Maritime Security and the Law of the Sea: Help or Hindrance?

240 Pages·2020·1.613 MB·English

by  Malcolm D. Evans and Sofia Galani

Maritime Security and the Law of the Sea

Maritime Security and
the Law of the Sea
Help or Hindrance?
Edited by
Malcolm D. Evans
Professor, University of Bristol Law School, UK
Sofia Galani
Lecturer, University of Bristol Law School, UK
Cheltenham, UK • Northampton, MA, USA
© Malcolm D. Evans and Sofia Galani 2020
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, electronic, mechanical or
photocopying, recording, or otherwise without the prior permission of the publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.
William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2019951883
This book is available electronically in the
Law subject collection
DOI 10.4337/9781788971416
ISBN 978 1 78897 140 9 (cased)
ISBN 978 1 78897 141 6 (eBook)
6
0
Contents
List of contributors vii
Acknowledgements viii
1 The interplay between maritime security and the 1982
United Nations Convention on the Law of the Sea: help
or hindrance? 1
Sofia Galani and Malcolm D. Evans
2 Beyond seablindness: a new agenda for maritime security
studies 25
Christian Bueger and Timothy Edmunds
3 Fisheries and maritime security: understanding and
enhancing the connection 48
Richard Barnes and Mercedes Rosello
4 High-end maritime security as legal argumentation 83
Volker Roeben
5 The commission of maritime crimes with unmanned
systems: an interpretive challenge for the United Nations
Convention on the Law of the Sea 104
Anna Petrig
6 Unmanned maritime systems will shape the future of
naval operations: is international law ready? 132
Kara Chadwick
7 Ships without nationality: interdiction on the high seas 157
Andrew Murdoch
8 Tackling maritime security threats from a port state’s
perspective 180
Sophia Kopela
v
vi Maritime security and the law of the sea
9 Towards the Code of Conduct for the South China Sea:
maritime security dimensions 202
Keyuan Zou
Index 218
Contributors
EDITORS
Sir Malcolm D. Evans KCMG, OBE is Professor of Public International Law
at the University of Bristol, UK.
Sofia Galani is Lecturer in Law at the University of Bristol, UK.
CONTRIBUTORS
Richard Barnes is Professor of Law at the University of Hull, UK.
Christian Bueger is Professor of International Relations at the University of
Copenhagen, Denmark.
Kara Chadwick is a Barrister in the Royal Navy, UK.
Timothy Edmunds is Professor of International Security at the University of
Bristol, UK.
Sophia Kopela is Nature Policy Associate at WWF Greece.
Andrew Murdoch is Legal Director of the Foreign and Commonwealth
Office (FCO), UK.
Anna Petrig is Professor of International Law and Public Law at the
University of Basel, Switzerland.
Volker Roeben is Professor at the University of Dundee, Centre for Energy,
Petroleum, and Mineral Law & Policy, UK.
Mercedes Rosello is Principal Researcher at House of Ocean Consulting, UK.
Keyuan Zou is Harris Professor of International Law at the Lancashire Law
School and Director of the Institute for International & Comparative Law at
the University of Central Lancashire, UK.
vii
Acknowledgements
We are most grateful to Reece Lewis, University of Cardiff, for his outstanding
editorial assistance.
viii
1 The interplay between maritime
security and the 1982 United Nations
Convention on the Law of the Sea:
help or hindrance?
Sofia Galani and Malcolm D. Evans
1. INTRODUCTION
The seas and oceans cover 70 per cent of the earth’s surface, and 90 per cent
of world trade is by sea.1 The oceans have always been a source of power and
wealth for states who have been keen to delimit their own maritime limits, but
states have also sought to ensure that the high seas remain open to all users.
Major maritime nations have enjoyed a military advantage over smaller coastal
and landlocked states by using and controlling the maritime domain for the
purposes of navigation, commerce and naval warfare. Economic benefits from
the development of the blue economy agenda have also become added to the
exploitation of fisheries and of marine natural resources, which have tradition-
ally contributed to the economies of states.2
Nevertheless, the continuing economic development of the oceans has been
overshadowed by increasing maritime security threats. While traditional forms
of inter-state disputes regarding the use and delimitation of their maritime
zones remain, new maritime security threats posed by non-state actors have
1 European Union Maritime Security Strategy, Responding Together to Global
Challenges, A guide for stakeholders, available at https://e c .europa .eu/ maritimeaffairs/
sites/ maritimeaffairs/f iles/l eaflet- european -union -maritime- security -strategy _en .pdf.
2 The African Charter on Maritime Security, Safety and Development in Africa
(the Lomé Charter) (15 October 2016) defined blue/ocean economy as the sustain-
able economic development of oceans using techniques such as regional development
to integrate the use of seas and oceans, coasts, lakes, rivers and underground water
for economic purposes, including, but without being limited to, fisheries, mining,
energy, aquaculture, and maritime transport, while protecting the sea to improve social
well-being, available at au .int/e n/ treaties/a frican- charter- maritime- security -and -safety
-and -development- africa- lome -charter 4.
1
2 Maritime security and the law of the sea
encouraged states to reconsider their understanding of maritime security and
rethink the use and protection of their maritime domain. The 9/11 attacks were
a wake-up call for the US, which realized that maritime infrastructure, includ-
ing ports and maritime installations, might be vulnerable to terrorist attacks
as well as that the oceans can themselves be used for the planning of terrorist
activities, such as through the transfer of weapons or terrorists.3 The bombings
of USS Cole and MV Limburg, the resurgence of piracy, the refugee crisis in
the Mediterranean Sea, and the proliferation of weapons of mass destruction
(WMDs) aggravated the concerns about the threats posed to maritime security
by non-state actors.4 All this has brought maritime security to the forefront
of thinking concerning the international law of the sea, with states and inter-
national organizations publishing, for the first time, their maritime security
strategies.5
Unsurprisingly, states, scholars and practitioners turn to the 1982 United
Nations Convention on the Law of the Sea (LOSC) – the ‘Constitution of the
Oceans’ – to seek help on how to protect their maritime domain against new
maritime security threats.6 LOSC was drafted for the purposes of ensuring the
peaceful use of oceans but is considered a living instrument.7 This means that
LOSC can be interpreted in a way that allows for current security challenges
and threats to fit within the meaning of its various provisions.8 It is inevitable,
however, that certain emerging activities and concepts closely interlinked with
3 The National Strategy for Maritime Security (September 2005) available at
https://g eorgewbush -whitehouse .archives .gov/ homeland/m aritime- security .html.
4 Report of the Secretary-General, Oceans and the law of the sea (10 March 2008)
(A/63/63) [54]–[113].
5 In addition to the US National Strategy for Maritime Security (n 3), see the
UK National Strategy for Maritime Security (May 2014) available at https://a ssets
.publishing .service .gov .uk/ government/ uploads/ system/ uploads/ attachment _data/ file/
310987/ 20140508 _NSMS .pdf and the French National Strategy for the Security of
Maritime Areas (22 October 2015) available at https://w ww .gouvernement. fr/ sites/
default/ files/ contenu/ piece -jointe/ 2016/ 01/ strategie _nationale _de _surete _des _espaces
_maritimes_ en _national_ strategy _for _the _security_ of _maritime_ areas .pdf. For the
maritime security strategies and plans of international and regional organizations, see
Section 2.2.
6 United Nations Convention on the Law of the Sea 1982, 1833 UNTS 397.
‘A Constitution for the Oceans’ – Remarks by Tommy T.B. Koh, of Singapore.
President of the Third United Nations Conference on the Law of the Sea, available at
https:// treaties .un .org/ Pages/ ViewDetailsIII .aspx ?src = TREATY & mtdsg _no = XXI -6 &
chapter= 21 & Temp= mtdsg3 & clang= _fr .
7 J Barrett and R Barnes (eds), Law of the Sea: LOSC as a Living Treaty (BIICL
2016).
8 For an in-depth study of maritime security and the international law of the sea,
see N Klein, Maritime Security and the Law of the Sea (Oxford University Press (OUP)
2010).