Crises at seas

Print edition : October 31, 2014

The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans, By Efthymios Papastavridis, Hart Publishing, Oxford, Pages: 365.

The Law and Practice of Piracy at Sea: European and International Perspectives, Edited by Panos Kontrakos and Achilles Skordas, Hart Publishing, Oxford, Pages: 374.

Turkish commandos, part of a NATO force patrolling the seas, with pirates they captured when they raided a skiff (left) in the Gulf of Aden, off Somalia, on September 26, 2009. Photo: AP

Crew members of the Maersk Alabama at the Mombassa port in Kenya, on April 13, 2009. In a daring high-seas rescue, U.S. Navy snipers killed three Somali pirates and freed the U.S. captain who was held at gunpoint. "Captain Phillips", the 2013 Hollywood film starring Tom Hanks, was based on this incident. Photo: AP

The books provoke serious thought on the neglected subject of the freedom of the high seas.

INDIA is a growing maritime power. While international law on some knotty issues of the law of the sea keeps growing, we are not too well equipped on this subject. The two books under review will be of immense help to lawyers and diplomats alike.

Efthymios Papastavridis of the Academy of Athens was appointed Director of the Centre for Studies and Research at The Hague Academy of International Law. As Professor Catherine Redgwell of the University of London recalls in her foreword: “Debates regarding permissible scope of restrictions on the freedom of the high seas may be traced back to Grotius and Selden. While the Grotian view of the importance of the freedom of the high seas for navigation and communication persists, today there are many challenges of potentially equal common concern, such as the prevention and suppression of acts of terrorism, piracy and the smuggling of drugs. The increasing use of maritime interception on the high seas, whether exercised unilaterally or pursuant to multilateral treaty or U.N. Security Council authorisation, has led to the need to re-examine the conditions for the lawful exercise of maritime interception and the human rights safeguards and other conditions which should apply.” A balance is required now.

The subject is intrinsically controversial. Which country will admit that its vessel was lawfully intercepted? The author discusses contemporary challenges to the freedom of the high seas and maritime interception from a variety of causes—terrorism and weapons of mass destruction (WMD), drug trafficking, illicit migration, piracy and illegal, unreported, unregulated (IUU) fishing. The last has been of particular concern to India.

Historical development of the law is discussed in detail followed by analyses of the right of interception, unilaterally, in self-defence or otherwise, or under a Security Council resolution; in times of peace as well as in war. However, the need for safeguarding the traditional freedom of the high seas is also emphasised. The law will continue to grow and with it the quest for a balance between conflicting rights.

Professors Panos Kontrakos and Achilles Skordas, respectively of the universities of London and Bristol, have compiled erudite essays on piracy at sea, which was wrongly thought to have become extinct until Somalia compelled rethinking. The essays analyse the adequacy or otherwise of the U.N. Convention on the Law of the Sea (UNCLOS); the linkage between piracy and terrorism, the right to use force to combat the crime and the limits of International Humanitarian Law. Regional approaches, discussed in detail, reveal important variations in national approaches. One scholar points out that “international law contains a definition of piracy, but does not spell out what consequences attach to acts of piracy. Article 101 of the UNCLOS defines piracy as ‘any illegal acts of violence or detention’ taking place on the high seas, but does not say what the illegality consists of or how it ought to be punished. The norm against piracy is not so much a substantive norm of criminal law, but rather a jurisdictional device; ‘every state may seize a pirate ship or aircraft’, as Article 105 of the UNCLOS puts it. Moreover, the courts of the apprehending state may decide on penalties and determine which action ought to be taken with regard to the ships or property, Article 105 continues. In other words, the relevant articles in the Law of the Sea Convention spell out not so much what precise behaviour is prohibited as which states are allowed to do something about it.”

The international community has expanded. There are states whose writ does not run anywhere, the “failed state”. Failure also marks the efforts of the U.N. “If we cannot effectively handle such problems when they manifest themselves in the form of piracy, how are we going to handle those which manifest themselves in the form of international terrorism? Perhaps that provides a better paradigm than the allocation of jurisdictional competences within the framework of the Law of the Sea? Or perhaps, whilst it is obviously a very important problem, piracy is not actually considered to be that important a problem?”

These works of high scholarship provoke serious thought on neglected subjects.