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The Right of Visit on the High Seas in a Theoretical Perspective: Mare Liberum versus Mare Clausum Revisited

Published online by Cambridge University Press:  11 February 2011

EFTHYMIOS PAPASTAVRIDIS
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Abstract

The present article discusses the historical and theoretical parameters of the right of visit on the high seas. This right is considered the most significant exception to the fundamental principle of the freedom of the high seas, which is conceptualized mainly as of a negative nature, namely as ‘the prohibition of interference in peacetime by ships flying one national flag with ships flying the flag of other nationalities’. This prohibition is arguably challenged by the recent extensive practice of interdiction of vessels on the high seas to counter threats such as international terrorism and transnational organized crime at sea. Accordingly, the historical claims to the freedom of the seas and the celebrated controversy between mare liberum and mare clausum are canvassed. Drawing valuable insights from this historical survey, it is 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.

Keywords

freedom of navigationhigh seasmare liberummaritime interdictionright of visit
Type
ARTICLES
Information
Leiden Journal of International Law , Volume 24 , Issue 1 , March 2011 , pp. 45 - 69
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 Memorandum on the Regime of the High Seas, by the Secretariat, 14 July 1950, UN Doc. A/CN.4/32 (UN High Seas Memorandum), reprinted in (1950-II) Yearbook of the International Law Commission 67, at 69 (translation). This memorandum is believed to be the work of Gilbert Gidel (further work by Gidel is also cited infra note 25).

2 See generally D. P. O'Connell, The International Law of the Sea, Vol. II (ed. I. A. Shearer) (1984), 796; R. Jennings and A. Watts, Oppenheim's International Law (1992), 737.

3 The principle was famously given judicial imprimatur in the dictum of Lord Stowell in the Le Louis case: ‘all nations being equal all have an equal right to the uninterrupted use of the unappropriated parts of the oceans for their navigation. In places where no local authority exists, where the subjects of all States meet upon a footing of entire equality and independence, no one State, or any of its subjects, has a right to assume or exercise authority over the subjects of another’: Le Louis (1817) 2 Dods. 210, at 243. See also The Marianna Flora, 24 US (11 Wheat.) (1826), 42.

4 R. Churchill and A. V. Lowe, The Law of the Sea (1999), 204. The Latin maxim mare liberum is famously ascribed to Hugo Grotius and his treatise Mare Liberum (1609), discussed further below: see infra note 35. Cf. however, the relevant comments of Jennings and Watts, supra note 2, at 720.

5 PSI is described on the website of the US Department of State as ‘a global effort that aims to stop trafficking of weapons of mass destruction (WMD), their delivery systems, and related materials to and from states and non-state actors of proliferation concern’: see www.state.gov/t/isn/c10390.htm.

6 For further information regarding FRONTEX, see its website: www.frontex.europa.eu. See also generally R. Weinzierl and U. Lisson, Border Management and Human Rights: A Study of EU Law and the Law of the Sea (2007) and Papastavridis, E., ‘Fortress Europe and FRONTEX: Within or Without International Law?’, (2010) 79 Nordic Journal of International Law 75CrossRefGoogle Scholar.

7 Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, IMO Doc. LEG/CONF.15/21 (2005), available on the website of the US Department of State at www.state.gov/t/isn/trty/81727.htm. As at 5 October 2010, the Protocol had 16 contracting states: see the list of states parties available at www.imo.org/About/Conventions/StatusOfConventions/Documents/Status%20of%20Conventions%202010.pdf.

8 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2241 UNTS 507 (entered into force 28 January 2004) (Smuggling Protocol). As at 30 August 2010, the Smuggling Protocol has 124 state parties: see http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-b&chapter=18&lang=en.

9 On the issue of functional jurisdiction in the maritime domain and its contemporary challenges, see generally M. Gavouneli, Functional Jurisdiction in the Law of the Sea (2007).

10 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 397 (entered into force 16 November 1994). As at 1 June 2010, LOSC has 160 parties, including the EC: see the list of states parties available via the website of the UN at www.un.org/Depts/los/reference_files/status2010.pdf.

11 Cf. UN High Seas Memorandum, supra note 1, para. 26.

12 See generally M. McDougal and W. Burke, The Public Order of the Oceans (1962).

13 On the notion of ocean governance, see, e.g., the contributions by various authors in the symposium ‘International Ocean Governance in the 21st Century: Perspectives from the IUCN Commission on Environmental Law's Specialist Group on Oceans, Coasts and Coral Reefs’, (2008) 23 International Journal of Marine and Coastal Law, beginning at 385; and Y. Tanaka, A Dual Approach to Ocean Governance: The Case of Zonal and Integrated Management in International Law of the Sea (2008).

14 See generally Churchill and Lowe, supra note 4. On the particular principles, see, e.g., D. Nelson, ‘The Development of the Legal Regime of High Seas Fisheries’, in A. Boyle and D. Freestone (eds.), International Law and Sustainable Development (2001), 119; C. Redgwell, ‘From Permission to Prohibition: The 1982 Convention on the Law of the Sea and the Protection of the Marine Environment’, in D. Freestone and R. Barnes (eds.), The Law of the Sea: Progress and Prospects (2006), 180.

15 On the notion of Grundnorm, see H. Kelsen, Pure Theory of Law (trans. and ed. M. Knight) (1970).

16 On the freedom of the seas in antiquity, see P. Potter, The Freedom of the Seas in History, Law and Politics (1924), 11–35 and the further materials cited therein.

17 Justinian, Institutes, II, 1, 1, cited in Potter, supra note 16, at 25.

18 Carthage, the Italian states preceding Rome, and Rome itself all attempted to secure – and definitely claimed – maritime dominion: Potter, supra note 16, at 27.

19 Potter, supra note 16, at 34. On the ancient history of piracy, see V. Pella, ‘La répression de la piraterie’, (1926/V) 15 RCADI 149, at 151. See also generally P. Gosse, The History of Piracy (1946).

20 Potter, supra note 16, at 35.

21 R. Anand, Origin and Development of the Law of the Sea: The History of International Law Revisited (1983), 84; T. Fulton, The Sovereignty of the Sea (1911), 30.

22 Potter, supra note 16, at 41.

23 For example, the British expanded their rule into the ‘Oceanus Britannicus’ and they gradually established the celebrated ‘sea ceremonial’. This refers to the obligation of foreign vessels to salute the British flag in the North Sea. As Colombos states, ‘the right to a salute assumed a considerable importance in the sixteenth and seventeenth centuries as establishing the rank and precedency due to England and the cosequent recognition by the other States of the King's right of sovereignty in the British Seas. Numerous instances are recorded of foreign warships being forced to salute the British flag in the North Sea’: C. Colombos, International Law of the Sea (1967), 52; J. Verzijl, International Law in Historical Perspective, Vol. IV (1971), 10.

24 W. Grewe, The Epochs of International Law (transl. and rev. M. Byers) (2000), 257.

25 G. Gidel, Le droit de la mer, Vol. I (1932), 202; Colombos, supra note 23, at 34.

26 The words of Sir Walter Raleigh encapsulated perfectly the British interests in this period: ‘Whosoever commands the seas, commands the trade; whosoever commands the trade of the world, commands the riches of the world and consequently the world itself’, cited in Fulton, supra note 21, at 136.

27 Often quoted in this context is the reply of Queen Elizabeth I to Don Bernadino de Mendoza, the Spanish envoy to London, in 1580: ‘The use of sea and air is common to all; neither can any title to ocean belong to any people or private men’, cited in T. Walker, A History of the Law of Nations, Vol. I (1899), at 161.

28 These claims manifested themselves through prohibitions issued by the Danish kings against fishing in the waters claimed: Fulton, supra note 21, at 108–11.

29 It was Scottish fishing interests in particular that provided the impetus for this abrupt change in policy regarding the freedom of the seas at the beginning of the Stuart reign: Grewe, supra note 24, at 265.

30 The most important Spanish writers on the law of nations of the sixteenth century belonged to the camp that defended the freedom of the seas: Grewe, ibid., at 259.

31 See generally Vasquez de Menchaca, Illustrium Controversarium, Libri Tres (1564). Arguments along the same lines were also made by Alfonso de Castro in Volume 1 of his De Potestate Legis Penalis: E. Nys, Les origines de droit international (1894), 382.

32 The coastal waters, in his view, stretched over 100 miles from the coast and were subject to the jurisdiction of the littoral state: Grewe, supra note 24, at 264.

33 A. Gentilis, De Jure Belli Libri tres (1588) and Hispanicae Advocationis Libri duo (1605), as cited in Potter, supra note 16, at 54.

34 R. Anand, ‘Freedom of the Seas: Past, Present and Future’, in R. Gutiérrez Girardot et al. (eds.), Essays in Honour of Wolfgang Abendroth (1982), 215, at 216. As Meurer dramatically put it, ‘up to modern times the freedom of the seas slumbered the sleep of the Sleeping Beauty, until there appeared from Netherlands the knight whose kiss awakened her once more’: C. Meurer, The Program of the Freedom of the Sea (1919), 7.

35 H. Grotius, The Free Sea (ed. and with Introduction by D. Armitage) (2004). As stated in the Introduction to this edition, ‘few works of such brevity have caused arguments of such global extent and striking longevity as Mare Liberum’ (at xi).

36 H. Grotius, De Jure Praede Commentarius (ed. H. Hamaker) (1868).

37 Grotius defended the Dutch seizure of the Sta Catharina on the basis of a set of natural laws, self-defence, and self-preservation, which he derived originally from the divine will. As he contended in the twelfth chapter, ‘even if the war were private war, it would be just, and the prize would be justly acquired by the Dutch East India Company’: ibid., at 216. For a general consideration of the incident, see also Borschberg, P., ‘The Seizure of Sta Katarina Revisited’, (2002) 33 Journal of South-Asian Studies 31Google Scholar.

38 Grotius conveniently forgot his freedom-of-the-seas principle, which he propounded with such fervor, and went to England in 1613 with a Dutch delegation to argue in favor of Dutch monopoly of trade with the Spice Islands. He was allegedly surprised that his own book, published anonymously, was being quoted by the British against him. See Clark, G., ‘Grotius’ East Indian Mission to England’, (1934) 20 Transactions of the Grotius Society 45, at 79Google Scholar.

39 See, e.g., T. Ortolan, Règles internationales et diplomatie de la mer (1864), 128; W. Knight, The Life and Works of Hugo Grotius (1925), 36. Potter rightly observes that ‘the works of Grotius, Selden and their coadjutors were products of personal and national desires rather than works of pure and unbiased juristic science’: Potter, supra note 16, at 61.

40 W. Welwood, An Abridgement of All Sea Laws (1613), esp. Chapter XXVI; W. Welwood, De Dominio Maris (1615). Welwood had understood Mare Liberum's alleged East Indian context as a cover for the work's ‘real purpose’, namely to reinforce the claims of Dutch herring-fishing fleets to fish in British (in particular, Scottish) territorial waters. It was actually the only work to which Grotius replied: see H. Grotius, In Defensio capiti quinti Maris Liberi (ca. 1615).

41 Shortly after the publication of Mare Liberum, James I asked John Selden to write a counterthesis, which was published much later, entitled Mare Clausum seu de dominio maris libri duo (1635). Selden's Mare Clausum was divided into two books. In the first, he attempted to refute Grotius's thesis, arguing that it is demonstrated that the sea, according to the law of nature and nations, is not common to all, but can be subject to jurisdiction and domain of individuals in the same way as land can. In the second, Selden sought to prove that dominion over the British Seas was part of this insular realm. See Grewe, supra note 24, at 268.

42 J. S. de Freitas, De Justo Imperio Lusitanorum Asiatico (1635). Freitas wrote this treatise for the king of Spain, who was at the time also the king of Portugal. According to Freitas, the king of Spain had full sovereign rights over the sea, by virtue of which he dispatched his fleets to rid the sea of pirates and of other enemies. See Alexandrowicz, C., ‘Freitas versus Grotius’, (1959) 35 British Yearbook of International Law 162Google Scholar.

43 Grewe, supra note 24, at 266.

44 The Anglo-Dutch dispute occupied three-quarters of the seventeenth century and gave rise to three wars. On the history and legal consequences of this rivalry, see Fulton, supra note 21, at 346.

45 Grewe, supra note 24, at 273.

46 It is of interest that as early as 1689, a book was published by Sir Philip Meadows that criticized sharply the English claims for sovereignty of sea in the extended maritime zone of the Oceanus Britannicus: see Observations Concerning the Dominion and Sovereignty of the Seas (1689). See also Fulton, supra note 21, at 524.

47 See, e.g., C. Bynkershoek, De Dominio Maris Dissertatio (1703); E. de Vattel, Le droit des gens, Liv. I at 279–95. These texts are also referred to by Potter, supra note 16, at 94.

48 Anand, supra note 21, at 127. As McFee points out, ‘there was so much trading and it could be done so much cheaper with a complete free and open sea, that the very idea of owning the sea vanished’: W. McFee, The Law of the Sea (1950), 142.

49 Grewe, supra note 24, at 552. This policy was exemplified by the fall of the Barbary States after the Congress of Vienna (1815) and the fight against the slave trade as ‘quasi-piracy’: see generally Kern, H., ‘Strategies of Legal Change: Great Britain, International Law, and the Abolition of the Transatlantic Slave Trade’, (2004) 6 Journal of History of International Law 233CrossRefGoogle Scholar.

50 The First United Nations Conference on the Law of the Sea (UNCLOS I) was held at Geneva in 1958 and it succeeded in adopting four conventions: the 1958 Convention on the Territorial Sea and the Contiguous Zone, 516 UNTS 205; the 1958 Convention on the Continental Shelf, 499 UNTS 311; the 1958 Convention on the High Seas, 450 UNTS 11; and the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas, 559 UNTS 285. It goes without saying that more apposite to the freedom of the high seas are the last two conventions, especially the 1958 Convention on the High Seas. On this Geneva Conference generally, see Jessup, P., ‘The UN Conference on the Law of the Sea’, (1959) 59 Columbia Law Review 234CrossRefGoogle Scholar.

51 Bierzanek, R., ‘La nature juridique de la haute mer’, (1961) 65 Revue générale de droit international public 233, at 234Google Scholar.

52 Colombos, supra note 23, at 65.

53 P. Fauchille, Traité de droit international public, Vol. I (1925), 14–15.

54 Politis, N., quoted in the minutes of the meeting of the Institut de droit international held on 1 August, 1925, extracted in (1925) 32 Annuaire de l'Institut de droit international, at 526Google Scholar.

55 Gidel was the first to elaborate this principle extensively: Gidel, supra note 25, at 225. It was, however, previously posited by Meurer as follows: ‘Das Meer ist frei von der Gebietshoheit aber nicht von der Rechtshoheit’. See C. Meurer, Das Programm der Meeresfreiheit (1918), cited in A. P. Higgins, ‘Le règime juridique des navires de commerce’, (1929/V) 30 Recueil des cours 1, at 11.

56 McDougal and Burke write that ‘the major function served by the attribution by States of national character to ships has been in establishing the basic organisational principle by which States have sought to maintain public order in the oceans’: McDougal and Burke, supra note 12, at 86. See also generally H. Meyers, The Nationality of Ships (1967).

57 Art. 87(1). This list of freedoms, as the wording of the article clearly indicates, is not restrictive: Jennings and Watts, supra note 2, at 729.

58 Art. 87(2) (emphasis added); Jennings and Watts, supra note 2, at 729.

59 Cf. E.g. Art. 58 of LOSC and F. Orrego Vicuña, The Exclusive Economic Zone (1989), 74–5.

60 Churchill and Lowe, supra note 4, 166.

61 See generally the works cited supra note 13 and A. G. Oude Elferink and E. J. Molenaar (eds.), The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments (2010).

62 See e.g. Churchill and Lowe, supra note 4, at 296. See also generally F. Orrego Vicuña, The Changing International Law of High Sea Fisheries (1999).

63 See, e.g., 1994 Agreement on the Implementation of Part XI of the 1982 Law of the Sea Convention, 33 ILM 1309 (1994) (entered into force 28 July 1996) and Churchill and Lowe, supra note 4, at 223.

64 In the words of Rayfuse and Warner, ‘the entire history of international law of the sea has been one of oscillation between freedom and restriction’: Rayfuse, R. and Warner, R., ‘Securing a Sustainable Future for the Oceans beyond National Jurisdiction’, (2008) 23 International Journal of Marine and Coastal Law 399, at 400CrossRefGoogle Scholar.

65 McDougal and Burke, supra note 12, at 55–6.

66 Grotius, supra note 35, at 32–3 (emphasis added).

67 It is true that Grotius departed from this position in the Defence of Mare Liberum, where ‘in his enthusiasm to demolish Welwood's thesis . . . he said that whatever [mare liberum] applied to the whole sea, applied to all its parts and he allowed no exception for a sea washing a coast’: Anand, supra note 21, at 102. However, by 1625, he had come to agree with Welwood that territorial waters could be possessed: H. Grotius, De Jure Belli ac Pacis, Vol. II (1625), at 3.13–3.15.

68 Later, Welwood argued that it was incontestable that the vast and boundless waters beyond the mare proximum were open to all nations indifferently for all uses: see W. Welwood, De Dominio Maris (1615), as cited by Fulton, supra note 21, at 353–4.

69 Selden held, however, that ‘the permitting of such innocent navigation does not derogate from the dominion of the sea’: at Lib. i. cap. xx, cited by Fulton, supra note 21, at 371. Along the same lines was Freitas, who, according to Alexandrowicz, did not deny in principle the freedom of the high seas, but instead contended that it could be limited and reduced by the claims to sovereignty of coastal States: Freitas, supra note 42, at 173.

70 It must be recalled here that Freitas asserted that by virtue of his sovereign rights, the king of Spain dispatched his fleets to rid the sea of pirates and of other enemies: Grewe, supra note 24, at 259.

71 Cf. The discussion in Potter, supra note 16, at 77. See also Zemanek, who notes that ‘the dispute was primarily about free trade versus monopoly’: Zemanek, K., ‘Was Hugo Grotius Really in Favour of the Freedom of the High Seas?’, (1999) 1 Journal of the History of International Law 48, at 58CrossRefGoogle Scholar.

72 Fulton, supra note 21, at 355.

73 Ibid., at 372.

74 Alexandrowicz, supra note 42, at 173–5.

75 Fulton, supra note 21, at 560–1.

76 Writing the account of Pompey's war against the pirates in 67 bc, Plutarch states that ‘this power [of the pirates] extended . . . over the whole of our sea, making it . . . closed to all commerce. This inclined the Romans to send out Pompey with a commission to take the sea away from pirates’: Plutarch, Pompey, XXV–XXVI, cited in Potter, supra note 16, at 29–30.

77 See generally the discussion of the extension of the territorial sea in Fulton, supra note 21, Section II, Chapters I, II, and V.

78 On the definition of exclusive claims, see McDougal and Burke, supra note 12, at 1.

79 McDougal and Burke write in respect of the right of visit: ‘the claim to apply policy on the high seas is also essentially inclusive as each State usually claims to exercise authority only over its own vessels’: McDougal and Burke, supra note 12, at 34.

80 The term ‘international society’ is generally to be preferred to the term ‘international community’, especially when the discussion pertains to the decision-making process in the law of the sea. It is submitted that the participants in the process of interaction and in the policy-making in the oceans are not only states or intergovernmental organizations, but also non-state actors, such as the shipping industry. See, e.g., E. Roucounas, ‘Facteurs privés et droit international public’, (2002) 299 RCADI 9, at 23. On the concept of ‘international society’, see H. Mosler, ‘The International Society as a Legal Community’, (1974/IV) 140 RCADI, at 17.

81 Politis, supra note 54, at 526.

82 UN High Seas Memorandum, supra note 1, at para. 32.

83 Ibid., at para. 26.

84 O. de Ferron, Le droit international de la mer (1958), at 118.

85 R. Barnes, Property Rights and Natural Resources (2009), at 113.

86 See, e.g., Grotius, supra note 67.

87 On the history of privateering and its relationship with piracy, see F. Stark, The Abolition of Privateering and the Declaration of Paris (1897), at 49.

88 See the extended discussion of this issue by Gidel, supra note 25, at 248.

89 1919 St Germain Convention on the Control of Trade in Arms and Ammunition, (1919) 7 LNTS 331.

90 There was a Convention on the Supervision of the International Trade in Arms and Ammunition and in Implements of War, signed on 17 June 1925 in Geneva. It was drafted during an international conference held at Geneva, Switzerland, May 4 to June 17 1925. The Convention never entered into force. The full proceedings of this Conference, together with the text of the instruments signed, is given in a League of Nations publication entitled Proceedings of the Conference for the Supervision of the International Trade in Arms and Ammunition and in Implements of War (Geneva, May 4th to June 17th, 1925) A. 13, 1925, IX, cited in (1926) 20 AJIL 151, at 153.

91 Gidel, supra note 25, at 410–11, quoting Admiral Surie (emphasis added).

92 Ibid., at 414; see also G. Politakis, Modern Aspects of the Laws of Naval Warfare and Maritime Neutrality (1998), 424.

93 See generally D. Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), Chapter 9.

94 This function can also be attributed to the drafters of the St Germain and Geneva Conventions, who expressly designated the trade in arms in Africa as a ‘serous danger to general peace’. The quotation in the text refers to the terminology used by McDougal and Burke, supra note 12, at 34. The quotation at the footnote was found in Gidel; see supra note 91 and the corresponding text.

95 See, e.g., D. Momtaz, ‘Commentary on the Iranian Practice’, in A. De Guttry and N. Ronzitti (eds.), The Iran–Iraq War and the Law of Naval Warfare (1993), 24.

96 See the general discussion of Operation Enduring Freedom in C. Gray, International Law and the Use of Force (2008), beginning at 203.

97 P. Jimenez-Kwast, ‘Maritime Interdiction of Weapons of Mass Destruction in an International Legal Perspective’, (2007) 38 NYIL 163, at 235. This author reports that in ‘the period October 2001–October 2003 alone, over 1,100 ships were boarded by coalition forces while tens of thousands vessels were hailed’: ibid., at 235 (note 416).

98 See, e.g., information available on the website of the US Department of State: see, e.g., information available at www.globalsecurity.org/military/ops/oef_orbat.htm (last visited 27 October 2010).

99 The 2008–09 Israel–Gaza conflict, part of the ongoing Israeli–Palestinian conflict, started when Israel launched a military campaign in the Gaza Strip on 27 December 2008. The Israeli operation began with an intense bombardment of the Gaza Strip, followed by a ground invasion on 3 January 2009. See, e.g., BBC, ‘Gaza Aid Boat “Rammed by Israel”’, available at http://news.bbc.co.uk/2/hi/middle_east/7805075.stm.

100 For further information, see, e.g., BBC, ‘Deaths as Israeli Forces Storm Gaza Aid Ship’, available at www.bbc.co.uk/news/10195838.

101 The relevant NAVTEX was transmitted to the author under conditions of anonymity and read as follows: ‘in light of the security situation, all foreign vessels are advised to remain clear of area bound by . . . . Vessels approaching the maritime zone off the coast of Gaza Strip are requested to maintain radio contact with Israel Naval Forces and will be subject to supervision and inspection’ (document on file with the author).

102 Statement of the President of Security Council, ‘The Situation in the Middle East, Including the Palestinian Question’, UN Doc. S/PRST/2010/9 (1 June 2010), in respect of the deadly attack of Israeli Forces on a Turkish vessel taking part in the ‘Free Gaza Movement’, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N10/382/79/PDF/N1038279.pdf?OpenElement.

103 Cf., inter alia, embargoes against Iraq, the territory of the former Yugoslavia, Somalia, Liberia, Angola, and Sierra Leone: see generally D. Cortright et al., ‘The Sanctions Era: Themes and Trends in UN Security Council Sanctions since 1990’, in A. V. Lowe et al. (ed.), The United Nations Security Council and War (2008), 205.

104 See generally, e.g., L.-A. Sisilianos, ‘L'autorisation par le Conseil de Sécurité de recourir a la force une tentative d'évaluation’, (2002) 106 RGDIP 1.

105 UN Doc. S/RES/665 (1990). On the question of the legality of maritime enforcement operations against Iraq pursuant to Security Council resolutions, see, e.g., R. Zacklin, ‘Les Nations-Unies et la crise du Golfe’, in B. Stern (ed.), Les aspects juridiques de la crise et de la guerre du Golfe (1991), 57, at 67.

106 See general discussion of this issue in L. Fielding, Maritime Interception and United Nations Sanctions (1997); and A. Soons, ‘Enforcing the Economic Embargo at Sea’, in V. Gowlland-Debbas (ed.), United Nations Sanctions and International Law (2001), 307.

107 On this issue, see the 2000 Protocol against the Illicit Manufacturing and Trafficking in Firearms, their Parts and Components and Ammunition, 2326 UNTS 208, supplementing the 2000 UN Convention against Transnational Organized Crime, 2225 UNTS 209. See also generally Arabian, L., ‘Combating the Illicit Manufacturing of and Trafficking in Small Arms and Weapons’, (2003) 7 Mediterranean Journal of Human Rights 5Google Scholar.

108 Churchill and Lowe, supra note 4, at 281.

109 For a very interesting analysis of fisheries from the perspective of property rights, which, however, are susceptible to ‘public-interest’ regulation, see Barnes, supra note 85, especially Chapter 3.

110 See, e.g., the 1882 International Convention for the Purpose of Regulating the Police of the Fisheries in the North Sea outside Territorial Waters, 310 UNTS 145. For a detailed analysis of these treaties and generally of the high-seas fisheries, see generally Gidel, supra note 25, Livre V, Chapters III and IV; and P. Jessup, ‘L'exploitation des richesses de la mer’, (1929/IV) 29 RCADI 403.

111 See, e.g., the Northwest Atlantic Fisheries Organisation (NAFO), established by the 1978 Convention on Future Multilateral Cooperation in the North-West Atlantic Fisheries, 1135 UNTS 369; the North-East Atlantic Fisheries Commission, established by the 1980 Convention of Future Multilateral Cooperation in the North-East Atlantic Fisheries, 1285 UNTS 129; and the General Fisheries Council for the Mediterranean, established by the 1949 Agreement for the Establishment of the General Fisheries Council for the Mediterranean, 126 UNTS 237, as amended by the Council itself in 1976 and 1997.

112 The most recent discussions of this topic from the perspective of shipping interdiction are in Guilfoyle, supra note 93, Chapter 6. See also R. Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (2004).

113 See Art. 21 of the 1995 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, 34 ILM 1542 (1995). On the 1995 Agreement, see generally Rayfuse, R., ‘The United Nations Agreement on Straddling and Highly Migratory Fish Stocks as an Objective Regime: A Case of Wishful Thinking?’, (1999) 20 Australian Yearbook of International Law 253Google Scholar.

114 In this regard, see generally M. A. Palma, Promoting Sustainable Fisheries: The International Legal and Policy Framework to Combat Illegal, Unreported and Unregulated Fishing (2010).

115 Fulton, supra note 21, at 7.

116 In this regard, see generally E. Kontorovich, ‘The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation’, (2004) 45 Harv. ILJ 183.

117 See generally Guilfoyle, D., ‘Piracy off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts’, (2008) 57 International and Comparative Law Quarterly 690CrossRefGoogle Scholar; and T. Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’, (2009) 20 EJIL 399.

118 All Security Council Resolutions adopted in respect of piracy included the following caveat: ‘Determining that the incidents of piracy . . . off the coast of Somalia exacerbate the situation in Somalia which continues to constitute a threat to international peace and security in the region’: see, e.g., S/Res/1816 (2008), S/Res/1851 (2008), S/Res/1897 (2009), S/Res/1918 (2010).

119 ‘The number of attacks off the coast of Somalia has steadily increased since 1991, and over the past two years has increased from 111 vessels attacked in 2008 to 217 vessels attacked in 2009 . . . . There were 30 attacks during the first quarter of 2010’: see UN Security Council, ‘Report of the Secretary-General on Possible Options to Further the Aim of Prosecuting and Imprisoning Persons Responsible for Acts of Piracy and Armed Robbery at Sea off the Coast of Somalia’, UN Doc. S/2010/394 (26 July 2010), at 10.

120 Further information on Operation Atalanta is available on the website of the Council of the European Union: see www.consilium.europa.eu/showPage.aspx?id=1518&lang=en. On the issue of the human rights obligations of the states involved in the operation, see generally D. Guilfoyle, ‘Counter-Piracy Law Enforcement and Human Rights’, (2010) 59 ICLQ 141; and A. Fiscer-Lescano and L. Kreck, ‘Piracy and Human Rights: Legal Issues in the Fight against Piracy within the Context of the European “Operation Atalanta”’, (2009) 52 GYIL 525.

121 See in this respect E. Papastavridis, ‘Piracy off Somalia: The Emperors and the Thieves of the Oceans in the 21st Century’, in A. Abass (ed.), Protecting Human Security in Africa (2010), 122, at 132.

122 See generally A. P. Higgins, ‘Submarine Cables and International Law’, (1921–22) BYIL 27.

123 Art. 10(2) of the 1884 Convention for the Protection of Submarine Telegraphic Cables, signed at Paris, 14 March 1884, the text of which is available via the website of the International Submarine Cable Protection Committee at www.iscpc.org/information/Convention_on_Protection_of_Cables_1884.pdf. Cf. Also Arts. 112–15 of LOSC.

124 Gidel, supra note 25, at 420. On contemporary issues concerning submarine cables, see M. Green, ‘Security of International Submarine Cable Infrastructure: Time to Rethink?’, in M. Nordquist (ed.), Legal Challenges in Maritime Security (2008), 557.

125 See generally Redgwell, supra note 14.

126 See generally P. Quénedec, ‘Les incidences de l'affaire du Torrey Canyon sur le droit de la mer’, (1968) 14 AFDI 701. See also Part XII of LOSC.

127 Art. 1 of the 1969 Brussels International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 970 UNTS 211.

128 Cf. Art. 25 of the Articles on the Responsibility of States for Internationally Wrongful Acts, contained in International Law Commission, Report of the International Law Commission (53rd session), UN Doc. A/56/10 (2001) (ILC Draft Articles).

129 See, e.g., Art. 110(1) of LOSC.

130 Rayfuse and Warner, supra note 64, at 411.

131 On the area and its regulation, see supra note 63.

132 See Potter, supra note 16, at 54 (emphasis added).

133 On the history of the contiguous zone, see Anand, supra note 21, at 141. Cf. Also Art. 33 of LOSC.

134 See, e.g., Colombos, supra note 23, at 143.

135 In analysing the grounds for the British decision to take a leading role in the abolition of the slave trade, Grewe cites the declaration of Wilberforce before the House of Commons in 1791: ‘the abolition is indispensable required not only by religion and morality but by every principle of sound policy’ (emphasis added). According to Grewe, the sound policy related to the economic and political background of that period, which provided the impetus for the British campaign, rather than sheer considerations of morality: Grewe, supra note 24, at 555.

136 See generally J. Allain, ‘The Nineteenth Century Law of the Sea and the British Abolition of the Slave Trade’, (2007) 78 BYIL 343.

137 On peremptory norms of international, see generally A. Orakhelasvili, Peremptory Norms in International Law (2006); R. Kolb, Théorie du ius cogens international (2001).

138 See, e.g., the Commentary on the ILC Draft Articles in 2001 YILC, Vol. II, at 112.

139 2003 Agreement Concerning Co-operation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area, signed at San Jose 10 April 2003 (entered into force on 18 September 2008), the text of which is available via the website of the US Department of State at www.state.gov/s/l/2005/87198.htm. The text, along with a short commentary, is also contained in W. Gilmore, Agreement Concerning Co-operation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area (2005).

140 See further, e.g., P. J. J. Van der Kruit, Maritime Drug Interdiction in International Law (2007); and A. Bellayer-Roile, ‘La Lutte contre le narcotrafic en Mer Caraïbe, une coopération internationale à géométrie variable’, (2007) 111 RGDIP 355.

141 See, e.g., Art. 8 of the Smuggling Protocol, supra note 8, and also the recent interception operations organized by FRONTEX, such as JO EPN HERA 2009 (extension) 2010 in the Canary Islands area and JO EPN Poseidon 2009 (extension 2010) in the East Mediterranean Sea. See further information on these operations at www.frontex.europa.eu/examples_of_accomplished_operati/art108.html.

142 See generally Guilfoyle, supra note 93, Chapter VII.

143 See further discussion in E. Papastavridis, ‘Interception of Human Beings on the High Seas: A Contemporary Analysis under International Law’, (2009) 36 Syracuse JILC 48.

144 Cf. Also the opinion of Gidel concerning ‘le scandale et le disodre’ as threats to the ‘general interest’ of states and thus as grounds for positive assertions on the high seas; UN High Seas Memorandum, supra note 1, para. 26.

145 Cf. The analysis of McDougal and Burke with respect to the various ‘manifold changing’ objectives, which the process of interaction, namely the making of claims and the authoritative decision-making will take into account: McDougal and Burke, supra note 12, at 17.