Abstract:
The oceans of the world at once separate and connect us. As much as the sea provides a formidable natural barrier between the continents, it also provides a means of contact and communication, a navigable expanse and plentiful resource that has long been exploited for both individual and collective gain. Over the course of history, powerful maritime states have played the primary role in shaping the public order of the oceans. Although state practice continues to play a dramatic role, the twentieth century also witnessed prolonged and repeated efforts to codify that practice into a veritable treaty-based Law of the Sea.
In 1967—between one international effort at codification and another—Malta’s Ambassador to the United Nations, Arvid Pardo, famously urged the U.N. General Assembly to take “immediate action to prevent the breakdown of law and order on the oceans” in the face of growing concern that exactly such a breakdown was imminent. On December 10, 1982, the United Nations Convention on the Law of the Sea (“UNCLOS”), the product of decade-long negotiations, was opened for signature at Montego Bay, Jamaica. Having obtained the requisite sixty ratifications in 1993, UNCLOS entered into force on November 16, 1994. Eight years later, the United Nations proudly proclaimed that “[UNCLOS] established for the first time one set of rules for the oceans, bringing order to a system fraught with political conflict.”
But while UNCLOS set forth a widely agreed-upon set of rules, it is less clear whether its broad prescriptions created order out of chaos. Since the end of the Cold War, disorder on the oceans appears resurgent. This breakdown takes a variety of forms, including piracy, trafficking in drugs or people, illicit fishing, and degradation of the marine environment. The system of open registries, or flags of convenience, permits the facile concealment of ship ownership behind the corporate form. Lax flag state enforcement of shipping regulations leads to sub-standard vessels that pose hazards to crew and coast, as well as to the marine environment. A range of non-navigational practices also promotes and sustains disorder. These practices include unilateral, excessive claims over the extent of the territorial sea or the continental shelf, particularly through gross manipulation of the straight baselines method. UNCLOS is widely considered “one of the most comprehensive and well-established bodies of international regulatory norms in existence . . . buttressed by longstanding international norms, and formal legal agreements, critical to creating a more secure international environment.” Nevertheless, the persistence of maritime disorder indicates a critical gap between the prescription of law and the capacity or will to make that prescription effective. Alternatively, in some instances, the prescription itself may be lacking, either in specificity, scope, or adaptability to evolving circumstances. UNCLOS is undoubtedly an historic achievement, but its successful translation into an effective regime of international law is a process in need of frequent reassessment and adjustment.
The sea and its system of legal norms, however, risks characterization as a classic “out of sight, out of mind” problem. Simply because most activities on the oceans take place at some distance from our daily lives on land, issues of maritime law and oceans management are not cordoned off from transnational problems, particularly global security, that demand nearly constant attention. Renewed efforts by the United States and its allies to neutralize threats such as the proliferation of weapons of mass destruction (“WMD”) have placed a new and sustained focus on the legal regime regulating maritime behavior. The exploitation of the oceans for the transport and exchange of dangerous weaponry and technology is a global problem facilitated by the same freedom of navigation by sea that legal prescriptions have carefully preserved over time. Writing over forty years ago, professors McDougal and Burke noted that “[t]he common interest in maintaining a large measure of freedom from interference on the high seas has not been seriously questioned for some decades.” This Article asks whether seriously questioning that freedom is now permissible and wise, or whether the intervening years have recalibrated the acceptable “measure of freedom from interference,” on the high seas or elsewhere. The disorder lurking beneath the façade of legal order represented by UNCLOS—the troubling notion that “the entire structure built to regulate [the sea] is something of a fantasy floating free of the realities”—exacerbates the difficulty of reconciling “the overriding principle of noninterference” with the need to promote community well-being, both within and beyond the maritime context.
