Today’s security concerns have become a reason for a need to interfere with shipping. Whereas UNCLOS does much to enhance maritime security, the fundamental principles of the international law of the sea and the current trend of trying to enhance maritime security do not start from the same points of view. As said, the flag State principle and the principle of non-interference starts from the idea that interference by warships on foreign-flagged vessel must be considered as an exception to the rule. Maritime security and the manner in which enhancement of maritime security is envisaged to be put in practice at sea takes the opposite approach. It starts from the view that possibilities should exist, preferably supported by law, in which other vessels can be controlled, searched and taken action against.
Emphasizing the need for more maritime security, therefore, puts a strain on the basic principles of the law of the sea. In a broader sense, basically, the discussion here is the classic dilemma of gaining more security by losing more freedom with the ultimate aim to protect those same freedoms. The mentioned tension between the legal principles of non-interference, exclusive jurisdiction and freedom of the high seas versus enhancing maritime security as we see it today, puts pressure on the principles in a number of ways.
First, in conceptual thinking it appears that the right of visit as an exceptional right is moving in the direction of the thought that the right of visit must not be seen as an exception but rather must be seen as a possibility to enable boarding foreign-flagged vessels. This way of thinking does not change anything in the strict legal sense, but it does change the underlying mindset from exceptions to possibilities.
To put it differently: the thinking is shifting from ‘you cannot board unless there is a legal basis’, to ‘you can board as long as there is a legal instrument to back you up’. Again, it does not step away from the legal situation as is, but it allows in terms of (political) mindset perhaps to more easily eroding these principles.
Second, this political thinking steers the answer to the question how to protect against threats to maritime security. As said, enhancing maritime security departs from the idea that the seas need to be policed in order to successfully protect against threats. As such, in the political and strategic arena phrases like ‘policing the seas’ and ‘securing of the commons’ have become fashionable wording in modern naval strategy outside situations of armed conflict. Because current strategic maritime thinking starts with the aim of trying to control what happens in the seas by means of a higher level of awareness, it is contradictory to the Grotius principles of the law of the sea. It insists, from a strategic-political perspective, that the legal notion of very limited policing tasks for States on the high seas must be left behind. One consequence is that States are using naval forces to police at sea, using the space under the threshold of actions that need a legal basis for interference.
Warships are tasked to actively gather information on the high seas and make use of ‘friendly approaches’ in which crews of warships come in contact with the maritime community. Crews come alongside or even step aboard other vessels, simply to exchange information and talk with each other. In practise, these “friendly approaches” to enhance maritime security are becoming a standard modus operandi for warships. A large part of the naval operations against piracy is conducted by coming alongside local coastal fisheries vessels to inquire and gather information that may lead to a better situational awareness of the area. On a more sophisticated level Operation Active Endeavour has evolved from a platform-based operation to a network based operation that tries to tie in all kinds of information in order to close the network of possible terrorist use of the sea. Huge amounts of data anomalies are filtered in this process which may lead to spot illegal activities. Part of the task of Combined Maritime Forces (CMF), a thirty nation’s naval partnership, is to conduct maritime security operations. During these operations vessels conduct assist and approach visits in order to maximize general awareness at sea. Ultimately, collecting this information aims to enable timely reaction against any possible threat against maritime security. Policing the high seas, therefore, adds to maritime security awareness (MSA), which is an important part of current naval operations.
Conceptually, however, this modus operandi does not sit well with the notion that foreign-flagged vessels should not be interfered with. This active politico-strategical policy of seeking out vessels at sea in the manner as described above may be considered to be under the threshold of an intervention of foreign-flagged vessels. It has, however, made some authors question whether exclusive flag State jurisdiction and in particular keeping the primary responsibility over vessel with the flag State a legal concept that possibly should today be on its return. Geiss and Tams, for instance, opine that stepping away from this concept, allows for ‘a wider circle of States to enforce international legal rules’.
Third, as will be the main focus of study in Part II, with the collective security system, international agreements and arguments to use self-defence as a direct legal ground to board vessels, more and more exceptions to the exclusive jurisdiction of flag States have been put forward next to the traditional ones that are derived from the law of the sea. And also the objectives, through an increasing scope of issues brought under maritime security, for boarding foreign-flagged vessels have broadened. Such as the urge of some States to find legal ways to board vessels that are suspected of carrying WMD. Even before maritime security became central issue in the maritime domain, different authors already commented on the tension between the growing legal possibilities to interfere with the freedom of navigation.
Whereas these commentators primarily commented on maritime zones in which the high seas is losing terrain in relation to other maritime zones, other legal grounds to board foreign-flagged vessels, are nibbling at the rights of States with regard to the vessels at sea. These other legal frameworks also have an eroding effect on the principle of non-interference by warships of foreign-flagged vessels on the high seas. This development is not wholly without criticism, and usually comes to the fore as part of more strategic debates on the influence of States and their sea power on the ocean. Whereas some put the tension between the fundamental principles and politico-military strategy of States under the magnifying glass, others, such as Weinberg and Verdirame, underline that ‘[Yet], it would be hasty to conclude that these settled principles of the law of the sea will soon give way to the strategic necessities of powerful States and collective security.’
