1. Introduction
The right of visit on the high seas is the most significant exception to the fundamental principle of the freedom of the high seas, which is predominantly of a negative nature. According to the UN Memorandum on the High Seas (1950):
The freedom of the high seas, essentially negative, may nevertheless contain positive consequences . . . . All maritime flag-States have equal right to put the high seas to legitimate use. But the idea of the equality of usage comes only in second place. The essential idea underlying the principle of freedom of the high seas is the concept of the prohibition of interference in peacetime by ships flying one national flag with ships flying the flag of other nationalities.Footnote 1
From this prohibition of interference with non-national vessels flows the principle of exclusivity of flag-state jurisdiction, namely that ships on the high seas are, as a general rule, subject to the exclusive jurisdiction and authority of the state whose flag they lawfully fly.Footnote 2 This principle is firmly rooted in the axioms of state equality and of the freedom of the high seas.Footnote 3 However, it is not an absolute rule from which no derogation is permitted. On the contrary, international law has recognized since the inception and consolidation of mare liberum, namely the principle that ‘the high seas are open to all States and no State may validly purport to subject any part of them to its sovereignty’,Footnote 4 certain instances in which interference is permissible. Piracy and the slave trade are a few examples of cases that have involved the exercise of the right of visit of foreign vessels on the high seas in peacetime, while it is undisputed that belligerent states may exercise this right against enemy and neutral merchant vessels in wartime.
Recently, the number of cases in which this right is being exercised has significantly increased, with the result that the negative concept of the freedom of the high seas is, arguably, challenged. Indeed, states have become increasingly involved in interferences with vessels on the high seas to counter threats, such as smuggling of migrants, drug trafficking, and the proliferation of weapons of mass destruction (WMD) at sea. They have established several partnerships in various forms to this end, such as the Proliferation Security Initiative (PSI)Footnote 5 or the Agency for the Management of Operational Cooperation at the External Borders of the European Union (FRONTEX),Footnote 6 as well as concluded numerous agreements concerning the interdiction of suspect vessels in this regard. The SUA Protocol (2005)Footnote 7 and the Smuggling Protocol (2000)Footnote 8 are the principal examples of such multilateral treaties. Concurrently, the notion of mare clausum, namely that the high seas are subject to the appropriation of states, seems to have been reinvigorated, not in the traditional sense of claims for maritime dominion, but rather in the sense of claims for more functional jurisdiction on the high seas.Footnote 9
It is readily apparent from the pertinent provision of the 1982 Law of the Sea Convention (LOSC) (Article 110),Footnote 10 which provides for the right of visit on the high seas, that all the aforementioned issues are not included therein; it is thus questioned to what extent the legal order of the oceans, which is predicated upon the principle of non-interference on the high seas, can accommodate such claims for enforcement jurisdiction on the high seas. It is the purpose of this article to respond to this question and to ascertain the role and the significance of these interception activities for the legal order of the oceans of the twenty-first century. Accordingly, the present enquiry will endeavour to provide an insightful exegesis of the rationales behind the various grounds for lawful interference on the high seas. It will be submitted that these grounds are conceptually associated and interlinked with each other and constitute the positive underpinnings of the legal order of the oceans. They reflect the old-fashioned mare clausum arguments and they positively qualify the prevailing regime of mare liberum on the high seas.
The overarching tenet is that the oceans are subject to a certain organizational and regulatory scheme premised upon both negative and positive legal principles, which can aptly be designated as a ‘legal order of the oceans’.Footnote 11 The latter term resembles the original conception of Myres McDougal and William Burke of ‘public order of the oceans’; however, it is neither coterminous in substance, nor does it bring along the public-policy considerations enshrined in these authors’ work.Footnote 12 On the other hand, it shares some characteristics without, however, being identical to the notion of ‘ocean governance’,Footnote 13 which is premised more upon concepts, such as ‘common heritage’, ‘public trusteeship’, ‘global commons’, or ‘public interest’, rather than on fundamental norms, such as the principle of non-interference, the nationality of vessels, the conservation and management of the marine living resources, and the protection of the marine environment.Footnote 14 These norms constitute the Grundnormen of this legal order, in the sense that they are the cornerstones, against which any relevant legal development is assessed and further elaborated.Footnote 15
Hence, the present article will be devoted to discussion of the theoretical framework of the right of visit on the high seas. The historical claims to the freedom of the seas and the celebrated controversy between mare liberum and mare clausum will be canvassed. Drawing valuable insights from this historical survey, it will be possible to revisit this controversy and ascertain the role of interference on the high seas in the legal order of the oceans of the twenty-first century. It is posited that the rationales behind the contemporary right of visit reflect the old-fashioned mare clausum arguments and that they fall under three general categories, namely the maintenance of international peace and security, the protection of the bon usage of the oceans, and the maintenance of welfare and ordre public of the states and of international society. These categories, far from being hermetically sealed or isolated, are interconnected and leave considerable room for permeation by the various grounds for interference.
2. The historical claims to freedom of the seas
The origins of the principle of the freedom of the seas as well as the seeds of its controversy with the claims for maritime dominion can be traced back to the Greek and Roman periods. While, in the former period, the practice and doctrine regarding the sea dwelt predominantly upon maritime dominion, rather than maritime liberty,Footnote 16 in the age of Rome a more conscious and articulate recognition of the problem of maritime freedom and dominion is observed. For instance, in the Institutes of Justinian, it is famously stated that ‘[b]y the law of nature, the following thing are common to all men: the air, flowing water, the sea, and consequently the shores of the sea’.Footnote 17 However, turning to state practice, there were phenomena almost identical to those observed among the Greek states.Footnote 18 As Potter explains,
‘as in the case of Athens, much of the Roman claim to maritime dominion rested upon her activities to piracy . . . piracy was an official state activity and its suppression a matter of interstate war . . . accordingly; success in that direction might naturally produce maritime dominion between state and state’.Footnote 19 In any event, as he concludes, ‘freedom of the seas was a great problem of interstate politics and diplomacy in the age, but not one, which had yet become a matter of formal international law’.Footnote 20
After the disintegration of the Roman Empire, the absolute lawlessness and insecurity at sea led merchants to form associations for mutual protection. By the thirteenth century, nation-states came to discharge this right of exercising jurisdiction on the neighbouring sea and protection of navigation, which soon turned into assertions of exclusive dominions and sovereignty.Footnote 21 Thus, in the Middle Ages, an institution of national maritime dominion was recognized and accepted as part of the principles of inter-state relations or even international law and custom.Footnote 22 In the fifteenth and sixteenth centuries, while the struggle for sovereignty over closed and geographically restricted seas continued unabated,Footnote 23 there were novel claims to dominion over the open oceans of the world by Spain and Portugal, which had earlier been the leading seafarer nations of the Age of Discovery.Footnote 24 The foundations of these claims were identical with the legal titles on which the overseas colonial acquisitions were based: the papal investiture, namely the Inter Caetera edict and the Treaty of Tordesillas of 1493–94 and the right of earliest discovery.Footnote 25 The main rival against the Spanish claims for dominion of the oceans was England, which, under the reign of Queen Elizabeth I, took over the leading role in the struggle for freedom of the seas,Footnote 26 not only against the Spaniards,Footnote 27 but also against the Danish claims in the Baltic Sea.Footnote 28 This period for England, however, was ended with the ascendance to the throne of James I, first of the Stuart kings.Footnote 29
Contrary to the Hispano–Portuguese claims were also doctrinal works, which, surprisingly, came mainly from Spain.Footnote 30 Ferdinard Vasquez (1509–66), for example, refuted the juristic value of the claims to maritime dominion not only of the Venetians and of the Genoese, but even of the Spanish Crown. He maintained that to make the seas and the waves into private national property was contrary to the law of nature and the elementary principles of international relations.Footnote 31 An important, yet less credited, work in this respect is that of Alberto Gentilis, who, albeit starting from the premise that the sea was ‘res communis omnium’, made a sharp distinction between the high seas and coastal waters as well as between the concepts of maritime dominion and maritime jurisdiction.Footnote 32 Under the latter heading, he asserted that restrictions of imports, immigration, and exports are justified for the sake of the safety and morals of people.Footnote 33
Against this background, it is remarkable that it is generally assumed that it was Hugo Grotius who propounded the doctrine of the freedom of the seas and heralded the dawn of a new epoch for the world's oceans.Footnote 34 The truth, however, is that the concept of the freedom of the seas had been enunciated by Spanish theologians and publicists already in the previous century. It is well known that Grotius presented and elaborated his thesis relating to freedom of the high seas in his famous book Mare Liberum, published anonymously in 1609.Footnote 35 In fact, Mare Liberum was merely one chapter (Chapter XII) of a bigger work, De Jurae Praedae (1613),Footnote 36 which, as an advocate of the Dutch East India Company, Grotius had prepared as a legal brief to defend the seizure of the Sta Catharina in the East Indian Seas in February 1603.Footnote 37 The principal aim of Grotius in Mare Liberum was to defend his country's right to navigate in the Indian Ocean and other Eastern Seas and trade with the neighbouring states, over which Spain and Portugal asserted a commercial monopoly as well as political domination. His main argument was that freedom of navigation and trade, whether applied to particular communities or to the universal society of humanity, reflected primary natural laws, with which the Portuguese claims of exclusive access to the East Indies were in discord. Mare Liberum, even if it was not consistently defended by its own author,Footnote 38 elicited polemics and aroused a celebrated doctrinal controversy in the seventeenth century, commonly referred to as the ‘Battle of the Books’.Footnote 39 Many renowned jurists of that time, such as Welwood,Footnote 40 Selden,Footnote 41 and Freitas,Footnote 42 participated in this debate; nevertheless, it is commonplace that the names of Grotius and Selden marked its high point.Footnote 43
While Grotius's thesis was focused on the Hispano-Portuguese monopoly in the East Indies, it was mainly the British, who in view of the ongoing Anglo-Dutch dispute over the ‘Oceanus Britannicus’, challenged his theory.Footnote 44 However, British claims for sovereignty of the sea shrank in parallel to the increase in power of their fleet and to the decline in power of the rival Spanish and Dutch fleets at the end of the seventeenth century. Concomitantly, an interest in the idea of freedom of the seas reappeared in the English policy after the end of the Anglo-Dutch disputes.Footnote 45 The deciding factors were, on the one hand, the consolidation of Britain's de facto dominion over the oceans and, on the other, the colonial and commercial conceptions of mercantilism.Footnote 46 In the course of the eighteenth century, the freedom of the seas, in the traditional sense, garnered wide acceptance in the practice of European states due to colonialism and the European imperial expansion, and most writers shared the view that no state had exclusive dominion over the open seas, excepting the waters contiguous to its own coastal territory.Footnote 47
In the nineteenth century, the world saw, on the one hand, the freedom of the seas attain even more importance due to the growing needs and demands of the Industrial Revolution in Europe,Footnote 48 while, on the other, the British fleet came to ‘rule the waves’ and adopt the role of an international maritime police. The instrument of British policy in this respect was the international legal concept of piracy. ‘Just as in previous centuries Britain had not shied away from relying on the co-operation of pirates in pursuing its overseas goals, it did not shy away from using the struggle against piracy as an instrument for its policy of maritime dominion.’Footnote 49
The twentieth century was the era of the codification of the freedom of the high seas, first in the 1958 Geneva ConventionsFootnote 50 and then in LOSC. Mare liberum was taken to mean that the high seas were common to all states and that no state may purport to subject any part of them to its territorial sovereignty. However, it was ratione loci limited to ‘all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State’ (Article 86 of LOSC).
Whilst no serious dispute existed in the last century on the freedom of the seas, international jurists had not agreed as to the legal basis on which the doctrine was founded. On the one hand, it was said that the high seas is a thing that belongs to nobody (res nullius) and, on the other, that the high seas is a thing belonging to everybody (res communis).Footnote 51 ‘In favour of the first view, it is urged that sovereignty is absent on the high seas; in favour of the second view, it is contended that the sea is common because it is a necessary instrument to international navigation and trade.’Footnote 52 Conversely, Fauchille criticized the employment of both these Latin terms and opined that the usage of the sea remains eternally open to all nations,Footnote 53 while Nicolas Politis was of the view that the ‘res communis’ characterization of the open sea is more in accord with the positive conception of the solidarity on which all modern international relations are grounded.Footnote 54
Whatever the exact legal nature of the high seas is, it is, in any event, subject to the corpus juris gentium (or, in the words of Gidel, the principle of la juridicité de haute mer).Footnote 55 The legal order of the high seas is predicated primarily on the rule of international law that requires every vessel to possess the nationality of one state, which is, thus, responsible for maintaining the minimum public order of the oceans.Footnote 56 Under LOSC, the freedom of the high seas includes the freedom of navigation, the freedom of overflight, the freedom to lay submarine cables, to construct artificial islands and other installations, the freedom of fishing and, lastly, the freedom of scientific research.Footnote 57 All high-seas freedoms, whether expressly stated in the Convention or not, are enjoyed subject to the qualification that they shall be exercised by all states ‘with due regard for the interests of other States in their exercise of the freedom of the high seas’.Footnote 58
Even if the extension of the high seas was limited by LOSC with the acknowledgement of a 12 nautical mile territorial sea (Article 3) and 200 nautical mile Exclusive Economic Zone (EEZ) (Article 57), the majority of the freedoms of Article 87 of LOSC, especially the freedom par excellence of navigation, are also applicable in the contiguous zone and in the EEZ subject to the rights of the coastal state therein.Footnote 59 This is reflected, for example, in the recognition of the EEZ as a legally sui generis maritime zone.Footnote 60 In addition, it is set forth in Article 78(2) of LOSC that ‘the exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States’.
On the other hand, most of the freedoms of the high seas, far from being left unfettered and in a rudimentary laissez-faire regime, were placed under a regulatory framework aiming at the co-operation of states in the management and the sustainable development of the oceans.Footnote 61 To exemplify this, the traditional freedom of fishing has become subject to positive obligations, such as the obligation to take appropriate measures to maintain the living resources at their maximum sustainable yield.Footnote 62 It is also noteworthy that the seabed and its subsoil of the high seas were recognized as ‘common heritage of mankind’; however, the international seabed area was not left open to arbitrary exploitation by states individually, but placed under the institutional framework of the International Seabed Authority.Footnote 63
In conclusion, it is readily apparent that the history of the law of the sea has been marked by the doctrinal controversy and the tensions between the two phenomenally divergent regimes of mare clausum and mare liberum.Footnote 64 It was at the end the socioeconomic needs of the international society to have free access to the markets of the world and to freely communicate and trade at sea that marked the triumph of mare liberum over mare clausum claims. As stated by McDougal and Burke:
‘[b]y appropriate accommodation and compromise, a public order of the sea has been maintained to permit States to send their argosies to all the four corners of the world and to take adequate account of both the general security interest of the community of States and the special security interest of particular states . . . . The historic process of decision has similarly achieved a very wide sharing in the allocation of resources and in access to the oceans and markets of the world. Though coastal states have been given a reasonable measure of protection in control of immediately adjacent activities and resources, the larger expanses of oceans have been mostly preserved as accessible to all . . . .Footnote 65
However, was there ever such a stark dichotomy between mare liberum and mare clausum? Were Selden, Grotius, and the other jurists in real disagreement over the regime of the ‘vast and expanded oceans of the world’? Furthermore, what was the role of interference on the high seas in this historical context and what conclusions should be drawn from it? Is there any room for the historical claims for mare clausum in the contemporary public order of the high seas?
3. The contemporary right of visit: lessons from the historical and theoretical framework of mare liberum
Drawing insights from the work of Grotius, Selden, and the other authors in the celebrated era of the ‘Battle of the Books’, it is possible to make the following observations: first, Grotius never propounded a theory of absolute negative freedom of the high seas, in the sense of Gidel, namely of an absolute prohibition of interference with foreign vessels in the oceans. On the contrary, Mare Liberum itself was initially written as a defence of an interference with a foreign vessel, namely Sta Catharina in the Straits of Singapore, which, according to the Dutch East India Company, was a lawful booty in a just war. Thus, Grotius consciously excluded bellum justum and jus praedae, including measures such as visit of foreign vessels on the high seas, from the scope of mare liberum.
In addition, Grotius acknowledged that the crux of the matter was the status not of the coastal waters, but of the open sea. In his words,
‘the question at issue is not one that concerns an inner sea, one which is surrounded on all sides by the land, and at some places does not even exceed a river in breadth. The question concerns the whole ocean, which antiquity called it immeasurable and infinite . . . and in this ocean the controversy is not of a bay or a narrow strait or concerning all that may be seen from the shore’.Footnote 66 Hence, it readily appears that Grotius never intended to dispute the sovereignty of the coastal state in mare proximum – nowadays, the territorial sea – and he was mainly concerned with the legal regime of the ‘infinite ocean’ – nowadays, the high seas.Footnote 67 Surprisingly, his traditional opponents shared a similar view. For example, Welwood accepted that the liberty of navigation was beyond all controversy, and agreed to the principle of the complete freedom of the seas, so far as concerned the ‘main Sea or great Ocean’,Footnote 68 as did Selden, who admitted that ‘as to the free use of the sea . . . to prohibit innocent navigation would be contrary to the dictates of humanity’.Footnote 69 It is clear that both Grotius and his adversaries agreed on the basic premise that the open seas are free to navigate and to economically exploit, subject to various restrictions, such as measures in just war and against piracy,Footnote 70 whereas the sea belt adjacent to the coast – according to Grotius, the sea ‘visible from the shore’ – was susceptible to the coastal state's sovereignty. Consequently, serious doubts may rise on the actual extent of the theoretical dichotomy between mare liberum and mare clausum.Footnote 71
It is also significant to consider the grounds that the proponents of mare clausum put forward in order to justify their claims. Welwood, for example, enunciated that the usufruct of the adjacent sea belonged to the inhabitants of the coastal state, and that ‘one of the main reasons why that portion of the sea should pertain to the neighbouring state was the risk of the exhaustion of its fisheries from promiscuous use’.Footnote 72 In the same vein, Selden denied that the sea was inexhaustible from promiscuous use; on the contrary, ‘the sea may be made worse for him that owns it by reason of other men's fishing, navigation and commerce and less profit accrue from it’.Footnote 73 On a different footing, Freitas spoke of limitations to mare liberum dictated by the principle of effectiveness and of rights in the sea, which can be acquired in relation to the purpose of the preservation of the security of particular sea routes.Footnote 74 Vattel, writing in 1758, explained the grounds for exclusive rights in the coastal sea as follows: the uses of the sea near the coast render it very susceptible to appropriation, because it supplies fish, shells, pearls, and other things, and with respect to all these, its use is not inexhaustible; in addition, another reason for the extension of territorial dominion over the adjoining seas is the security and welfare of the state as well as the exercise of territorial jurisdiction.Footnote 75
In summary, the grounds invoked for assertion of sovereignty or of jurisdiction in mare proximum were, mainly, the protection and the non-exhaustion of fisheries as well as the security and the welfare of states. Interestingly, similar reasons existed for the interference with vessels on the high seas, namely the protection of international commerce and the preservation of order at seas with regard to piracy,Footnote 76 as well as the maintenance of security of states with the invocation of the principles of self-defence and self-help for justa causa seizures of vessels.
It is submitted that these grounds for mare clausum and for interference with freedom of navigation on the high seas still reflect the main grounds, first, for the extension of the functional jurisdiction of coastal states seaward and, second, for the permission of such interference on the high seas in present times. The protection of fisheries, the security and welfare of the coastal state, and the need to exercise territorial jurisdiction in a maritime zone adjacent to the shores were the main underpinnings of the gradual extension of this zone to three nautical miles and further to 12 nautical miles, of the recognition of police powers in the contiguous zone as well as of the establishment of exclusive fishing zones and of the EEZ.Footnote 77 The same grounds are also behind the adoption of the numerous boarding agreements since the nineteenth century: suffice to note the various treaties regarding high-seas fisheries (protection of fisheries), the US bilateral treaties for countersmuggling purposes (social welfare), and the Nyon Agreement of 1937 (piracy).
This does not mean, however, that, in stark contrast to the common conviction, it was mare clausum eventually that prevailed over mare liberum; rather, as was previously implied, these two theories have never been in real discord, but have coexisted and complemented each other. This was principally reflected in the consolidation of the territorial seas/high seas dichotomy, which in fact allowed both tendencies to be accommodated into the legal order of the oceans. Apart from that, it was even more patent in relation to the freedom of navigation and to the principle of non-interference on the high seas: on the one hand, the theory of mare liberum recognized, since its inception, exceptions to these principles, such as the right to interfere with vessels in wartime and in self-defence, as well as the right to seize vessels engaged in piracy. Thus, an ‘absolutely negative’ freedom of the high seas never existed, but it was a priori qualified and limited by similar policy grounds to those that underpinned the mare clausum claims. On the other hand, mare clausum never contested the thrust of the freedom of the seas, namely navigation on the high seas; they only purported to convey the coastal states’ legitimate concerns for the control of the adjacent maritime zones. These concerns, however, were never defined in strict geographical terms, but, being of a more general nature, they were gradually acknowledged as legitimate grounds for the coastal-state jurisdictional extension to the open seas as well as for the establishment of the right of visit.
Building on the foregoing insights, it is thus possible to contend that the various treaty and customary exceptions to the principle of non-interference on the high seas find their rationales in the above mare clausum concerns. The right of visit has always sought to materialize these mare clausum claims, serving as the ‘long arm’ of the latter in the open seas, especially when there was no corresponding maritime zone in place. The sole difference is that when these concerns were advanced then, they mostly expressed individualistic, or, to adopt the terminology of McDougal and Burke, ‘exclusive claims’ of states to maritime dominion.Footnote 78 In the last century, these claims have been ‘internationalized’, namely they have been perceived as ‘essentially inclusive’Footnote 79 by international society, in the sense of legitimate concerns shared not only by the states individually, but also by international society as a whole, consisting of both states and of other participants in the law-making process of the oceans.Footnote 80
It is apt here to refer to the authoritative Memorandum (1950), in which Gidel acknowledged that the predominant negative principle of the freedom of the seas could be modified, ‘dans deux directions: d'une part, “la conception positive de la solidarité qui à la base des relations internationales modernes”Footnote [81] substitute à l'idée de l'utilisation individualiste de la haute mer, l'idée que l'intérêt général exige au contraire une utilisation concertée’.Footnote 82 He linked then the adoption of the conventions permitting the right to visit on the high seas with this notion of general interest for the rational use of the high seas. Accordingly, he asserted that these conventions constitute an embryonic organization of the high seas, which reflects the common interest of states to utilize the high seas in conditions ‘excluant le scandale, le désordre, le gaspillage’.Footnote 83
These threats to the rudimentary organization of the oceans, namely ‘scandal, disorder and wastage’, give substance to the corresponding claims to ordre public, social welfare, and good use of the seas in peacetime. In addition, the claim to the security of states and of international society reflects the ground for interference with enemy and neutral merchant vessels in wartime. Accordingly, it is maintained that international society, having espoused these traditional state mare clausum concerns, has transformed them to positive assertions of ‘l'intérêt général’ in the contemporary legal order of the oceans.
In conclusion, the various cases of interferences on the high seas, both historical and contemporary, could be conceptualized and categorized as follows: at a first level, there are the cases of interference, which find their justification in the need to maintain the peace and security of states and of international society. At a second level, there are the cases of interference that aim to maintain a bon usage or the ‘internal order’ of the oceans, in the sense of a reasonable and non-abusive use of the freedoms of the seas without detriment to the ‘usufruct’ itself. Lastly, at a third level stand the interferences that pertain to the general welfare and the ordre public of states and of international society, which aim thus to maintain the ‘external order’ of the oceans. Each will be considered in turn in the ensuing paragraphs. It should also be mentioned that these levels or categories are not hermetically sealed or isolated, in the sense that each case of interference reflects solely the legitimate concerns of the respective category. On the contrary, there is a degree of permeation between these categories, which, however, does not repeal the above classification, based on the ratio juris of each claim.
Finally, it is apt to note here that this is not the first effort to categorize the grounds for interference on the high seas: apparently drawing inspiration from the work of Gidel, Olivier de Ferron put forward an analogous, but far from identical, classification, which, however, was neither historically substantiated nor comprehensive, since he limited his analysis to the peacetime conventional exceptions to the exclusivity principle.Footnote 84 In addition, R. Barnes furnishes a very insightful three-fold classification of public-interest orders in the construction of an account of the public function of property.Footnote 85 In his theory, first-order interests are all accounts of property seeking to guarantee a minimal level of subsistence, such as certain basic goods, namely air, water, food, and shelter. Second-order interests are those interests that secure social order per se, while third-order interests are those interests that are particular to a given society and reflect its collective aims or its fundamental values. It is apparent that the third-order public interests reflect the third category of the present thesis's claims to interference on the high seas; however, the general scope of this work considerably differs from the present thesis.
3.1. The claims for maintenance of international peace and security
As was observed, the principle of non-interference was never absolute according to Grotius; on the contrary, the right to interfere with foreign vessels in the oceans in the course of a just war between nations or even in the course of a ‘private just war’ in the case of self-help was never disputed.Footnote 86 While it is beyond the scope of the present enquiry to have regard to the parameters of ‘just war’ and ‘self-help’, it is significant, however, to stress that the intercourse of war at sea and the taking of lawful prizes were not the subject matter of warships or public vessels, but rather of duly commissioned privateers, whose only distinctive trait from pirates was the possession of letters of marque or letters of reprisals.Footnote 87 In the centuries to follow, both the belligerent right of visit and search on the high seas and the notion of maritime neutrality were gradually accepted and regulated not only by customary law, but also by various treaties, all of which have been predicated on the existence of war. In addition, it was always acknowledged that states had the right to visit and seize vessels in peacetime as a lawful exercise of the right of self-defence.Footnote 88
Moreover, states concluded international agreements providing for police measures on the high seas to control the trade in arms in certain regions. Reference is made to the 1919 St Germain ConventionFootnote 89 and to the 1925 Geneva Convention,Footnote 90 whose ratio juris was claimed to be, as cited by Gidel, ‘d'empêcher que les quantités considérables de munitions de guerre qui étaient accumulées dans les divers pays anciennement belligérants et qui étaient devenues tout à coup sans emploi, ne soient dispersées dans le monde et ne constituent un grand danger pour la paix générale’.Footnote 91 They provided for the right of visit by the state parties of vessels less than 500 tonnes in certain maritime zones in Africa, such as the Red Sea and the Gulf of Aden, in order to supervise the application of the prohibition in trade, but they never entered into force.Footnote 92
In the post-Second World War era, the advent of the UN Charter and of the system of collective security has enabled the Security Council to ‘internationalize’ the right of visit and search, in the sense that the Council has the power to authorize such measures not only in cases of existing armed conflicts, but also in cases of threats to international peace and security. Under this authority, the Security Council has identified various such threats, the averting of which may also engage the right of visit on the high seas. Of particular importance for the present enquiry are the threats of international terrorism and of WMD, which have already given rise to coercive measures, including interdiction of foreign shipping on the high seas.Footnote 93 Hence, in discharging its principal function under the UN Charter to address breaches and threats to international peace and security, the Council has effectively transformed exclusive claims for security at sea to ‘essentially inclusive ones’.Footnote 94
Accordingly, on the one hand, there has been a series of international and non-international armed conflicts, in which the belligerent right of visit has been employed. However, states have preferred to interdict vessels under the disguise of self-defence and not under the rubric of the laws of naval warfare. The latter occurred, for example, in the First Gulf War between Iran and Iraq (1980–88), in which there was an extensive exercise of the belligerent right of visit on the high seas. Neutral vessels were systematically stopped and boarded, mainly by Iranian forces, at the entrance of the Persian Gulf and eventually diverted and detained in Iranian ports.Footnote 95 In the twenty-first century, the most important armed conflict with significant naval dimensions was the military campaign of the United States against al Qaeda and the Taliban in Afghanistan. A component of ‘Operation Enduring Freedom’Footnote 96 was the visit of cargo ships suspected of carrying or providing support to al Qaeda.Footnote 97 ‘Operation Enduring Freedom’ has continued to operate long after the end of hostilities, with the goal of quelling any resistance by the remaining Taliban forces and of furthering the needs of the ‘Global War on Terrorism’.Footnote 98 In the same vein, reference could be made to the recent interdiction operations of the Israeli forces in the Gaza Strip in December 2008Footnote 99 as well as in May 2010.Footnote 100 Israeli Naval Forces had established since August 2008 a controversial exclusion zone or pacific blockade of the Gaza Strip,Footnote 101 which continues to be in force and has led to several interceptions of vessels on the high seas.Footnote 102
On the other hand, since the Second Gulf War, the Security Council has on many occasions authorized maritime interdiction in order to enforce embargoes pursuant to Article 41 of the UN Charter.Footnote 103 Maritime interdiction has also been part of the enforcement action that member states and other international organizations have been authorized to take in many cases of threats and breaches of international peace and security.Footnote 104 An example of such maritime enforcement operation under the auspices of the UN was in the Iraq–Kuwait War. Security Council Resolution 665 (1990) authorized ‘member States cooperating with the Government of Kuwait to use such measures commensurate to the specific circumstances as may be necessary . . . to halt all inward and outward maritime shipping’.Footnote 105 The phrase used in Resolution 665 quoted above became standard language for cases in which the SC wanted explicitly to authorize states to enforce an embargo at sea, such as against the former Yugoslavia or against Haiti.Footnote 106
In conclusion, it is submitted that the interference with foreign shipping both by states in an armed conflict and by states under the auspices of the Security Council corresponds to the need to maintain the peace and security of the legal order of the oceans. The common denominator or the common purpose in all the above instances is the maintenance of peace and security of the international community and a majore ad minus of the civitas maxima of the oceans. In view of that, it is not unlikely that the Council will, in the future, identify further threats to international peace and security, which might involve the adoption of coercive measures on the high seas. A potential candidate, in this vein, could be the scourge of the illicit trafficking in small arms, especially in the African continent.Footnote 107
3.2. The claims for protection of the bon usage of the high seas
Mare liberum, as was eventually codified in the Geneva Conventions and in LOSC, encompassed various different freedoms, such as the freedoms to navigate on the high seas, to fish, and to lay submarine cables. Each freedom, however, is susceptible to overexploitation or abuse, which might eventually endanger the existence of the freedom itself or destabilize the internal order of the high seas. It is worth recalling that both Welwood's and Selden's mare clausum arguments rested in part upon the premise that the wealth of the seas, mainly fisheries, was not inexhaustible and thus surveillance and control of the coastal state were required. Thus, fisheries were considered ‘common property natural resource’,Footnote 108 subject to property rights only once removed from the sea.Footnote 109 In the nineteenth century, even though the sovereignty of the coastal states to the mare proximum had already been firmly established, there were claims regarding the need to manage diminishing fish stocks. These claims took two forms: first, coastal-state authority to regulate fisheries has been extended seaward and, second, the first multilateral and bilateral treaties on the protection of high-seas fisheries were concluded, which provided for the right to interfere with vessels that violated the respective rules for the management and preservation of fisheries on the high seas.Footnote 110 This trend continued also in the last century, even though an EEZ of 200 nautical miles was recognized.
Accordingly, the pertinent international conventions, namely the 1958 Geneva Convention on Fishing and Conservation of Living Resources and, subsequently, the LOSC (Arts. 117–20) lay down a duty on interested states to co-operate in the management and conservation of high-seas fishery resources, making use, where appropriate, of international fishery commissions. According to Article 119(1)(a) of LOSC, the aim of such management should be ‘to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield’. However, the only way in which meaningful management of high-seas fisheries is possible is through international co-operation, especially through regional fisheries management organizations (‘RFMOs’).Footnote 111 An integral part of their operation is a scheme of joint international inspection and surveillance, under which an authorized inspector of one member may board and inspect a fishing vessel of any other member to see whether that vessel is complying with the RFMO's measures.Footnote 112 Such enforcement measures on the high seas are also provided by the 1995 UN Straddling Stocks Agreement, which is an implementation agreement of LOSC, namely it gives substance to the principles concerning the conservation and management of fish stocks set out in Parts V (EEZ) and VII (high seas) of LOSC.Footnote 113 At present, the most acute problem concerning the protection of high-seas fisheries is undoubtedly the practice of illegal, unreported, and unregulated (IUU) fishing.Footnote 114
There have also been claims for control and surveillance in the oceans in order to protect the other fundamental freedom of the high seas, namely the freedom of navigation, which is intertwined with jus communicationis, namely the right to communicate and a fortiori with the right to trade freely with other nations using the high-seas routes. The major threat to these freedoms historically has been piracy. Suffice to reiterate here Plutarch's comments on Pompey's expedition against the pirate states or to refer to the historical grounds for the English maritime ceremonial, which, according to Fulton, was to ‘enable the King's officers, who were there to maintain the security of navigation, to ascertain the true nature of the vessel, which they challenged, whether it was a peaceful trader or a pirate’.Footnote 115
In general, the concept of piracy is the most characteristic paradigm of the permeation between the three categories of the present theoretical framework, since, arguably, it fits also in the next category of the ordre public of states as well as in the previous of the threats to international peace and security. Nonetheless, it is submitted that it fits better in the present category, for the following reasons: first, the rationale behind its suppression was never the heinousness or the contra bona mores character of the acta pirata, but the pragmatic consideration of the protection of navigation and commerce on the high seas.Footnote 116 Furthermore, with the fall of the Barbary Pirates States and with the abolition of privateering in the nineteenth century, the oldest crime at sea ceased to bear the hallmark, inter alia, of a threat to the peace and security of states and be conflated with just war or with self-help measures. It continued to be, principally, crimen juris gentium, whose suppression purported to protect freedom of navigation and commerce in the oceans.
Recently, the dividing line with the category of peace and security was blurred again, due to the involvement of the Security Council in the repression of piracy and armed robbery off Somalia.Footnote 117 Suffice to underscore in this respect that the Security Council, in all its relevant resolutions, refrained from qualifying piracy as a ‘threat to the peace and security’, but it linked it with the already existing ‘threat to the peace’ in Somalia.Footnote 118 In any event, it is undisputed that piracy off the Somali coasts and in the broader area of the Western Indian Ocean constitutes a significant threat to international maritime commerce.Footnote 119 This extraordinary growth of piracy in recent years has led to a multipronged international response, including the employment of naval assets of several states in the region with a view to suppressing this scourge. Suffice it to note that the European Union has launched its first maritime operation, namely EUNAVFOR Operation Atalanta, to co-ordinate the European naval response to piracy and to protect international shipping in the region.Footnote 120 It goes without saying that the visit and seizure of vessels suspected of being engaged in piracy have been the primary objectives of these operations.Footnote 121
In addition, there is the freedom of laying submarine cables that has been conceived by states and by international society as in need of protection. The freedom of laying submarine cables as such was first enunciated in the Geneva Convention, but there had already been agreements between states regulating this activity since the nineteenth century.Footnote 122 The basic multilateral treaty in this respect, which is still in force, namely the 1884 Paris Convention, stipulated that warships of all signatory powers have a right to stop and verify the nationality of merchant ships of all nations, which are suspected of having infringed the regulations of the treaty.Footnote 123 As it was drafted to apply also vis-à-vis third states, the interference on the high seas was limited to the right of approach and d'enquête du pavilion, which, however, involved the right to board, but not to search, the vessel.Footnote 124
Further, there is certainly merit in discussing also the question of the protection of the marine environment in the present framework.Footnote 125 As was discussed also in respect of piracy, this issue could equally be classified under the next heading qua an inclusive claim for the maintenance of the ordre public of international society. However, it is argued that even though there is no such freedom on the high seas, the protection and preservation of the marine environment fit neatly in the current discourse concerning the bon usage of the oceans, since the pollution of oceans may have deleterious effects in the ‘usufruct’ of the high seas and may thwart the states and the international society from the bon usage of the oceans.
Accordingly, since the second half of the twentieth century, there have been increasing claims for interference with vessels that intentionally and severely pollute the marine environment, not only in the coastal states’ jurisdictional zones, but also on the high seas. In the aftermath of the Torrey Canyon incident in 1967,Footnote 126 the 1969 Brussels Convention was adopted, which granted to state parties, subject to consultation with other affected states, the right to ‘take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty’.Footnote 127 This, of course, entails that in the case of such a casualty on the high seas, the affected states may interfere with the vessel concerned without the consent of the flag state. It is argued that the legal basis for such interference lies not only with the primary rule of the above provision, but also with the secondary rule of state of necessity.Footnote 128
A final remark would be that it is in the present category that the stateless vessels’ ground for interference should be included.Footnote 129 The reason for this is simply that the maintenance of a minimum public order on the oceans, including the protection of the high-seas freedoms as well as the preservation of a bon usage of the oceans, is postulated on the principle that all the vessels navigating on the high seas have the nationality of a state, which is, in principle, responsible for this function. In the absence of a flag state, this function cannot be discharged and a fortiori the internal order of the high seas is in jeopardy; therefore, the public vessels of all states have the authority to visit such vessels.
In conclusion, there has been an obvious practice of states to criminalize and suppress practices on the high seas, which have as a consequence the gaspillage or the abuse of the wealth of the oceans as well as the endangerment of the freedoms themselves and thus of the ‘internal’ order of the oceans. The latter is also closely linked to the idea of ‘ocean governance’; as Rayfuse and Warner note, ‘building on the underlying concept of “international public trusteeship” it is possible to identify a range of mechanisms and tools that might be adopted by the international community to address the shortcomings that have been identified in high seas governance’.Footnote 130 Under the present theoretical paradigm, the most significant tool is the interference with foreign navigation on the high seas, which complements the establishment of functional zones, such as the EEZ.
Against this background, the problems of irregular fishing, piracy jure gentium, the protection of the submarine cables as well as marine pollution were canvassed. It is submitted that even though they could also fit in the other two categories, they do share the common ratio juris of the present category, namely the protection of the freedoms of the high seas and hence of the internal order of the oceans. In this vein, there could be other freedoms of the high seas, which would be in need of protection, such as the freedom to construct artificial islands or the freedom of marine research. Finally, in the future, there might be more comprehensive regulations, including the right of visit, for the protection of the area and its resources.Footnote 131
3.3. The claims for maintenance of the ordre public of the states and of international society
The last category of the traditional mare clausum claims and of the grounds for interference with vessels on the high seas pertains to the maintenance of the social welfare and the ordre public of states and of international society. Gentillis was the first to posit, very perceptively, that restrictions of imports, of immigration, and exports in a zone up to 100 nautical miles, in which the coastal state exerts jurisdiction, are justified for the sake of the safety and morals of people.Footnote 132 Later, Vattel based the extension of coastal- state authority on the need to protect the ‘social welfare’ of that state and to exert territorial jurisdiction over certain harmful activities. These claims gained currency in international thought and practice and eventually led to the genesis of another maritime zone, adjacent to the territorial waters, the contiguous zone, where the coastal states enjoyed certain police powers for the prevention and punishment of the infringement of their customs, fiscal, sanitary, and immigration regulations.Footnote 133
Simultaneously, they gave rise to assertions for interference with foreign navigation on the high seas for similar reasons, such as the enforcement of customs and anti-smuggling regulations and of prohibitions relating to socially and politically unsound activities. An example of the former was the series of bilateral agreements that the United States concluded in order to enforce the 1922 ‘Volstead Act’, referred to as the ‘Liquor Treaties’,Footnote 134 while of the latter was the British efforts towards the abolition of the slave trade,Footnote 135 leading to the adoption of numerous boarding agreements.Footnote 136 With the gradual development of international society, these claims were, accordingly, ‘internationalized’ and were given the imprimatur of international regulations for the maintenance of the ordre public and the bones mores of international society. Multilateral treaties were concluded that elevated some of these prescriptions to the apex of the normative pyramid, qua peremptory norms of the international legal order.Footnote 137 Thus, for example, the prohibition of the slave trade was characterized as a rule of jus cogens and the warships of all states could visit vessels engaged in such activity and free the persons on board.Footnote 138
In similar vein, the 1988 Vienna Convention proscribed the illicit trafficking of narcotic drugs and other psychotropic substances and the right to visit suspect vessels was accorded to the state parties. The Vienna Convention was the first of a series of regional and bilateral boarding agreements, which were subsequently concluded with a view to protecting the public health and social welfare of states and of international society from the scourge of narcotic drugs. Another multilateral convention providing for the interdiction of drug-smuggling vessels is the 2003 Caribbean Regional Agreement, which has very recently entered into force.Footnote 139 All these boarding agreements afford the legal basis for numerous interdiction operations on the high seas to counter illicit trafficking of narcotic drugs.Footnote 140
In addition, a novel problem that has come forcefully to the forefront, and that directly challenges the social fabric and the ordre public of states, is the smuggling of illicit migrants from underdeveloped and developing countries, mainly to Europe, the United States, and Australia. In response, it has been already stated that states and international society have adopted various anti-smuggling measures, including ‘interception’ on the high seas.Footnote 141 It is also clear that the visit of vessels for ‘unauthorised broadcasting’ under Article 110 of LOSC fits neatly in the present category.Footnote 142
The interferences with foreign shipping in the present context follow a similar pattern: in the nineteenth century and in the early twentieth century, there was interference against the smuggling of alcohol and of other products and for the abolition of the trade of slaves, while, currently, such interference is accorded against the smuggling of narcotic drugs and for the abolition of the transfer of illicit migrants, respectively. It is very characteristic that both the assertions in relation to the slave trade and with regard to the smuggling of migrants were phenomenically premised upon moral and humanitarian considerations; however, as it was observed in relation to the slave trade and will be demonstrated in respect of smuggling of migrants, the rationale behind these assertions was sheer public policy considerations.Footnote 143
Behind the above treaties proscribing such activities and providing for the right of visit stand the fundamental rationales of the social welfare and of the ordre public of states and of international society in general;Footnote 144 the latter notions may, however, vary, according to the perceptions of these values in each epoch.Footnote 145 This entails that the classification of the relevant cases of interference under the present heading is not permanent, but evolutionary and dynamic; thus, this classification may alter, since it is contingent upon the changing values of each epoch and of each society. For example, the traffic of narcotic drugs may be considered less deleterious and thus be declassified as a threat to the ordre public of international society, whereas the protection of the marine environment may attain a greater prominence for the maintenance of the welfare of international society. The decisive factor would be how the latter would perceive the relevant concerns of the states individually and whether it would ‘internationalize’ them by proscribing the respective activity in a universal treaty and, more importantly, by providing for the right of visit in this regard. Again, it bears reiterating that whilst each category of interests is conceptually discreet, it is yet closely related to the other.
This notwithstanding, the fundamentum divisionis of the present category from the previous relating to the international peace and security and to the protection of the freedoms of the seas lies with the fact that the present claims are extrinsically imposed on the organization of the oceans, reflecting thus external-order considerations that do not emanate from ocean activities as such. On the contrary, the previous category pertains exclusively to such activities and thus purports to maintain the internal order of the oceans.
4. Interference in the contemporary legal order of the high seas: concluding remarks
As the history of the freedom of the seas well attests, the theories of mare liberum and of mare clausum were never antithetical or mutually exclusive, especially as far as the freedom of navigation on the high seas was concerned. On the contrary, there was consensus on the freedom of vessels to navigate in the vast and immense oceans, subject to certain restrictions, as well as consensus on the grounds that dictated the sovereignty or jurisdiction of the coastal state over the mare proximum. In the subsequent centuries, the claims to mare clausum, advanced in the height of the ‘Battle of the Books’, also gave substance to the claims for the creation of various functional zones as well as for further jurisdiction on the high seas, in the sense not of sovereign rights, but of the right of visit for certain purposes. Thus, more instances of interference with foreign vessels beyond zones of national jurisdiction were gradually recognized in order to accommodate these mare clausum claims. In addition, the latter claims were legally transformed, namely from purely national claims to their acknowledgement as claims of the nascent international society. Eventually, they became the positive underpinnings of the predominantly negative legal order of the oceans, in the Gidelian sense of non-interference and of the exclusivity of flag-state jurisdiction. This exclusivity principle was positively qualified in a threefold sense: to accommodate claims for the maintenance of international peace and security, for the protection of the bon usage of the oceans, and for the maintenance of the ordre public of international society.
This classification has the obvious merit that it conceptualizes, categorizes, the various ostensibly independent grounds for interference on the high seas, and thus conduces to the configuration of a coherent legal order of the oceans in the twenty-first century. It is a rather intuitive tool to comprehend the interrelationship between these grounds. Finally, has the current extensive practice of interference with foreign shipping on the high seas destabilized or eroded mare liberum in the twenty-first century? The reply to this question flows easily from the foregoing analysis: the freedom of the high seas was never an absolute principle; it has always been qualified by mare clausum claims for jurisdiction and for police powers on the high seas, which served certain firmly established and coherent purposes, namely the maintenance of peace and security, the protection of the freedoms of the high seas, and the maintenance of the ordre public of international society. Contemporary practices and interferences do not deviate from this scheme; on the contrary, they share the same purposes and they put forward similar legal justifications. Indeed, it may be concluded that the recent practice has not brought about substantial changes to the legal order of the oceans, in the sense of curtailing the fundamental tenet of the exclusivity of flag-state jurisdiction. It is also doubtful whether such change will occur in the near future, since these rationales are well embedded in the legal order of the oceans.
