Outpaced by events: Our ageing law of the sea

The road to UNCLOS

Dutch jurist Hugo Grotius is generally credited for the legal justification of the ‘freedom of the seas’ doctrine in his 1609 book Mare Liberum, or Freedom of the Seas. ¹ In it, Grotius discusses then-current uses of the ocean for trade and harvesting of resources, and determines that no state should be allowed to lay claim to parts of the ocean or to trade routes because no one ship or state’s use of marine resources would impact any other ship or state’s ability to utilize those same resources themselves. ² It was a viewpoint that was both consistent with earlier Greco-Roman tradition, ³ as well as reflecting the then-common view that the ocean’s natural bounties were inexhaustible. Since one ship’s use of a trade route did not impact another’s later use of that same route, and since one fishing vessel could not empty the sea of fish, there was no need to nationalize these resources. They should instead remain free to all. Such a viewpoint was highly convenient for the Dutch, as it protected their right to continue to ply trade routes they had not originally discovered, but the argument was sufficiently convincing as to eventually find widespread acceptance. The only modification that would be made over the next 300 years was the addition of a territorial sea that was three nautical miles wide. This articulation of the need for coastal control for security purposes was attributed to another Dutch jurist, Cornelius van Bynkershoek. In practice, it became known as the ‘cannon-shot rule’ – states could exercise control over the stretch of water as far as a cannon could shoot, generally calculated at three nautical miles in distance.

By the twentieth century, however, the system was beginning to fray. Technological advances in fishing, including the development of engines to allow travel further from the coast, freezer technology that would allow for the storage of fish for longer time periods, and better ability to pinpoint fish locations, meant that fishermen were starting to notice a decline in their catches. By the 1930s, fishing productivity had peaked; fishers were spending longer hours to catch fewer and smaller fish. ⁴ At the same time, people were also discovering ways to extract non-living resources from the continental shelf. Because of this, some states began taking measures in the 1940s to ensure that their state would retain access to these resources. In the Truman Doctrine of 1945, the United States made claims to the resources of their continental shelf. This was very clearly an attempt to protect resources without invalidating the ‘freedom of the seas’ regime; the United States, as a wealthy state with a blue water navy, saw the Grotian regime as beneficial to its interests. But other states, especially ones that lacked the broad, gently sloping continental shelves of the United States, saw things differently. Thus, in 1947, Peru and Chile made claim to control the waters up to 200 nautical miles off their coasts. These states had narrow, steep continental shelves, and thus chose instead to focus on a particular distance and to include the living resources of the waters in their claim.

This latter claim was completely untenable under the ‘freedom of the seas’ regime, and was seen as controversial at best and illegal at worst. But Peru and Chile would not long be the only states to argue for an increased control over coastal waters. In 1950, Ecuador would echo their claim to 200 nautical miles. Other, more cautious states would not push as far – Iceland made a more modest claim in 1958 to control over fisheries out to 12 nautical miles. Yet even this more limited extension was rejected vociferously by states which benefited from the Grotian regime; the United Kingdom, whose fishers plied the waters near Iceland, insisted on Iceland allowing access to all in these waters, kicking off the first of three Cod Wars over Iceland’s increasing claims to control over fisheries further off their coasts.

It was obvious that the regime was falling apart. At the same time, states sought to utilize the then-new United Nations organization to solve the maritime problems caused by the fracturing of support for the Grotian regime. The first United Nations Conference for the Law of the Sea was held in 1958, and resulted in four different international legal conventions. However, none of these directly addressed the difficult problem of determining an acceptable width for the territorial sea (or other mechanism of state control of coastal waters), leading to a call for a second conference on the topic. The second United Nations Conference for the Law of the Sea met in 1960 and quickly concluded without producing any new treaties, unfortunately falling victim to Cold-War politics. The necessary overhaul of the international maritime legal regime thus had to wait for the third United Nations Conference for the Law of the Sea, which convened in 1973 and would eventually produce the finalized treaty, UNCLOS.

UNCLOS, as a treaty, was an omnibus meant to replace the faltering Grotian regime. But it was also a serious political endeavor involving over 100 states in the negotiating process. It is unsurprising that UNCLOS, like the legal conventions produced by the first conference in 1958, had a few areas that were left vague in order to produce agreement between these disparate actors. Despite this, UNCLOS was heralded as a profound success, creating a new and complicated regime that served as a successful compromise between allowing states to have control over oceanic resources while simultaneously preserving many important aspects of open access to ships and freedom of the high seas.

UNCLOS was opened for signature upon completion in 1982, and gathered enough ratifications to enter into force in 1994. Many developed world states did not ratify until the late 1990s and 2000s, and the United States still remains a notable exception, having still not ratified the convention despite accepting the majority of its provisions as customary international law. The hope was that, even if the treaty was not a perfect document, it would serve well to prevent the kind of disagreements seen between states over the exact limit of maritime rights that proved so pernicious prior to its completion. In many ways, UNCLOS has indeed served this purpose well. In others, however, the cracks would soon begin to show.

Violence at sea: Protecting ships

UNCLOS devoted only a few of its 320 articles to the problem of violence at sea, focusing entirely on the most traditional form: piracy. At the time UNCLOS was being drafted, piracy was widely seen as a problem of the past, and indeed the text of its primary article defining piracy, Article 101, was lifted almost directly from the 1958 Convention on the High Seas.

UNCLOS defines piracy as follows:

Article 101

Definition of piracy

Piracy consists of any of the following acts:

(a) 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:

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). ⁵

This is a very narrow definition, restricting the definition of piracy in four major ways. ⁶ Piracy, under UNCLOS, must be for private ends, which is generally believed to exclude terrorist activity (which has a political end). It must involve two ships or aircraft, excluding mutiny, hijacking, or attacks from the coast on a single ship/aircraft. It must take place outside state jurisdiction, meaning at least 12 nautical miles from shore. And lastly, it is unclear whether pirates could effectively escape by moving back within that 12-nautical-mile territorial sea, and thus leaving the high seas behind.

The strictness of this definition combined with the exclusion of other forms of violence at sea created a gap in the treaty that would quickly become apparent. In 1985, the hijacking of the Achille Lauro would illustrate the problems caused by a lack of specification about crimes of violence at sea. The Achille Lauro was an Italian ship hijacked by Palestinian militants off the coast of Egypt. The ship held dozens of American citizens, one of whom was killed in the hijacking. The militants eventually surrendered themselves to Egypt, who put them on a plane as per an agreement to surrender them to the Palestinian Liberation Organization, then in exile in Tunisia. ⁷ This plane was intercepted by United States fighter jets and diverted to Italy (apparently after being refused permission to land in Tunis).

The difficulty came after the landing: who had jurisdiction over the accused terrorists/hijackers? Though the crime took place on a ship, it most definitely did not fit the UNCLOS definition of piracy, as it involved only one ship, not two, and the crime committed was not done for ‘private ends’. Since this crime was not one of piracy, then there was no claim to universal jurisdiction under UNCLOS. Universal jurisdiction would allow any state the right to try, prosecute and punish the offenders if found guilty, and due to its disruptive nature piracy has always been a crime of universal jurisdiction. But if this was not piracy, then it was something else – and universal jurisdiction is allowed only rarely.

The tragedy of the Achille Lauro could be handled in more traditional ways – the Italians kept jurisdiction by virtue of the crime having been committed on an Italian-flagged ship and thus Italian territory under the law. But the primary victim of the terrorists was an American citizen murdered for his Jewish heritage, and the US had demanded jurisdiction over the terrorists as well. The US had a claim to this jurisdiction under the passive personality principle, which gives states jurisdiction in cases based on the nationality of the victim(s) of a crime, but this is a weaker claim than territorial jurisdiction, which was held by Italy. However, the US itself did not recognize passive personality principle as an effective claim to jurisdiction. ⁸ The US also asserted jurisdiction by claiming the attack was an act of piracy, a position not justifiable under international law and likely not under US domestic law either. ⁹

The Achille Lauro incident thus showcased a new kind of violence at sea – maritime terrorism. It did not fall under traditional laws against piracy or mutiny, but was clearly an international crime of some importance that yet was left out of UNCLOS. The solution was to draft a new treaty to deal with the problem: the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. ¹⁰ The SUA Convention, as it is usually known, was finalized in 1988 and criminalized acts that endangered ships and their passengers under international law, and also required either extradition or prosecution of those who committed those acts.

In the 2000s, another problem with the UNCLOS consideration of violence at sea would create difficulties for global shipping and trade: a resurgence in piracy and armed robbery at sea (or armed robbery on ships). The difference between the two is one of simple geography; piracy is a crime that takes place on the high seas, as per the definition in UNCLOS, and armed robbery at sea happens within state territorial waters. Piracy, when UNCLOS was written, was assumed to be something of a non-issue, as piracy had not been a significant problem for states in years. Likewise, armed robbery at sea was given no consideration at all, as by definition it happens within a state’s jurisdiction and is thus not an international issue. However, the rise in pirate/armed robbery attacks first in Southeast Asia around the Straits of Malacca, then later also in the Horn of Africa around Somalia and in the Gulf of Guinea near Nigeria, proved that perhaps a consideration of these crimes merited more attention than they had received in the negotiations for UNCLOS.

The impact of piracy/armed robbery at sea is an international issue: 90 per cent of all global trade currently travels by sea. ¹¹ And for geographic and strategic reasons, some areas are more important than others; for example, about 27 per cent of all maritime-carried oil travelled through the Straits of Malacca in 2013. ¹² This is an international problem, but one for which UNCLOS does not offer a particularly good solution.

Somalia, a failed state with no capability to protect its waters, was forced to continually request/allow the United Nations Security Council to violate its own sovereignty and fight pirates in Somali waters (most recently in Resolution 2246). ¹³ The resulting international patrols have helped to greatly reduce piracy in the Horn of Africa by preventing Somali-based attacks, but at a very high financial cost. ¹⁴ However, in other areas the situation is more complicated. Neither Nigeria nor the states bordering the Straits of Malacca (Singapore, Malaysia, and Indonesia) are failed states, and such violations of sovereignty cannot be justified in the same manner as in the case of Somalia. Piracy and armed robbery at sea thus continue to be addressed piecemeal through efforts to provide international help outside of UNCLOS and through domestic efforts on the part of states where piracy has proven problematic. And when these are ineffective, piracy and armed robbery at sea continue to grow.

Violence at sea: Protecting offshore energy

The problems of piracy, armed robbery at sea, maritime terrorism and other unlawful acts were not new to the 1980s and beyond. Piracy was, after all, the original crime of universal jurisdiction – pirates are hostis humani generis, enemies of all mankind. It was simply that the drafters of UNCLOS did not foresee that they would become major problems in the modern world, and had failed to account for them accordingly. But another area that they missed was a genuinely new problem, if one that is related to the problem of violence against ships, and that is violence against platforms at sea. Probably the most common of this type of platform are offshore energy installations, mainly oil and gas rigs and platforms, but increasingly including offshore wind turbines.

There are two dates for the beginning of the era of offshore oil that are usually cited. One is the first offshore activity in Summerland, California, in 1896, which involved docks that hosted oil rigs. ¹⁵ More commonly, the offshore oil and gas industry is usually dated to 1947, when the first offshore platform that could operate out of sight of land went into service. ¹⁶ Regardless of which event is the more momentous in the history of this now multi-billion-dollar industry, there has been an inexorable growth in the ability to drill and extract from deeper waters throughout the twentieth century, continuing unabated into the twenty-first century.

This ability to access deeper water, however, then also leads to rigs/platforms moving further from shore and thus coastal protection. This has rendered these platforms more vulnerable to violence at sea. For example, the recent increase in piracy/armed robbery at sea in the Gulf of Guinea, off the coast of Nigeria, has placed offshore installations there at risk, as well as their supply ships.

This is ironic in some ways, because production had moved offshore in part because of the risk of land-based rebels in the Nigerian Delta, who targeted pipelines for oil theft. Offshore oil had been seen as safer, but this is increasingly becoming a problematic distinction.

Under UNCLOS, what should we consider an attack by a ship against an offshore platform? As stated above, Article 101 has a very strict definition of piracy, but it is conceivable that such an attack could meet it. If a platform is located on the high seas (further than 12 nautical miles from shore) and is classified as a ‘ship’, then theoretically a state could apply the UNCLOS definition of piracy to such attacks. This is possible only because UNCLOS does not define what a ‘ship’ is. ¹⁷ However, not all offshore platforms are going to meet the qualification of ‘ship’, so this is unlikely to prove helpful for combating these kinds of illegal acts under international law. A better reading of UNCLOS would consider these structures to be classified under Article 60, which considers ‘installations and structures’ created to exploit the resources of the seabed, living and non-living. ¹⁸ That article, though, was meant to answer the question of whether such platforms deserved a territorial sea, and not to deal with problems of crime or violence.

The SUA Convention detailed above was designed to cover acts not included in UNCLOS. Though its primary goal was not to consider offshore platforms, in 1988 the ‘Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf’ was added. ¹⁹ This addition to the SUA Convention renders attacks against fixed platforms an offence under international law and establishes jurisdiction for state prosecution. Article 1(3) of the 2005 update uses the term ‘fixed platform’ to mean ‘an artificial island, installation or structure permanently attached to the sea-bed for the purpose of exploration or exploitation of resources or for other economic purposes’. ²⁰

Unfortunately, this definition is highly outdated. Today, many offshore drilling operations use dynamic positioning, a system that allows a ship or platform to hold an exact position without needing to be fixed to the seabed. Dynamic positioning was just beginning when UNCLOS was being negotiated in the 1970s, and did not really take off until the 1980s. Today dynamic positioning is essential on drillships, and used on many offshore platforms. It has allowed for drilling in deep water and ultra-deep water; while no fixed definitions of these terms exist, deep water is almost always above 1000 feet of water, and ultra-deep water is always above 5000 feet of water. Today’s offshore oil and gas industry can drill in over 10,000 feet of water. In these cases, fixing a platform or ship to the seabed, even temporarily, is relatively impractical.

So, are attacks on these vessels/platforms piracy or unlawful acts? The answer to this has mostly been left up to state law. ²¹ UNCLOS does not provide enough information to determine for certain whether such vessels are likely to be considered ‘ships’ and thus subject to Article 101 or ‘artificial islands’ as mentioned in Article 60. The SUA Convention’s 2005 Protocol was an attempt to clarify the status of these structures, but has also fallen short.

Conclusion

UNCLOS was a response to the failure of the ‘freedom of the seas’ doctrine, which guided international maritime law for over 300 years. The drafters of UNCLOS were probably well aware of the cultural and technological changes that prompted the need for a new ocean regime, and the final version of the treaty was meant to act as an omnibus to guide all aspects of international maritime law. And yet, in many ways, the treaty has fallen short. The discussion above on piracy, armed robbery at sea, and other unlawful acts indicated that the drafters failed to consider the need to better define issues of ancient crimes, and the discussion on offshore energy platforms shows that they likewise failed to predict the impact of important technological changes on future concerns as well.

In many ways, this is understandable. No individual or group has ever consistently shown talent at predicting the future, and UNCLOS should not be held to a higher standard than any other political action. However, the failure of a treaty whose existence was prompted by technological change to predict the likelihood of future impacts of current trends is something that is important to consider, especially when thinking about the overall impact of the treaty itself. UNCLOS has proven itself to be a success, even with these flaws. Will it continue to be so in the future? Can we continue to paper over weaknesses by drafting other treaties, like the SUA Convention, to address them?

This latter question is particularly important today. The UN General Assembly has called for a new ocean treaty, consistent with UNCLOS, to address another area that UNCLOS failed to cover: Biodiversity Beyond National Jurisdictions (BBNJ). UNCLOS was not enough to protect the overall marine ecosystem; the dividing of the ocean commons into Exclusive Economic Zones (EEZs) still left much international waters to be overexploited. However, if the BBNJ treaty, set to begin negotiations in 2018, does not learn from the mistakes made in UNCLOS’s failures to predict major changes and address the likely future as well as the present, it too will eventually fall short. Understanding why UNCLOS has these weaknesses will thus strengthen the BBNJ treaty, as well as other future ocean treaties, and perhaps allow the new ocean regime to last as long as the previous one.