger change in their trading partners. The cooperation of other states with these unilaterally prescribed measures has given these initiatives a global scope of application. The port state plays a key role in these initiatives as it provides a clear jurisdictional regime based on the territorial principle for the enforcement of adopted measures and requirements. The measures adopted by the US following 9/11 have been described as signalling ‘a truly innovative turn’ and offering a ‘vigorous approach’ in international port security legislation.99 Other states, such as Australia100 and the EU,101 have also enacted legislation on maritime security, including port measures which are in some instances stricter than international standards. This section examines some of the measures adopted by the US as an example of unilateral regulation and assesses them in the light of international law, with a focus on port state jurisdiction. The key US legislation, the Maritime Transportation Security Act,102 adopted almost simultaneously with the ISPS Code, aims to allow the US authorities to decide on the acceptability of vessels and cargos based on McNaught (n 64) 95. Cox (n 1) 86. 100 See Maritime Transport and Offshore Facilities Security Act 2003, No. 131, 2003 and Maritime Transport and Offshore Facilities Security Regulations 2003, Statutory Rules No. 366, 2003. 101 Regulation (EC) No. 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security, [2004] OJ L 129; Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on enhancing port security, [2005] OJ L 310. As noted by the EU Commission: ‘This framework, which goes beyond international obligations, is designed to ensure the best level of preventive security possible for maritime transport, whilst ensuring that the ability to promote and pursue world trade can continue’, available at https://​ec​.europa​ .eu/​transport/​modes/​maritime/​security​_en. 102 Maritime Transportation Security Act, 116 Stat. 2064, Public Law 107-295. 98 99

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information provided long before the vessel arrives at port and by inspections outside the US. US Customs Regulations require 24 hours’ advance notice before the loading of cargos on vessels bound for US ports.103 This requires a full description of the cargo, including the seal number for each container. The use of particular types of seals is also prescribed. This provides the US Customs and Border Protection Bureau with the opportunity to analyse and decide on the acceptability of the cargo. The US also requires a 96-hour notice prior to arrival at US ports, including crew and passenger lists. These measures go beyond the IMO regulations but, as mentioned above, states can enact national entry requirements in order to regulate entry into their ports on the basis of customary international law. The Container Security Initiative (CSI), the most important unilateral initiative, was enacted in 2002 with a view to generating information concerning containers bound for US ports.104 The CSI requires the presence of US Customs Officers in ports outside the US to inspect containers in vessels bound for a US port. It is based on pre-screening high-risk containers using advanced technology, thus ensuring that this will not impact trade or increase costs. This initiative reflects the complexity of the maritime transport chain and the involvement of various actors who may pose risks to the security and safety of the products, namely ‘manufacturers, exporters, importers, carriers, customs and port officials’.105 Despite its unilateral enactment, the CSI is based on bilateral agreements with port states which deal with large volumes of cargo headed for the US. The CSI allows the US to expand its border control while ensuring the continuation of transport and trade flow towards its ports. It also relies on a close collaboration between CSI partners and on exchanging and sharing information related to risk management. The trading partners are keen to cooperate so as not to prejudice their trading relationships with the US. The CSI partners apply national laws related to the investigation/ inspection, but they can rely on information or concerns raised by US officials. Although these agreements are on a reciprocal basis and allow contracting parties to perform similar inspection activities in US ports, it has been rec-

103 Presentation of Vessel Cargo Declaration to Customs before Cargo Is Laden Aboard Vessel at Foreign Port for Transport to the United States, 67 Fed. Reg. 66,318–319, 66,331–332 (31 October 2002) (codified at 19 CFR paragraph 4.7(b) (2006)). 104 See information at US Customs and Border Protection website available at https://​www​.cbp​.gov/​border​-security/​ports​-entry/​cargo​-security/​csi/​csi​-brief. 105 WJ Keefer, ‘Container Port Security: A Layered Defense Strategy to Protect the Homeland and the International Supply Chain’ (2007) 30(1) Campbell Law Review 143. Also, J Romero, ‘Prevention of Maritime Terrorism: The Container Security Initiative’ (2003) 4(2) Chicago Journal of International Law 597.

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ognised that the key beneficiary of these agreements is the US.106 As pointed out by Klein, ‘the US dominance in instituting the CSI tends to undermine the collective nature of the response’.107 While in other areas of international regulation (for example, IUU fishing and marine pollution) states have sought to expand their jurisdiction extraterritorially by either denying entry on the basis of unilaterally established requirements or by taking enforcement action for violations of these requirements when the vessel is in port,108 these options may not be appropriate for maritime security. The first option would lead to a decrease in the number of vessels visiting US ports, with consequences for trade (import/export) and transportation of goods, while the second would not tackle the risk posed by a potentially dangerous vessel for the port itself. CSI depends on bilateral agreements with other states which are willing to ‘screen’/investigate the vessels and cargos heading for the US. This extraterritorial reach of US maritime security laws and requirements has raised concerns about infringements on the sovereignty of other states,109 which, as has been argued, would not have been tolerated before 9/11.110 However, since the initiative relies on state consent, as expressed in bilateral agreements and reciprocity, it is in accordance with international law and based on the territorial jurisdiction of the port state where the investigation/screening takes place. The US has also relied on partnerships with the industry to provide incentives as a means of ensuring compliance with its measures. The Customs Trade Partnership Against Terrorism (C-TPAT) is a cooperative/partnership-based voluntary scheme which aims to enhance the security of the supply chain by offering concessions and incentives to various stakeholders and actors.111 The partners involved (for example, carriers, operators, port authorities, manufacturers) agree voluntarily to conduct self-assessments based on recommended guidelines in exchange for the Bureau of Customs and Border Protection undertaking fewer security checks. This facilitates trade and reduces the costs and time for importers and other partners.

Klein (n 2) 167. Ibid. 108 See S Kopela, ‘Port-State Jurisdiction, Extraterritoriality, and the Protection of Global Commons’ (2016) 47(2) Ocean Development & International Law 95. 109 Romero (n 105) 601–602. 110 RC Beckman, ‘International Responses to Combat Maritime Terrorism’ in VV Ramraj, M Hor and K Roach (eds), Global Anti-Terrorism Law and Policy (CUP 2005) 255. 111 Available at https://​www​.cbp​.gov/​border​-security/​ports​-entry/​cargo​-security/​ ctpat. 106 107

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The US-led Proliferation Security Initiative (PSI) relates mainly to interdictions of vessels suspected of being involved in carrying weapons of mass destruction (WMD) on the high seas on the basis of bilateral agreements.112 However, port states also play a role in this initiative with respect to the enforcement of requirements and conditions on vessels entering or leaving ports. These measures include inspection of vessels ‘reasonably suspected’ of carrying cargos of concern and the seizure of such cargos.113 The PSI relies on agreements between states, and therefore port states will need to ensure that they have the appropriate laws in place in order to be able to enforce the prescribed requirements. This needs to be in accordance with jurisdictional principles recognised in international law.114 The port state cannot therefore enforce its laws against vessels suspected of trafficking WMD and relevant materials for activities that take place extraterritorially, such as on the high seas (for example, transhipments). The port state can only exercise jurisdiction for activities (including possession) of WMD that take place in the port. This is a key element of the territoriality principle. The protective jurisdiction principle, developed to protect vital interests of the state, such as its sovereignty and political independence,115 could potentially provide a legal basis for the exercise of extraterritorial jurisdiction in these cases. This would allow the port state to ‘step into the gap’ created by the lack of flag state jurisdiction and enforcement, and to address the problem more effectively.116

4. CONCLUSION Port state control and jurisdiction are important for the effective and balanced regulation of maritime security-related issues, especially for the enforcement of international instruments such as SOLAS and the ISPS Code. The port state also plays a significant role in balancing, on one hand, the need to tackle security threats and, on the other, the need to ensure that international trade and the maritime transport of goods are not overtly hampered. Costs and efficiency are thus significant factors in the international regulatory measures.

112 Proliferation Security Initiative Statement of Interdiction Principles, available at https://​www​.psi​-online​.info/​psi​-info​-en/​botschaft/​-/​2077920. 113 Ibid, [4(f)]. 114 Klein (n 2) 199. 115 C Ryngaert, Jurisdiction in International Law (2nd edn, OUP 2015) 114: ‘some states may construe sovereignty and political independence rather broadly: they may not only include in the protective principle espionage, terrorism, or counterfeiting, but also drug-trafficking, the latter at first sight being difficult to square with the protection of state interests’. 116 Klein (n 2) 200.

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The success of the measures relies on their effective implementation and compliance. Problems related to implementation concern lack of expertise and technology, especially for developing states, but also inadequate transposition of the IMO measures into national law. A clear legal framework can provide the port authorities with the appropriate mandate and jurisdiction to conduct inspections and take enforcement measures. Ambiguities in the IMO measures, the division of the ISPS Code to a mandatory and a non-mandatory part and the multiplicity of non-mandatory guidelines create difficulties for many port states. The recently adopted Guidance for the development of national maritime security legislation could assist states in establishing an integrated legal framework with clear mandates of the authorities involved, and clear procedural and substantive laws related to enforcement. Transfer of technology and capacity building by the IMO and other states are also crucial for the effective implementation of the IMO measures, and need to be enhanced. State compliance with international security regulation is of fundamental importance not only for tackling maritime security threats worldwide, but also for ensuring a level playing field for ports and shipping companies. The shipping industry relies on clear and harmonised port state measures and requirements to guarantee compliance at a global scale and minimise its costs. Various tools have been used to help states improve their compliance, for example, voluntary self-assessment questionnaires. The IMO Member State Audit Scheme could contribute significantly to the effective implementation of IMO measures by identifying the challenges and problems faced by states and responding to them in a targeted way. Port states play also a key role in unilateral state-led initiatives to tackle security-related threats. Port state jurisdiction has been increasingly used to tackle global concerns and promote global values. Its reliance on territorial jurisdiction, the practicality of enforcement based on the voluntary presence of the vessel in the port vis-à-vis the inherent problems of flag state jurisdiction and enforcement on the high seas, have brought port state jurisdiction to the forefront. The territoriality principle allows states to take measures to tackle security threats in ports. However, as noted by Klein, port state powers to tackle maritime security threats have not been expanded in the same ways as has happened with respect to protection of the marine environment.117 This may be due to the fact that maritime security measures require a preventive (rather than reactive) approach and therefore states have relied on their customary right to regulate entry to their ports and deny entry to dangerous vessels. Unilateral initiatives and measures have also relied on cooperation among states and bilateral agreements for the exchange and sharing of security-related Ibid, 169.

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information. Further coordination between unilateral initiatives and regulatory measures by international organisations such as the IMO and the WCO would provide an integrated and more effective legal framework for tackling maritime security by port states.

9

Towards the Code of Conduct for the South China Sea: maritime security dimensions Keyuan Zou

1. INTRODUCTION Maritime security is one of the most important issues in the world today and has both traditional and non-traditional dimensions. Non-traditional maritime security embraces a broad range of issues, including the safety of navigation, crackdown on transnational crimes, including sea piracy and maritime terrorism, maritime environmental security, and search and rescue at sea. Maritime security is of vital importance to the South China Sea and, while the concept of maritime security is applicable to all seas around the world, the South China Sea raises particular issues in this regard. The South China Sea is a semi-enclosed sea hosting numerous islets and reefs, as well as abundant living and non-living marine resources, and is a critical sea route for global trade and communications. More than 10,000 vessels of greater than 10,000 dwt traverse the South China Sea annually. The South China Sea is also known as a flash point for territorial and maritime disputes between/among multiple claimants. The complicated political landscape of the South China Sea adds considerable complexity to the potential for conflict between a considerable number of states with different national interests. Security issues relating to the South China Sea are therefore always a focus of international concern. Among the many territorial and maritime disputes in the South China Sea, that concerning the Spratly Islands is the most complicated. Five countries and six parties (Brunei, China, Malaysia, the Philippines, Chinese Taipei and Vietnam) have made claims, in whole or in part, to this group of islets and each (except Brunei) has a physical presence on the maritime features which they occupy.

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The general legal framework which governs maritime security is rooted in the 1982 United Nations Convention on the Law of the Sea (LOSC),1 which is commonly known as the constitution for the oceans and which incorporated almost all previously existing conventional and customary rules and norms concerning the law of the sea. Pursuant to the provisions of the LOSC, a coastal state has the right to exercise and/or establish its jurisdiction over a range of maritime zones: internal waters landward of the baselines which are used to measure the extent of the territorial sea and other maritime zones, a territorial sea of up to 12 nautical miles (nm), an exclusive economic zone (EEZ) of up to 200 nm, and a continental shelf of 200 nm or more, in accordance with the complex formula for determining the outer limit set out in the Convention. Since the entry into force of the LOSC in 1994, the legal situation regarding maritime zones in the South China Sea has become more complicated. As we know, all the coastal states adjacent to the South China Sea are parties to the LOSC and so are entitled to exercise sovereign rights within their continental shelves and EEZ seawards from their baselines for at least 200 nm. This has resulted in many more potentially overlapping maritime boundaries and has exacerbated the already complicated security situation in the South China Sea. It should be recalled that while China and Vietnam have resolved their maritime boundary dispute in the Gulf of Tonkin,2 they still have ongoing disputes concerning the delimitation of their maritime boundaries beyond the Gulf of Tonkin and in the South China Sea. This maritime boundary delimitation, which potentially involves territorial disputes over islands, will be more difficult to undertake. This is, of course, precisely the problem faced in the South China Sea, where various features comprising the Spratly Islands are claimed by six different parties, including five different countries. While it is not possible to cover all the aspects of maritime security in the South China Sea,3 this chapter focuses on three main topics that are currently considered to be the most pressing and most important and ongoing, these being the safety of navigation, piracy at sea, and regional arrangements towards the Code of Conduct in the South China Sea.

21 ILM (1982) 1261. The Convention was opened for signature on 10 December 1982 and came into effect on 16 November 1994. 2 For details, see K Zou, ‘Sino-Vietnamese Agreement on the Maritime Boundary Delimitation in the Gulf of Tonkin’ (2005) 36 Ocean Development & International Law 13. 3 For details, see S Wu and K Zou (eds), Maritime Security in the South China Sea: Regional Implications and International Cooperation (Ashgate Publishing 2009). 1

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SAFETY OF NAVIGATION

The most pressing non-traditional security issue in the South China Sea concerns the safety of navigation. The number of vessels sailing through the South China Sea has increased to about 50,000 per annum, and the Malacca Strait, which is directly linked to the South China Sea, is overcrowded with vessels in its narrow waterways, thus making it more difficult for littoral states to ensure navigational safety. Freedom of navigation has been accepted as a principle of international law for centuries. At present, the navigational rights of vessels are mainly governed by the LOSC. The role of international law in the resolution of security issues and promotion of security cooperation is indispensable. As rightly observed by Bateman, all regimes for good order at sea are based on the framework provided by the LOSC.4 In addition, he lists a series of legal instruments which are applicable to the South China Sea and its security, including the 1974 Safety of Life at Sea (SOLAS) Convention; the 1979 Convention on Maritime Search and Rescue (SAR Convention); the 1973 International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78); the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Navigation (SUA Convention); and the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf.5 While the LOSC guarantees to all states the exercise of the freedom of navigation on the high seas, the safety of navigation largely depends on the implementation of relevant international treaties by coastal states. As China and the Association of Southeast Asian Nations (ASEAN) countries have reiterated on many occasions, they have pledged to resolve the disputes over the South China Sea in a peaceful manner and in accordance with contemporary international law, including the 1982 LOSC. They have also pledged to safeguard the freedom of navigation in the South China Sea. However, safety of navigation still remains an issue in the South China Sea. In addition to territorial and maritime disputes, military demonstrations and drills led by the United States (US) constitute grave threats to the safety of navigation in the South China Sea. China and the US have had an ongoing dispute regarding military activities in the EEZ since the EP3 incident in April 2001.6 The Impeccable incident in 4 See S Bateman, ‘Good Order at Sea in the South China Sea’ in Wu and Zou (eds), ibid, 18–23. 5 Ibid. 6 On 1 April 2001, while a US EP-3E Aries II aircraft was conducting espionage activities near the Chinese coast in the South China Sea, it was intercepted by two Chinese F-8 fighter jets and then collided with one of the jets. The damaged Chinese

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the South China Sea in 2009 triggered a new round of discussion concerning military activities in the EEZs of coastal states. China opposes such activities and this opposition has been supported by other developing countries. Some states such as the US invoke Article 58(1) of the LOSC to justify their military activities in the EEZs of other countries. The provision reads: In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

Freedoms on the high seas provided for in Article 87 are thus applicable to the EEZ as long as they are not contrary to other provisions of the LOSC. According to maritime powers such as the US, the wording ‘freedoms … associated with the operation of ships, aircraft’ implies the legality of naval manoeuvres in a foreign EEZ.7 It is argued that since the LOSC focuses on the rights of navigation and overflight, and does not expressly mention the right of military activities, maritime superpowers must defend and enforce such rights

jet crashed into the water and the pilot died. The damaged American aircraft made an emergency landing in China’s Hainan Island at Lingshui and all the crew members were safe. The incident immediately became a diplomatic issue between China and the US. China accused the US of encroaching on China’s territorial sovereignty and of violating international law as well as relevant Chinese laws, and demanded an apology and compensation from the American side. The US responded that the reconnaissance aircraft operated outside China’s territorial waters and that the aircraft landed in distress. For that reason, the US refused to render an apology and instead demanded that China immediately return the American crew and the aircraft. After several rounds of diplomatic contacts, the US finally sent a letter to China on 11 April 2001, expressing its sincere regret over the Chinese missing pilot and aircraft and used the word ‘sorry’ for their loss. The letter also used the word ‘sorry’ for the American aircraft having entered China’s airspace and landing without verbal clearance. On the next day, China allowed all 24 crew members to leave China. However, the American damaged spy aircraft did not leave China until 3 July 2001 after it had been dismantled and packed. The Chinese side asked for 1 million US dollars for the costs relating to the aircraft but the Americans only offered the amount of 34,567 US dollars, which was refused by the Chinese. For related information, see ‘State Jurisdiction and Jurisdictional Immunities: Aerial Incident off the Coast of China’ (2001) 95 American Journal of International Law 631. 7 See BA Boczek, ‘Peacetime Military Activities in the Exclusive Economic Zone of Third Countries’ (1988) 19 Ocean Development & International Law 450.

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in order to protect their security interests,8 and that the US should therefore preserve its right to conduct military activities in China’s EEZ.9 It should be borne in mind that the EEZ is different from the high seas in that it is an area under national jurisdiction. While military activities by third states are allowed within the EEZ, the sovereign rights of the coastal state within its EEZ must also be taken into account. There is, then, a need for some kind of check-and-balance mechanism concerning foreign military activity in the EEZ. Furthermore, even if the military activity in question is internationally lawful, this does not necessarily mean that it is lawful within the EEZ. Indeed, it can be argued that the LOSC limits military activities in the EEZ to navigation and overflight, and other rights as provided in Article 87 of the Convention. It should be recalled that in the past the East–West Center organized several workshops on ‘military and intelligence gathering activities in the EEZ’.10 The launch of this series of workshops was triggered by the EP-3 incident in the South China Sea between China and the US in 2001, mentioned above. The first workshop was held in Bali, Indonesia in June 2002 and focused on identifying disagreements and contrasting positions as well as on areas of possible mutual understanding and agreement.11 Through these efforts, guidelines for military activities were prepared.12 It is hoped that some consensus can be reached in the global community regarding military and intelligence-gathering activities in the EEZs, in particular in connection to a possible review of the LOSC ten years after its entry into force. It is also worth mentioning that at the 14th Annual Conference of the Western Pacific Naval Symposium (WPNS) held in Qingdao, China on 22 and 23 April 2014, the participating navies drew up the Code of Unplanned Encounters at Sea (CUES).13 Though legally

See CE Pirtle, ‘Military Uses of Ocean Space and the Law of the Sea in the New Millennium’ (2000) 31 Ocean Development & International Law 8. 9 See R Pedrozo, ‘Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone’ (2010) 9 Chinese Journal of International Law 9. 10 See East–West Center, Military and Intelligence Gathering Activities in Exclusive Economic Zones: Consensus and Disagreement: A Summary of the Bali Dialogue (East–West Center 2002). 11 For details, see ibid. 12 The text of the Guidelines for Navigation and Overflight in the Exclusive Economic Zone, 16 September 2005, is available at https://​www​.spf​.org/​en/​opri/​news/​ guidelines​_for​_navigation​_and​_overflight​_in​_the​_exclusive​_economic​_zone​.html. 13 See P Xiaoqian, ‘Maritime Security Cooperation’, Beijing Review, No. 19, 8 May 2014, available at http://​www​.bjreview​.com​.cn/​quotes/​txt/​2014​-07/​05/​content​ _627875​.htm. 8

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non-binding, this is a helpful Code which aims to avoid misunderstanding and miscalculations at sea.14 In conclusion, military activities other than the exercise of the right of navigation in and/or overflight above the EEZ under the LOSC are not navigational rights per se, but special rights associated with navigation.15 It should not be taken for granted that since such activities are associated with navigation they should be treated as if they are navigational rights.

3.

PIRACY AND RECAAP

International law places an obligation on states to cooperate in the suppression of piracy and grants states certain rights to seize both pirate ships and pirates. According to the LOSC, all states have the obligation to ‘cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State’16 and ‘every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board’.17 However, the definition of piracy in the LOSC only applies to this international crime on the high seas or areas beyond the jurisdiction of any state, thus limiting its application to similar criminal acts in the territorial seas and maritime areas close to the coasts.18 Having realized that many piratical incidents occur in the waters of national jurisdiction, the International Maritime Organization (IMO) has responded to this problem by developing a functional definition which facilitates a crackdown on piracy in areas within national jurisdiction: while retaining the meaning of the LOSC definition on piracy, the IMO has developed the complementary concept of ‘armed robbery against ships’, which has become a most popular applicable definition for the purpose of anti-piracy operations, irrespective of where they occur.19 This definition has now been accepted by the United Nations Security Council (UNSC) and has been incorporated into the 2004 Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP).20 As See ‘Navy Leaders Agree to CUES at 14th WPNS’, 23 April 2014, available at http://​www​.navy​.mil/​submit/​display​.asp​?story​_id​=​80532. 15 See K Zou, ‘Navigation in the South China Sea: Why Still an Issue?’ (2017) 32 International Journal of Marine and Coastal Law 243. 16 UNCLOS, Article 100. 17 UNCLOS, Article 105. 18 For the discussion on the definitional deficiencies, see K Zou, ‘New Developments in the International Law of Piracy’ (2009) 8 Chinese Journal of International Law 341. 19 See IMO Piracy Guidance, available at http://​www​.imo​.org/​Documents/​IMO​ _Piracy​_Guidance​.pdf. 20 The text is available at http://​www​.recaap​.org/​index. 14

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a result, there are now in fact two definitions in international law: one is that contained in the LOSC and the other that is in the ReCAAP. Though both are legally defined, they apply in different maritime spheres: piracy as defined in the LOSC is limited to the high seas, whereas armed robbery against ships is applicable in all maritime spheres, whether national or international. However, it must be noted that while the LOSC is a treaty of global application, the ReCAAP is a regional agreement applicable only to the Asian region. The ReCAAP was signed by 16 Asian countries comprising Bangladesh, Brunei, Cambodia, China, India, Indonesia, Japan, Laos, Malaysia, Myanmar, the Philippines, Sri Lanka, Singapore, South Korea, Thailand and Vietnam on 11 November 2004. The Agreement came into force on 4 September 2006 when it received ten ratifications.21 The Agreement obliges Contracting States (a) to prevent and suppress piracy and armed robbery against ships; (b) to arrest pirates or persons who have committed armed robbery against ships; (c) to seize ships or aircraft used for committing piracy or armed robbery against ships; and (d) to rescue victim ships and victims of piracy or armed robbery against ships.22 The Contracting States pledge to implement the Agreement, including preventing and suppressing piracy and armed robbery against ships ‘to the fullest extent possible’, ‘in accordance with their respective national laws and regulations and subject to their available resources or capabilities’ (Article 2.1). The Agreement established the Information Sharing Centre (ISC) in Singapore.23 It is designed ‘to promote close cooperation among the Contracting Parties in preventing and suppressing piracy and armed robbery against ships’ (Article 4.1). The ISC was officially launched in November 2007.24 The ReCAAP has several distinctive characteristics. First, though the original negotiators of the Agreement were 16 Asian states, accession to the Agreement is not exclusive; any state can join after its entry into force, as provided for in the Agreement (Article 18.5). So far, there are 20 Contracting Parties, including some European countries (as of September 2018). Second, the ReCAAP is the first international treaty specifically concerning the prevention and suppression of piracy. Because of this, it has become a model for other regional legal arrangements. Following the ReCAAP, the Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden was adopted on 29 January 2009

It is regretted that two major Straits states, Indonesia and Malaysia, have not yet ratified the Agreement. 22 ReCAAP, Article 3. 23 See ReCAAP, Article 4. 24 Information about its operations can be found at http://​www​.recaap​.org/​index. 21

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at a meeting convened by the IMO in Djibouti.25 Thirdly, the ISC established under the ReCAAP is a governmental international organization, different from other organizations which have similar functions such as the IMB Piracy Reporting Centre (situated in Kuala Lumpur). Finally, it contributes to the legal definition of piracy and armed robbery against ships as mentioned above. Since the adoption of the ReCAAP there has been a significant improvement in the situation of piracy and armed robbery against ships in the South China Sea. For example, there were only four piratical incidents there in 2016. Now we turn, by reference, to the piracy issue in Somali waters. In June 2008 the UNSC passed a resolution on combating acts of piracy and armed robbery off Somalia’s coast (Resolution 1816).26 While the Security Council expressed its grave concern about piracy and armed robbery against vessels in the waters off the coast of Somalia, it decided to act under Chapter VII of the Charter of the United Nations. It was the first time that the UNSC had placed the issue of sea piracy on its agenda and it treated it as a matter threatening international peace and security. A number of Asian countries, including China, now carry out naval operations against piracy in Africa in response to the UNSC Resolution. Nevertheless, since sea piracy still remains a serious problem in Southeast Asia, it is time for the countries adjacent to the South China Sea to consider how to carry out similar joint and/or coordinated operations in that sea.

4.

REGIONAL ARRANGEMENTS

In addition to the ReCAAP, there are a number of other regional documents concerning maritime security in the South China Sea. The most important is the Declaration on the Conduct of Parties in the South China Sea (DOC) signed by ASEAN members and China in November 2002. Signatories to the Declaration pledge to: reaffirm their commitment to the purposes and principles of the Charter of the United Nations, the 1982 UN Convention on the Law of the Sea, the Treaty of Amity and Cooperation in Southeast Asia, the Five Principles of Peaceful Coexistence, and other universally recognized principles of international law which shall serve as the basic norms governing state-to-state relations, [and to] explore or undertake cooperative activities including a. marine environmental protection; b. marine scientific research; c. safety of navigation and communication at sea; See ‘Oceans and the Law of the Sea: Report of the Secretary-General’, UN Doc A/64/66, 13 March 2009, 39–40. 26 UN Doc S/RES/1816 (2008), 2 June 2008. For relevant discussions on this resolution, see K Zou, ‘Piracy and the Security Council’ (2009) 24 International Journal of Marine and Coastal Law 583. 25

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d. search and rescue operations; and e. combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms [pending a comprehensive and durable settlement of the disputes].27

A second important instrument is the Joint Declaration on Cooperation in the Field of Non-Traditional Security Issues between China and ASEAN members in November 2002. The two sides pledge to formulate measures and modalities to enhance their capacity handling non-traditional security issues so as to safeguard regional peace and security. They agree to cooperate in information exchange, personnel exchange and training, capacity building, joint research, and other areas. It prioritizes cooperation concerning ‘combating trafficking in illegal drugs, people-smuggling including trafficking in women and children, sea piracy, terrorism, arms-smuggling, money-laundering, international economic crime and cyber crime’.28 Following the China–ASEAN Declaration, China and ASEAN (under the authorization of the governments of its member states) signed a Memorandum of Understanding between the Governments of the Member Countries of the ASEAN and the Government of the People’s Republic of China on Cooperation in the Field of Non-Traditional Security Issues (MOU on Non-Traditional Security Issues) in Bangkok on 10 January 2004,29 in an attempt to implement the objectives and principles contained in the Declaration. The two sides pledged to develop practical strategies to ‘enhance the capacity of each individual country and the region as a whole in dealing with such non-traditional security issues’ but only ‘in accordance with their national laws and regulations’ (Art. 1),30 and identified the following four areas for cooperation: (1) information exchange; (2) personal exchange and training, with China organizing relevant workshops and training courses; (3) law enforcement cooperation, including in such fields as ‘evidence gathering,

Text is available at https://​asean​.org/​?static​_post​=​declaration​-on​-the​-conduct​-of​ -parties​-in​-the​-south​-china​-sea​-2. 28 See Joint Declaration of ASEAN and China on Cooperation in the Field of Non-Traditional Security Issues, 6th ASEAN–China Summit, Phnom Penh, Cambodia, 4 November 2002, available at https://​asean​.org/​?static​_post​=​joint​-declaration​-of​ -asean​-and​-china​-on​-cooperation​-in​-the​-field​-of​-non​-traditional​-security​-issues​-6th​ -asean​-china​-summit​-phnom​-penh​-4​-november​-2002​-2. 29 Text is available at www​.asean​.org/​storage/​images/​archive/​documents/​ASEAN​ -ChinaMOUonNTS​.pdf. 30 This wording is difficult to understand in view of the fact that non-traditional security issues as listed in the MOU are transnational crimes and international law is indispensable for their prevention and punishment. But only national laws are mentioned here. 27

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tracing of crime proceeds, apprehension and repatriation of criminal fugitives and return of crime proceeds’; and (4) joint research by experts and scholars.31 A third important instrument is the Guidelines for Hotline Communications. On 7 September 2016, at the 19th China–ASEAN Summit held in Vientiane, leaders from China and the ASEAN countries jointly reviewed and approved the Guidelines for Hotline Communications among Senior Officials of the Ministries of Foreign Affairs of China and ASEAN Member States in Response to Maritime Emergencies.32 The Guidelines stipulate the purpose, scope of application, definitions of terminologies, and the designation and application procedures of contact points for a hotline platform for senior diplomatic officials. In the Guidelines a ‘maritime emergency’ refers to an incident in the South China Sea that requires immediate policy-level intervention concerning the full and effective implementation of the DOC. Meanwhile, China and the ASEAN countries have also adopted the Joint Statement on the Application of the Code for Unplanned Encounters at Sea in the South China Sea (SCS CUES).33 Under this Agreement, parties agree to use safety and communication procedures as set out in CUES in order to ensure the safety of all naval ships and naval aircraft when they encounter each other in the South China Sea. The two sides planned to finish consultations on the Code of Conduct outline in the first half of 2017.34

5.

TOWARDS THE CODE OF CONDUCT IN THE SOUTH CHINA SEA

The 2002 DOC clearly states that ‘[t]he Parties concerned reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective’.35 In order to implement the DOC, China and the ASEAN countries began to hold consultations on how to adopt a legally binding Code of Conduct in the South China Sea (COC). After the signing of the 2002 Declaration, the ASEAN members and

See Article 2 of the MOU on Non-Traditional Security Issues. See https://​www​.fmprc​.gov​.cn/​nanhai/​eng/​zcfg​_1/​P020170413337343995888​ .pdf. 33 See https://​asean​.org/​joint​-statement​-on​-the​-application​-of​-the​-code​-for​ -unplanned​-encounters​-at​-sea​-in​-the​-south​-china​-sea/​. 34 See ‘Chairman’s Statement of the 19th ASEAN–China Summit to Commemorate the 25th Anniversary of ASEAN–China Dialogue Relations’, 7 September 2016, Vientiane, Lao PDR, available at https://​www​.asean​.org/​wp​-content/​uploads/​images/​ archive/​documents/​20185​-DOC​.pdf. 35 2002 DOC (n 27). 31 32

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China established two mechanisms in 2005 for the purpose of implementing the Declaration: one is the ‘ASEAN–China Senior Officials Meeting on the Implementation of the DOC’ and the other the ‘ASEAN–China Joint Working Group on the Implementation of the DOC’. While the first, which is ad hoc, reviews progress of the implementation of the DOC and discusses principles and methods relating to it, the second, which meets twice a year, functions under the direction of the ASEAN–China Senior Officials Meeting. In July 2011 the two sides signed the ‘Guidelines for the Implementation of the DOC in regard to possible joint cooperative activities, measures and projects’.36 Following this, the two sides held a workshop on the tenth anniversary of the DOC on 1–2 November 2012 in Phnom Penh and stressed ‘the significance of the strategic partnership to continue their constructive engagement, to keep the momentum of the progress of dialogue and consultation with the view to further promoting the ASEAN–China Strategic Partnership in the implementation of and moving forward towards eventual adoption of the COC based on consensus’.37 While the ASEAN members are anxious to adopt the COC as early as possible, China has taken a more cautious approach to the process. Though China supports the adoption of the COC, it has clearly expressed the view that the COC is only a mechanism for functional cooperation and crisis management, and not a mechanism for the resolution of sovereignty and maritime disputes. In early August 2013, Wang Yi, Chinese Minister of Foreign Affairs, made four points in Hanoi (during his visit to Vietnam) regarding the adoption of the COC: • First, reasonable expectations. Some countries are talking about ‘quick fix’, like reaching consensus on COC within one day. It is an attitude neither realistic nor serious. COC involves multilateral interests from different parties, and its formulation is a process of sophisticated and complex coordination. • Second, consensus through negotiations. We should refer to the experience of reaching DOC to move forward COC. To seek consensus as broadly as possible and to keep the comfort of all parties in mind. Wills of an individual country or of a few countries should not be imposed on other countries, as an old Chinese saying, nothing forcibly done is going to be agreeable. • Third, elimination of interference. China and ASEAN countries tried several times to discuss COC before, but got stuck due to some interferences. All parties concerned should do more to help moving forward the process of COC, and create the necessary conditions and atmosphere, not going the opposite way.

Text is available at http://​id​.china​-embassy​.org/​eng/​sgdt/​t844905​.htm. Workshop on 10th Anniversary of the Declaration on the Conduct of Parties in the South China Sea (DOC), available at https://​ asean​ .org/​ workshop​ -on​ -10th​ -anniversary​-of​-the​-declaration​-on​-the​-conduct​-of​-parties​-in​-the​-south​-china​-sea​-doc/​. 36 37

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• Fourth, step-by-step approach. The formulation of COC is stipulated in DOC. COC is not to replace DOC, much less to ignore DOC and go its own way. The top priority now is to continue to implement DOC, especially promoting maritime cooperation. In this process, we should formulate the road map for COC through consultations, and push it forward in a step-by-step approach.38

Between 11 and 12 September 2013, the two sides held the Sixth Senior Officials’ Meeting and the Ninth Joint Working Group’s Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea in Suzhou, China. This was the first official meeting on the consultation of the COC in the South China Sea. According to the Chinese mass media, the meeting received positive feedback from the participating countries.39 However, China’s cautious approach has delayed the process of adopting the COC as swiftly as the ASEAN member states had expected. However, significant progress has been made in recent years. In July 2016 China and ten ASEAN countries issued the Joint Statement by the Foreign Ministers of the ASEAN Member States and China on the Full and Effective Implementation of the Declaration on the Conduct of Parties in the South China Sea, which stressed that all parties shall resolve their disputes ‘by peaceful means … through friendly consultations and negotiations by sovereign states directly concerned’.40 China and Southeast Asian countries agreed, in May 2017, to a framework for a COC for the disputed South China Sea, as both sides stepped up efforts to ease tension in the South China Sea. On 31 October 2017, China and six ASEAN countries, comprising Thailand, the Philippines, Cambodia, Myanmar, Laos and Brunei, held the first multilateral joint maritime search and rescue drill in waters off Zhanjiang.41 Also in late October, information was released that China and ten ASEAN member countries planned to hold their first joint naval exercises in 2018.42 At the 20th ASEAN–China Summit held in November, the Leaders’ Declaration 38 ‘Foreign Minister Wang Yi on Process of “Code of Conduct in the South China Sea”’, 5 August 2013, available at http://​www​.fmprc​.gov​.cn/​eng/​zxxx/​t1064869​.shtml. 39 See ‘6th Senior Officials’ Meeting on Implementation of DOC held in Suzhou’, 15 September 2013, available at https://​www​.fmprc​.gov​.cn/​mfa​_eng/​zxxx​_662805/​ t1079289​.shtml. 40 ‘Joint Statement of the Foreign Ministers of ASEAN Member States and China on the Full and Effective Implementation of the Declaration on the Conduct of Parties in the South China Sea’ (24 July 2016), available at http://​asean​.org/​storage/​2016/​07/​ Joint​-Statement​-on​-the​-full​-and​-effective​-implementation​-of​-the​-DOC​-FINAL​.pdf. 41 ‘China, ASEAN hold joint maritime rescue drill’ (31 October 2017), China Military Online (website of the Ministry of National Defense of the People’s Republic of China), available at http://​eng​.mod​.gov​.cn/​news/​2017​-10/​31/​content​_4796204​.htm. 42 ‘China–ASEAN naval exercises proposed’ (25 October 2017), Global Times, available at http://​www​.globaltimes​.cn/​content/​1072003​.shtml.

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of a Decade of Coastal and Marine Environmental Protection in the South China Sea (2017–2027) was also adopted.43 It should be noted that ASEAN members and China agreed on a Single Draft COC Negotiating Text at the 15th ASEAN–China Senior Officials’ Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea in Changsha, China, on 27 June 2018.44 Thus while there is significant progress, it is clear that the adoption of the COC will still take some time.

6. CHALLENGES In recent years, security issues have had a major impact on the maintenance of maritime peace and stability in the South China Sea. If such issues cannot be resolved in a timely fashion, they can cause serious damage to regional economies, and even disrupt the global trading order. Meanwhile, it is acknowledged that traditional political and military factors continue to exert a strong influence over security in the South China Sea, as reflected in the development of disputes over the Spratly Islands and the increasing intervention of external powers in the region. Despite the adoption of the 2002 DOC between ASEAN nations and China, attempts to consolidate territorial claims by individual claimants have been intensified, as seen in moves by Malaysia, whose Prime Minister visited a disputed islet in the Spratly Islands in March 2009, and the Philippines, which adopted a new law (Republic Act 9522) to include the disputed Kalayaan Group a month earlier. The row between China and the US in March 2009 regarding an American naval vessel conducting intelligence gathering and military surveying in the EEZ of China in the South China Sea shows that major maritime powers retain their strong interest in the South China Sea. However, the importance of non-traditional security factors is significantly greater than it was, particularly with the resurgence of sea piracy in the South China Sea and the Malacca Straits. A closer examination of the security situation in the South China Sea shows that cooperation and conflict coexist. The key point is how to convince the countries concerned to realize the necessity

43 ‘Chairman’s Statement of the 20th ASEAN–China Summit’, 13 November 2017, available at http://​asean​.org/​storage/​2017/​11/​FINAL​-Chairmans​-Statement​-of​-the​ -20th​-ASEAN​-China​-Summit​-13​-Nov​-2017​-Manila1​.pdf; ‘Declaration for a Decade of Coastal and Marine Environmental Protection in the South China Sea (2017–2027)’, 13 November 2017, available at http://​asean​.org/​storage/​2017/​11/​Declaration​-for​-a​ -Decade​-of​-Coastal​-and​-Marine​-Environmental​-Protection​-in​-the​-South​-China​-Sea​ -2017​-2027​.pdf. 44 See ‘Joint Communique of the 51st ASEAN Foreign Ministers’ Meeting’, 2 August 2018, available at https://​asean​.org/​joint​-communique​-51st​-asean​-foreign​ -ministers​-meeting/​.

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of engaging with each other to cooperate and avoid potential conflicts so as to pave the way for lasting peace and security in the region. There is a solid basis upon which to reach the goal of cooperation in the resolution of the security issues concerning the South China Sea. In addition to a series of international treaties which bind states parties, China and the ASEAN countries have also reached a number of agreements relating to maritime security. By signing the Joint Declaration of ASEAN and China on Cooperation in the Field of Non-Traditional Security Issues (November 2002) and the Memorandum of Understanding between ASEAN and China on Cooperation in the Field of Non-Traditional Security Issues (January 2004), China and ASEAN have established a partnership in safeguarding maritime security in the South China Sea. The 2002 Declaration on the Conduct of Parties in the South China Sea is specifically applicable to the South China Sea and requires the states concerned to cooperate in the fields of non-traditional security, including the fight against sea piracy and maritime terrorism. On the other hand, it should be noted that the 2002 Declaration is a political document without binding legal force, thus affecting its practical effectiveness. Moreover, there is no effective notification and information-sharing mechanism. A multilateral maritime security cooperation framework has not yet been established in the South China Sea region. In this regard, the recently adopted Guidelines and SCS CUES mentioned above are a positive step towards formulating a mechanism for maritime security. Furthermore, the scope and modes of cooperation in maritime security have not been clearly defined. For instance, questions arise as to whether cooperative operations should extend to disputed maritime areas and how law enforcement should be conducted in such sea areas. It is also necessary to explore whether and how external powers should be invited to engage with the multilateral maritime security cooperation framework and what respective roles the governments, business sectors and non-state actors should play in the maintenance of maritime security in the South China Sea. A crucial aspect of maritime security cooperation in the South China Sea is to achieve regional cooperation in the disputed maritime areas. Due to the overlapping sovereignty claims over insular features in the South China Sea, and the ensuing disputes over maritime jurisdiction, the countries concerned will need to take a cautious approach when developing security cooperation in order to avoid negative consequences. If security cooperation is likely to allow one of the parties in dispute gradually to control the disputed maritime areas, the other parties will naturally resist such cooperation. Moreover, the populations of the countries concerned have deeply rooted convictions that the disputed sea areas are the territory of their own countries. In order not to fuel nationalist sentiment, governments have to be cautious in negotiations concerning security cooperation.

216

Maritime security and the law of the sea

On the other hand, there are a number of negative factors affecting security cooperation in the South China Sea. Since President Trump came to power, the US has intensified its military operations in the South China Sea in the name of exercising the freedom of navigation. By May 2018, six ‘freedom of navigation operations’ (FONOPs) had been conducted, three of which entered into China’s territorial sea around the Xisha Islands (USS Stethem, 02/07/17, USS John S. McCain, 10/08/17 and USS Chafee, 10/10/17). The intensification of such operations is also linked to the South China Sea Arbitration, which was initiated by the Philippines in 2013.45 The Award rendered in July 2016 overwhelmingly favours the Philippines.46 The arbitral findings that Mischief Reef is a low-tide elevation and Chinese land reclamation activities there are artificial installations have resulted in there being a broader area in which free navigation might be undertaken around that Reef. The arbitral Award is, therefore, favourable for the US when it seeks to further assert its freedom of navigation in the South China Sea. As early as 2013, the current author observed that the South China Sea Arbitration case was ‘part of the overall rebalancing strategy of the United States in order to contain a rising China’ and this view was later incorporated in a subsequent article published in 2015.47 It now seems that the Arbitration has facilitated not only the US rebalancing strategy, but also President Trump’s Indo-Pacific strategy. Military operations led by the US also constitute one of the obstacles to the adoption of the COC, despite the persistent efforts made by the ASEAN members and China. Although the ASEAN members and China produced a Single Draft COC Negotiating Text in June 2018, the process of negotiating the COC is still likely to take a long time and has to overcome a series of difficulties. For example, the question of whether the COC should be legally binding or not remains to be resolved in the future negotiations. In addition, ASEAN usually balances its relationships with China and the US ‘so that it does not get caught up in the geopolitical rivalry between the two powers and maintain its strategic autonomy’ and centrality.48 Such kinds of subtlety doubtless will be reflected in and exert influence over the negotiating process. The parties concerned fully understand that negotiations on substantive matters are more difficult than on

The diplomatic note and Philippines’ ‘Notification and Statement of Claim’ are available at https://​seasresearch​.files​.wordpress​.com/​2014/​12/​notification​-and​ -statement​-of​-claim​-on​-west​-philippine​-sea​.pdf. 46 See Award of 12 July 2016, [1203]. 47 K Zou, ‘The South China Sea’ in D Rothwell, A Oude Elferink, K Scott and T Stephens (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 642. 48 See R Ghiasy, F Su and L Saalman, The 21st Century Maritime Silk Road: Security Implications and Ways Forward for the European Union (Stockholm International Peace Research Institute 2018) 17. 45

Towards the Code of Conduct for the South China Sea

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procedural issues. Nevertheless, one thing is certain: that the future COC will accommodate security considerations in the South China Sea, including those highlighted in this chapter.

7. CONCLUSION Based on the above discussions, some concluding observations can be made. First, there is no doubt that the legal basis for the formulation of the maritime security mechanism has already been provided. The countries concerned can use several existing channels to develop such a mechanism. The meetings for the implementation of the 2002 DOC could be one of these channels. Second, information sharing is particularly important for security cooperation in the disputed sea areas. This can be achieved by establishing a shared database on maritime security in the South China Sea and an information exchange system. The experiences gathered from the ReCAAP ISC can be borrowed. Third, with regard to the complex and changing traditional and non-traditional security issues, it is to be expected that the countries concerned will place security cooperation in the South China Sea at the top of their agenda, contributing to building a consensus for the establishment of a multilateral maritime security cooperation framework in the foreseeable future.49 Such cooperation will be more feasible if a functionalist approach is taken. The negotiating process of the COC no doubt provides a useful platform to reach that goal.

49 See W Shicun and K Zou, ‘Maritime Security in the South China Sea: Cooperation and Implications’ in Wu and Zou (eds) (n 3) 11–12.

Index Borgese, E 115 Boulanin, V 113 Boyle, S 114, 115, 116, 117 Brits, P 8 broken windows theory, fisheries and enforcement strategies 67–8, 78, 80 Brölmann, C 116, 118 Bueger, C 3, 4, 10, 22, 25–47, 48, 51, 55, 83 Buga, I 114 bunkering activities 13–14, 64–5, 87 Burke, W 11 Buzan, B 29, 48 Byers, M 51

‘1000 Ship Navy’ concept 30–31 Abbott, J 4 African Union (AU) 6–7, 8, 31, 32, 53, 61 Ali, K-D 52 Allen, C 109, 110, 135, 141 Allott, P 121 Anderson, H 169, 172 Anderson, K 134, 136 Ardron, J 72 Arias, M 171 ASEAN (Association of Southeast Asian Nations) 6, 209–11, 215 Australia 20–21, 73, 177 Automatic Identification System (AIS), International Maritime Organization (IMO), SOLAS and ISPS Code 186–7

Caddell, R 57 Campbell, S 135 capacity building, new agenda for maritime security studies 32, 40, 41–5, 46–7 Carey, L 127 Caribbean Community (CARICOM) 7, 8 Chadwick, K 22–3, 132–56 Chang, F 26 Chapman, L 183 Chapsos, I 49, 54, 73 Charalambous, N 183 China, South China Sea see South China Sea Code of Conduct Churchill, R 14, 71, 89, 114, 115, 116, 121, 125, 162, 172, 188, 189 Cinner, J 76 coastal states freedom of navigation 12–14, 16 unmanned maritime systems (UMS) see unmanned maritime systems (UMS) and international law readiness, coastal state jurisdiction see also state practice

Barkin, S 77 Barnes, R 2, 22, 48–82, 172, 174 Barrett, J 2, 115, 121 Bateman, S 20, 48, 53, 78, 204 Becker, M 13 Beckman, R 18, 198 Bekkevold, J 26, 28 Bennett, A 170 Bergenas, J 54 Bering Liisberg, J 35 Berkowitz, B 135, 136 best practices, fisheries and maritime security 78–9 blue economy (economic security) 3, 7, 33, 45, 46, 55, 57, 72 Blunden, M 28 Bo, M 130 Boczek, B 51, 205 Boister, N 122, 130 Booth, K 28

218

Index

code of conduct, South China Sea see South China Sea Code of Conduct component theory, unmanned maritime systems (UMS), warship role and status 142, 144, 147, 150–51 Container Security Initiative (CSI), port states and maritime security threats 197–8 cooperation and coordination fisheries and maritime security 57–8 new agenda for maritime security studies 38–41 South China Sea Code of Conduct 215–16 Coulter, D 77 Cox, L 180, 190, 196 Crawford, J 174 Cullen, P 35 David, F 51 Davies, A 79 De Coning, E 49, 73 Denton, G 49 deregistration, ships without nationality 159–60 DeSombre, E 77 diplomatic protection, ships without nationality 172, 174–5 dispute settlement 9, 11 exclusive economic zones (EEZ) 96–8 fisheries and maritime security 73–81 see also individual courts Djibouti Code of Conduct 39, 40 Downs, M 44 drones, use of, maritime crimes with unmanned systems 106–7, 108–9 drug trafficking 16, 109, 153 due diligence obligations, fisheries and flag State obligations 66, 67, 69 Duffield, M 29 Duncan, P 78 economic security (blue economy) 3, 7, 33, 45, 46, 55, 57, 72 Edgerton, M 180 Edmunds, T 22, 25–47, 48 Egede, E 7

219

Ejdus, F 45 enforcement measures and broken windows theory 67–8, 78, 80 high-end maritime security see under high-end maritime security as legal argumentation, exclusive economic zones (EEZ) port states, International Maritime Organization (IMO), SOLAS and ISPS Code 184–5, 187, 190–94 UN Convention on the Law of the Sea 11–19 environmental security and fisheries 33, 55, 56, 57, 59–60, 69, 75 see also pollution Estrada-Tanck, D 50 Etienne, L 37 EU European External Action Service 8 Maritime Security Strategy 6, 31–2, 36, 39, 40, 42, 53, 61 vessel monitoring system (VMS) technology 79 European Court of Human Rights Loizidou v Turkey 116 Medvedyev v France 174 European Court of Justice, Intertanko v Secretary of State for Transport 173 Evans, M 1–24 evolutionary interpretation issues, maritime crimes with unmanned systems 118–23 exclusive economic zones (EEZ) fisheries and maritime security, jurisdiction 57, 64 high-end maritime security see high-end maritime security as legal argumentation, exclusive economic zones (EEZ) South China Sea Code of Conduct 203, 204–5, 206–7, 214, 215 UN Convention on the Law of the Sea and maritime security 12, 13–14, 20

220

Maritime security and the law of the sea

explosives and unmanned systems 108–9, 112 Extavour, W 88 Fangyin, Z 45 Febrica, S 52 Finn, A 142 fisheries and maritime security 48–82 bunkering activities 13–14, 64–5, 87 conflicts and disputes 73–81 connectivity drive 57–8 economic security (blue economy) 3, 7, 33, 45, 46, 55, 57, 72 enforcement strategies and broken windows theory 67–8, 78, 80 environmental security 33, 55, 56, 57, 59–60, 69, 75 Food and Agriculture Organization (FAO) Code of Conduct 59, 60, 61 food security 58–62, 75 human rights 61–2, 64 human security 33–4, 55, 56, 59–60, 61–2 illegal, unreported and unregulated (IUU) fishing 9, 17–18, 49, 53, 59, 62, 72, 73–81, 107 information access and procedures for boarding and inspection 65–7 legal framework 56–69 links between different security threats 69–73 maritime security concept 51–6 monitoring, control and surveillance (MCS) rules 67 Port State Measures Agreement (PSMA) 58, 66, 68–9 regional coordination 78–9, 80 regional fisheries management organisations (RFMOs) 66–7 regulation and best practices 78–9 small-scale fisheries sector 75 stakeholder engagement 68–9 state practice 53–5 UN Convention on the Law of the Sea (LOSC) 56, 57, 62, 63, 64–5, 66, 69, 70–71, 72–3

UN Fish Stocks Agreement (UNFSA) 17–18, 58, 66–7, 68 vessel monitoring system (VMS) technology 79 vulnerable status of fish stocks or habitats, consideration of 69 fisheries and maritime security, jurisdiction 62–9 due regard obligations 66 exclusive economic zones (EEZ) 57, 64 flag State due diligence obligations 66, 67, 69 intelligence basis 65–6 territorial seas 63–4, 66, 68–9, 75, 76–7 flag, entitlement to fly, ships without nationality 162–6 flag states enforcement role on high seas 10, 13–15, 16–19, 23 fisheries and maritime security, jurisdiction 65, 66, 67, 69 port states and maritime security threats 183, 184, 190, 199 ships without nationality 158–61, 162, 163, 166, 169, 170–71 unmanned maritime systems (UMS) 141, 148, 150–51, 153 see also state practice flag switching issues, ships without nationality 158–9 flags of convenience 5, 190–91 Fleming, D 79 Food and Agriculture Organization (FAO) Code of Conduct 59, 60, 61 food security, and fisheries 58–62, 75 Forteau, M 87 France 31, 78, 79–80 Francioni, F 51 Freedberg, S 137 freedom of navigation 4, 6, 12–14, 15–16, 19, 21, 65–6, 154, 204 see also innocent passage; transit passage Galani, S 1–24 Gallagher, A 51

Index

Geiss, R 28, 127, 128 George, M 77–8 Germond, B 52 Ghiasy, R 216 Gilmore, W 16, 51 Gobena, A 54 Grove, E 28 Guilfoyle, D 11–12, 15, 17, 21, 51, 63, 65–6, 119, 125, 158, 160, 166, 168, 172 Hamilton, S 49, 73 Hänggi, H 43 Harris, J 49 Hart Dubner, B 171 Hastings, J 35 Hayashi, M 20 Haynes, P 30 Heijer, M den 170, 172 Henderson, A 145 Herbert-Burns, R 192 Hey, E 63 high-end maritime security as legal argumentation 83–103 marine protected areas (MPA) 86, 97–8, 101 marine resources entitlement 83, 85, 87–8, 89, 91 UN Convention on the Law of the Sea (LOSC) 84–5, 86–7, 88, 90–91, 93, 94, 95, 97, 98, 100 high-end maritime security as legal argumentation, exclusive economic zones (EEZ) 85, 86–92 allocation to a state 92–5 competences and entitlements 88–9 constraint powers and discretionary rights, international legal powers in disputed cases, use of 96–8 delimitation between states with opposite and adjacent coasts 94–5 exclusivity 87–9 hierarchy 90–91 historic title 89, 90–91 islands, distinguishing from other features 91–2 law, constraint powers and discretionary rights 95–8

221

law, enforceability 98–102 limiting role of features 91–2 seaward delineation 93–4 sovereignty–effectiveness– contestability argument 92–3 Hofmann, T 122 Hogan, J 183 hot pursuit right 14, 153–4 Houben, M 36 Howarth, L 78 Hsieh, T-S 77 Huggins, J 39 human involvement, maritime crimes with unmanned systems 111–14 human rights 10, 61–2, 64, 116, 174, 193–4 human security, fisheries and maritime security 33–4, 55, 56, 59–60, 61–2 illegal, unreported and unregulated (IUU) fishing 9, 17–18, 49, 53, 59, 62, 72, 73–81, 107 see also fisheries and maritime security; pollution Independent World Commission on the Oceans (IWCO) 30 Indonesia 54, 73 information access 5, 19–21, 65–7, 185–6, 195, 206–7, 208–9 innocent passage 9, 13, 146–9 see also freedom of navigation; transit passage International Court of Justice (ICJ) Anglo-Norwegian Fisheries (UK v Norway) 62, 89 Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India) 94 Construction of a Wall in Occupied Palestinian Territory 97 Corfu Channel 150 Fisheries Jurisdiction (Spain v Canada) 62, 71, 76 Fisheries Jurisdiction (UK v Iceland) 62 Interim Accord (Macedonia v Greece) 96 Maritime Delimitation in the Black Sea (Romania v Ukraine) 94

222

Maritime security and the law of the sea

Maritime Delimitation and Territorial Questions (Qatar v Bahrain) 92 Mutual Assistance in Criminal Matters (Djibouti v France) 96 Navigational Rights (Costa Rica v Nicaragua) 96 Obligation to Prosecute or Extradite (Belgium v Senegal) 97, 99 Passage through the Great Belt (Finland v Denmark) 138 Phosphate Lands in Nauru (Nauru v Australia) 71 Pulp Mills on the River Uruguay (Argentina v Uruguay) 96 Southern Bluefin Tuna 76 Territorial and Maritime Dispute (Nicaragua v Colombia) 84, 91 Territorial and Maritime Dispute (Nicaragua v Honduras) 88 Whaling in the Antarctic (Australia v Japan) 20, 95–6, 97 International Maritime Organization (IMO) 21, 33 and Maritime Autonomous Surface Ships (MASS) 106, 133–4, 135, 140 piracy suppression 207 SOLAS and ISPS Code see port states and maritime security threats, International Maritime Organization (IMO), SOLAS and ISPS Code International Regulations for Preventing Collisions at Sea (COLREGs) 133, 139–40, 141–2 International Ship Security Certificate 184–5 International Tribunal for the Law of the Sea (ITLOS) 12 Arctic Sunrise (Netherlands v Russia) 96 Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) 69, 85–6, 97–8, 101–2

‘Juno Trader’ (Saint Vincent and the Grenadines v Guinea-Bissau) 65 M/V ‘Norstar’ (Panama v Italy) 13, 64–5, 87 M/V ‘Saiga’ (No 2) (Saint Vincent and the Grenadines v Guinea) 64, 65, 128, 162, 163 M/V ‘Virginia G’ (Panama v Guinea-Bissau) 13, 64, 87 Naval Vessels (Ukraine v Russian Federation) 9, 12, 102 South China Sea Arbitration Award 66, 69, 71, 77–8, 85–94passim, 97, 98, 99–101, 102, 216 ‘Tomimaru’ (Japan v Russia) 65 Volga (Russian Federation v Australia) 65 interpretive strategy and dealing with change, maritime crimes with unmanned systems 114–18 Ireland–UK voisinage agreement 63–4, 75 islands, distinguishing from other features, exclusive economic zones (EEZ) 91–2 Italy, Illegal Immigrant Smuggling 167 Jain, N 120, 121, 122, 123 Jakab, A 84 Jones, P 79, 80 jurisdiction cross-jurisdictional characteristics and new agenda for maritime security studies 35–6 fisheries and maritime security see fisheries and maritime security, jurisdiction ships without nationality see ships without nationality (stateless), jurisdiction assertion see also individual countries and courts Kasoulides, G 188 Kaye, S 9, 51 Keefer, W 197

Index

223

La Fayette, L de 188 law enforcement see enforcement measures Le Manach, F 74 Le Miere, C 28 legal status determination, ships without nationality 160–62 Levy, J 26 Leymarie, P 44 Liddick, D 73 liminality characteristic, new agenda for maritime security studies 34–5 Lindley, J 49, 73 Liu, Z 137 Lobo-Guerrero, L 29 local ownership emphasis, new agenda for maritime security studies 44–5 Lost-Sieminska, D 106 Lowe, A 14, 51, 89, 162, 172, 188, 189 Lucchini, L 126 Lymer, D 74

maritime autonomy definition 134–5 maritime domain awareness (MDA) 5, 19–21, 37–8 Member State Audit Scheme, International Maritime Organization (IMO), SOLAS and ISPS Code 191 Mensah, T 180, 182, 190, 194 Meyers, H 126, 173 migrant smuggling 16, 166–7, 171 ‘military devices’ classification, unmanned maritime systems (UMS) 145–6 military operations, and law enforcement operations, distinction between 12 military roles for unmanned maritime systems (UMS) see unmanned maritime systems (UMS) and international law readiness, warship role and status military surveys 20 mine-hunting and -sweeping, and unmanned maritime systems (UMS) 150 Molenaar, E 57, 189 monitoring, control and surveillance (MCS) rules, fisheries and maritime security 67 Moran, D 26 Mortensen, N 107 Muawanah, U 75 Muggah, R 44 Mukherjee, P 182, 187, 194 Murdoch, A 23, 157–79 Murphy, M 26, 74

McClanahan, T 76 Macdonald, R 115, 116 McDorman, T 175 McDougal, M 171 McLaughlin, R 133, 140, 144, 171, 176, 178 McNaught, F 190, 191, 192, 196 Mahan, A 28 Malcolm, J 29, 49, 54 marine protected areas (MPA) 86, 97–8, 101 marine resources entitlement 54, 83, 85, 87–8, 89, 91

Namibia 54 national practice see state practice NATO strategy 5, 31, 32, 39 navy involvement, unmanned maritime systems (UMS) 107–8, 133–4 Nel, M 8 new agenda for maritime security studies 25–47 ‘1000 Ship Navy’ concept 30–31 capacity building 32, 40, 41–5, 46–7 cooperation and coordination 38–41 core dimensions of maritime security 32–6

Keen, M 72 Kelling, G 68 Kittichaisaree, K 10 Klein, D 107 Klein, N 2, 3, 9, 10, 17, 18, 21, 52, 71, 112, 180, 182, 183, 190, 195, 198, 199 Kline, J 37 Knight, A 54 Koh, H 84 Kopela, S 23, 93, 180–201 Kraska, J 12, 28–9, 35, 51, 52, 57, 109, 124, 135, 137, 156, 193

224

Maritime security and the law of the sea

cross-jurisdictional characteristics 35–6 economic development and ‘blue economy’ 33, 45, 46 environmental issues 33 future research 46–7 future of studies 45–6 human security issues 33–4 Independent World Commission on the Oceans (IWCO) 30 liberal interpretation 28–9 liminality characteristic 34–5 local ownership emphasis 44–5 maritime domain awareness (MDA) and new epistemic infrastructures 37–8 maritime security rise 27–36 national security issues 32–3 organizational reform and good governance 36–41, 43–4 path to maritime security 30–32 realist interpretation 28 securitization theory 29 security sector reform (SSR) 41–5 Shared Awareness and Deconfliction Mechanism (SHADE) 39–40 Somali piracy 34, 38, 45 terrorism 30, 33, 35, 39, 45 theorizing and interpreting security at sea 28–9 transnational characteristics 35, 38 Nordquist, M 48, 169 Norris, A 132, 134, 137, 139, 142, 144, 151 Noyes, J 126 O’Connell, D 173 Operation Iraqi Freedom 135 organizational reform and good governance, and new agenda for maritime security studies 36–41, 43–4 Orrego Vicuna, F 89 Österblom, H 73 Oude Elferink, A 115 Oxman, B 129 Panjabi, R 49

Papanicolopulu, I 10, 129 Papastavridis, E 16, 51, 171–2 Patalano, A 46 Patraiko, D 136 Patterson, M and S 109, 110 Pedrozo, R 28–9, 35, 52, 124, 193, 206 Percy, S 26, 72, 73 Permanent Court of International Justice (PCIJ), German Interests in Polish Silesia 96 Perper, R 108 Petrig, A 22, 28, 104–31 piracy 5, 15 Contact Group on Piracy off the Coast of Somalia (CGPCS) 36–7, 38, 40 definition 128–30 new agenda for maritime security studies 34, 36–7, 38, 40, 45 Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) 207–9 UN Convention on the Law of the Sea (LOSC) and commission of maritime crimes with unmanned systems 111, 113–14, 119–20, 124–30 unmanned maritime systems (UMS), warship role and status 152 see also terrorism Pirtle, C 51, 206 pollution 4, 9, 10, 12, 14–15, 188, 198 see also environmental security and fisheries; illegal, unreported and unregulated (IUU) fishing Port State Measures Agreement (PSMA) 58, 66, 68–9 see also fisheries and maritime security port states and maritime security threats 180–201 Container Security Initiative (CSI) 197–8 flag states 183, 184, 190, 199 industry partnerships 198 international measures 181–90 risk assessment 183, 192

Index

Suppression of Unlawful Acts (SUA) Convention 18, 182 terrorism 181–2, 183–4, 195, 196, 199 UN Law of the Sea Convention (LOSC) 188–9 unilateral measures and initiatives 196–9 weapons of mass destruction (WMD) and Proliferation Security Initiative (PSI) 199 see also state practice port states and maritime security threats, International Maritime Organization (IMO), SOLAS and ISPS Code 180–95 Automatic Identification System (AIS) 186–7 enforcement measures 184–5, 187, 190–94 human rights obligations 193–4 implementation guidelines 192–3 information exchange and security communications 185–6, 195 Integrated Technical Cooperation Programme 190–94 International Port Security Program 191–2 International Ship Security Certificate 184–5 international shipping and trade impact 187–8 Member State Audit Scheme 191 port facility regulations 189–90 Port Facility Security Assessment 190 restrictions 183–4 ship access denial discretion 188–9 Ship Security Plan 184, 185 World Customs Organization initiatives 194–5 Posen, B 26 Proelss, A 122, 163, 179 public order rationale, ships without nationality 170–71, 173, 179 Rahman, C 37 Raine, J 134 Rayfuse, R 178 Raymond, C 184

225

Redgewell, C 97 regional arrangements, South China Sea Code of Conduct 209–11 regional coordination, fisheries and maritime security 78–9, 80 regional fisheries management organisations (RFMOs) 66–7 registration issues, ships without nationality 161–2, 163–6 Reisman, M 93 Renwick, N 4 research and survey activities, unmanned maritime systems (UMS) 150 resources, marine resources entitlement 54, 83, 85, 87–8, 89, 91 right of visit 15, 145, 153 ships without nationality 162, 163, 164, 165–6, 171–2 Ringbom, H 188, 189 risk assessment, port states 183, 192 Roach, J 20 robotics revolution and unmanned maritime systems 105–8 Roeben, V 22, 83–103 Roff, H 138 Romero, J 197, 198 Rose, G 189 Rosello, M 22, 48–82 Rubin, A 51 Rudischhauser, W 109, 110 rule of law interpretation, maritime crimes with unmanned systems 123–30 Russell, J 26 Ryan, B 29 safety provisions 9–11 South China Sea Code of Conduct 204–7 unmanned maritime systems (UMS) 137 Salomon, T 111 Samatar, A 34 Scharf, M 35 Scheding, S 142 Scheffer, M 74 Scott, S 115 sea lanes and traffic separation schemes 148 security

226

Maritime security and the law of the sea

concept, and fisheries 51–6 core dimensions 32–6 definition 3–4 new agenda see new agenda for maritime security studies sector reform (SSR) 41–5 securitization theory 29 state practice 4–8 threats, and fisheries see under fisheries and maritime security zones 20–21 Sedra, M 43 Shared Awareness and Deconfliction Mechanism (SHADE) 39–40 Shicun, W 217 Ship Security Plan, International Maritime Organization (IMO), SOLAS and ISPS Code 184, 185 ‘ship’ terminology 126–8 ship/vessel definition issues 138–40, 142 ships without nationality 157–79 deregistration 159–60 entitlement to fly flag 162–6 entitlement to fly flag, flag documents 163 flag states 158–61, 162, 163, 166, 169, 170–71 flag switching issues 158–9 legal status determination 160–62 migrant smuggling 16, 166–7, 171 national law enforcement authorities 158 registration issues 161–2, 163–6 registration issues, small ships register (UK) 165 right of visit justification 162, 163, 164, 165–6, 171–2 statelessness consequences 166–7 UN Convention on the Law of the Sea (LOSC) 157, 161, 162, 163, 167–8, 169, 175–6 UN Security Council (UNSC) 167 Vienna Convention 175 ships without nationality, jurisdiction assertion 166–77 broad view 168–71, 172–5 broad view, legislation consistent with 175–7 diplomatic protection 172, 174–5

exclusive jurisdiction 173 human rights obligations 174 narrow view 171–2, 173 public order rationale 170–71, 173, 179 use of ship and ownership of ship distinction 173–4 Singer, P 105, 109, 110 Singer, R 80 Singh Saran, M 39 Skonhoft, A 54 slave trade 15–16, 153 Sloggett, D 46 small ships, registration issues 165 see also ships without nationality small-scale fisheries sector 75 see also fisheries and maritime security Smith, R 20 smuggling 109 migrant smuggling 16, 166–7, 171 sniffers to track down ships using prohibited high-sulphur fuel 107 Somali piracy see piracy South China Sea Arbitration Award 66, 69, 71, 77–8, 85–94passim, 97, 98, 99–101, 102, 216 South China Sea Code of Conduct 202–17 ASEAN Declaration on the Conduct of Parties in the South China Sea (DOC) 209–10, 215 challenges 214–17 China-ASEAN Guidelines for Hotline Communications 211 China-ASEAN Joint Declaration on Cooperation in the Field of Non-Traditional Security Issues 210–11, 215 China-ASEAN Joint Statement on the Application of the Code for Unplanned Encounters at Sea in the South China Sea (SCS CUES) 211, 215 Code of Unplanned Encounters at Sea (CUES) 206–7, 211 cooperation goal 215–16 exclusive economic zones (EEZ) 203, 204–5, 206–7, 214, 215

Index

implementation procedure considerations 211–14 international treaties 204 piracy suppression and Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) 207–9 piracy suppression and Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), Information Sharing Centre (ISC) 208–9 regional arrangements 209–11 safety of navigation 204–7 sovereign rights of coastal states within EEZ 206, 215 UN Convention on the Law of the Sea (LOSC) 203, 204, 205–6, 207, 208 UN Security Council (UNSC) and Somalian piracy 209 sovereignty–effectiveness–contestability argument, exclusive economic zones (EEZ) 92–3 Soyer, B 187, 189 Speller, I 28, 29, 34 Spijkers, J 74 stakeholder engagement, fisheries and maritime security 68–9 state practice 4–8 allocation to a state, exclusive economic zones (EEZ) 92–5 coastal states see coastal states fisheries and maritime security 53–5 fisheries and maritime security, territorial seas 63–4, 66, 68–9, 75, 76–7 flag states see flag states national law enforcement authorities, and ships without nationality 158 new agenda for maritime security studies 32–3 port states see port states and maritime security threats unmanned maritime systems (UMS) 140–42 see also individual countries

227

stateless ships see ships without nationality Steinberg, P 27 Steward, B 78 Stolsvik, G 49 Suppression of Unlawful Acts (SUA) Convention 18, 182 see also port states and maritime security threats swarm tactics, unmanned maritime systems (UMS) 109, 125, 136–7 Symmons, R 64, 75 Talmon, S 100 Tanaka, Y 13 Tangredi, S 26 Tardy, T 36 Tasikas, V 188 technology development Integrated Technical Cooperation Programme, International Maritime Organization (IMO), SOLAS and ISPS Code 190–94 unmanned systems see UN Convention on the Law of the Sea (LOSC) and commission of maritime crimes with unmanned systems; unmanned maritime systems (UMS) and international law readiness vessel monitoring systems (VMS) 21, 79 terrorism 2, 4–5, 6, 7, 11, 12, 14, 18–19 new agenda for maritime security studies 30, 33, 35, 39, 45 port states and maritime security threats 181–2, 183–4, 195, 196, 199 see also piracy Thompson, W 26 Thouvenin, J 87 Till, G 26, 28, 35 transit passage 149–51 see also freedom of navigation; innocent passage Trelawney, C 52 Treves, T 51, 121 Tsamenyi, B 189

228

Maritime security and the law of the sea

Tzeng, P 101 UK

Asya v Attorney General of Palestine 168–9 Criminal Justice (International Cooperation) Act 175 France/UK ‘scallop wars’ 78, 79–80 Ireland–UK voisinage agreement 63–4, 75 Merchant Shipping Act 140–41 Merchant Shipping Act and ship registration 163–6 Modern Slavery Act 175, 176 National Strategy for Maritime Security (NSMS) 31, 32, 36, 54, 75 Perks v Clark (Inspector of Taxes) 141 Policing and Crime Act 176 Polpen Shipping v Commercial Union Assurance 140 R v Goodwin 141 Royal Navy Unmanned Warrior exercise 108, 132–3 Sanctions and Anti-Money Laundering Act 176 small ships register 165 unmanned maritime systems (UMS) definition and categorisation 140–41 UN Convention on the Law of the Sea (LOSC) 1–24 bunkering activities 13–14, 64–5, 87 counter-piracy operations 15 dispute settlement system 9, 11 drug trafficking 16 exclusive economic zone (EEZ) 12, 13–14, 20 fisheries and maritime security 56, 57, 62, 63, 64–5, 66, 69, 70–71, 72–3 flag states and enforcement role on high seas 10, 13–15, 16–19, 23 flags of convenience (FoCs) 5, 190–91 freedom of navigation 4, 6, 12–14, 15–16, 19, 21, 65–6, 154, 204

high-end maritime security as legal argumentation 84–5, 86–7, 88, 90–91, 93, 94, 95, 97, 98, 100 hot pursuit right 14, 153–4 human rights violations 10 illegal, unreported and unregulated (IUU) fishing 9, 17–18, 49, 53, 59, 62, 72, 73–81, 107 innocent passage right 9, 13 law enforcement operations 11–19 law enforcement operations, and military operations, distinction between 12 marine pollution and illegal fishing as activities harmful to security 9 maritime domain awareness (MDA) and information sharing 5, 19–21 maritime security definition 3–4 maritime security in state practice 4–8 maritime security zones 20–21 maritime terrorism threat 4–5 maritime zones compliance and territorial rights 12 military surveys comparison 20 NATO strategy 5 navigation and safety aids, use of 10 non-state actors, threat by 2 port states and maritime security threats 188–9 right of visit see right of visit safety provisions 9–11 ships without nationality 157, 161, 162, 163, 167–8, 169, 175–6 slave trade 15–16, 153 Somali piracy rise 5 South China Sea Code of Conduct 203, 204, 205–6, 207, 208 terrorism 2, 4–5, 6, 7, 11, 12, 14, 18–19 unmanned maritime systems (UMS) and international law readiness 133, 142, 143–4, 145, 146, 147, 148, 152 vessel monitoring systems (VMS) monitoring 21

Index

Vienna Convention 16–17, 84, 118, 124, 129–30, 175 UN Convention on the Law of the Sea (LOSC) and commission of maritime crimes with unmanned systems 104–31 3D printers, use of 110 Constitution of the Oceans role 115–16, 119–20 drones, use of 106–7, 108–9 drug-trafficking 109 evolutionary interpretation issues 118–23 explosives and unmanned systems 108–9, 112 improved usability consideration 110 interpretive strategy and dealing with change 114–18 LOSC extensive subject matter concerns (intradisciplinary nature) 120–23 LOSC fundamental norms framework 116–17, 119–20 LOSC as living instrument 117 navy involvement 107–8 performance and range of unmanned systems 111 piracy 111, 113–14, 119–20, 124–30 piracy definition 128–30 remote human involvement shift 111–14 robotics revolution and unmanned maritime systems 105–8 rule of law based interpretation 123–30 ‘ship’ terminology 126–8 smuggling 109 sniffers to track down ships using prohibited high-sulphur fuel 107 subject matter adaptation requirements 117–18 underwater gliders 109–10, 148, 150 Wave Glider and illegal fishing 107 see also unmanned maritime systems (UMS) and international law readiness UN Fish Stocks Agreement (UNFSA) 17–18, 58, 66–7, 68

229

UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea (UNICPOLOS) 53 UN Security Council (UNSC) 159, 167, 207, 209 UN Security Strategy 52–3, 60–61 underwater gliders, unmanned maritime systems (UMS) 109–10, 148, 150 unilateral measures and initiatives, port states and maritime security threats 196–9 unmanned aerial vehicles (UAV) comparison 144, 154–5 unmanned maritime systems (UMS) and international law readiness 132–56 alternative classification 142 classification 138–46 flag states 141, 148, 150–51, 153 grey zone 134 international conventions 138–40, 142 International Maritime Organization (IMO), and Maritime Autonomous Surface Ships (MASS) 106, 133–4, 135, 140 International Regulations for Preventing Collisions at Sea (COLREGs) 133, 139–40, 141–2 maritime autonomy definition 134–5 military roles for UMS 136–7, 141–2, 143–6 national legislation 140–42 navies, use by 133–4 Operation Iraqi Freedom 135 safety issues 137 ship/vessel definition issues 138–40, 142 swarm tactics 109, 125, 136–7 technology development 135–8 UN Convention on the Law of the Sea (LOSC) 133, 142, 143–4, 145, 146, 147, 148, 152 see also UN Convention on the Law of the Sea (LOSC) and commission of maritime crimes with unmanned systems

230

Maritime security and the law of the sea

unmanned maritime systems (UMS) and international law readiness, coastal state jurisdiction 146–51 compliance and communication 148–9 innocent passage 145, 146–9 mine-hunting and -sweeping 150 research and survey activities 150 sea lanes and traffic separation schemes 148 transit passage 138, 141, 144, 145, 146–7, 149–51 underwater gliders 109–10, 148, 150 unmanned maritime systems (UMS) and international law readiness, warship role and status 143–6, 151–5 alternative definitions 145–6 as auxiliaries 145 component theory 142, 144, 147, 150–51 counter-narcotics operations 153 freedom of navigation operations 154 hot pursuit involvement 14, 153–4 ‘military devices’ classification 145–6 piracy suppression 152 slave trade interception 153 ‘under the command of an officer’ and ‘manned by a crew’ challenge 143–4 unmanned aerial vehicles (UAV) comparison 144, 154–5 US ‘1000 Ship Navy’ concept 30–31 Combined Maritime Forces (CMF) 39 Container Security Initiative (CSI) 197–8 Customs Trade Partnership Against Terrorism (C-TPAT) 198 Drug Trafficking Vessel Interdiction Act (DTVIA) 176–7 International Port Security Program 191–2 maritime security sector reform (MSSR) report 41–2, 44 Maritime Transportation Security Act 196–7

National Plan to Achieve Maritime Domain Awareness 40 National Strategy for Maritime Security (NSMS) 30, 35–6, 74–5 Proliferation Security Initiative (PSI) 18–19 ‘ship-rider’ arrangements 17 United States v Caicedo 170 United States v Dominguez 170 United States v Marino Garcia 169–70, 173 United States v Rubies 170 unmanned maritime systems (UMS) development 137, 141, 142, 144 US Navy, Strategic Roadmap for Unmanned Systems 107 weapons of mass destruction (WMD) and Proliferation Security Initiative (PSI) 199 Vallejo, D 134, 137, 140, 141, 142, 143, 145 Van Der Brught, N 57 Van Hooydonk, E 142, 143, 152 Veal, R 140, 141, 143, 144, 146 Venner, M 43 Verbruggen, M 113 vessel monitoring systems (VMS) 21, 79 Vestergaard Madsen, J 39 Vienna Convention 16–17, 84, 118, 124, 129–30, 175 Vietnam 54, 203 warship role, unmanned maritime systems (UMS) see unmanned maritime systems (UMS) and international law readiness, warship role and status Watt-Pringle, R 38 Wave Glider and illegal fishing 107 see also UN Convention on the Law of the Sea (LOSC) and commission of maritime crimes with unmanned systems Westerman, G 93 Williams, R 187, 189

231

Index

Wilson, J 68 Witbooi, E 49 Wolfrum, R 119 Wood, M 116, 117, 128 World Customs Organization initiatives 194–5 World Summit on Sustainable Development 59–60

Wu, S 52, 203 Xiaoqian, P 206 Zhang, H 46, 78 Zou, K 23, 52, 202–17