Two Fundamental Concepts
A. Introduction
In essence, this book examines how security interests have influenced the development of the law of the sea and how these interests are currently changing the interpretation and application of the law of the sea. It argues that security interests should be given greater scope in our understanding of the law of the sea in light of the changing dynamics of exclusive and inclusive claims to ocean use. Security interests in the oceans have traditionally related to the military interests of different states and this dimension remains significant in inter-state relations, and in internal state decision-making on military priorities. While the protection of sovereignty and national interests remain fundamental to maritime security, there is increasing acceptance of a common interest that exists among states when seeking to respond to a variety of maritime security threats.
The reasons for dealing with this subject matter reflect the greater appreciation and apprehension of maritime security since September 11, and particularly the potential impact of terrorist attacks on global trade if the maritime industry was targeted. A number of legal initiatives have been undertaken with the intention of improving maritime security aboard ships, at ports and at sea. These recent international law developments include:
• the adoption and implementation of the International Ship and Port Facility Security Code (ISPS Code), a multilaterally-agreed code for risk management at ports;
• conclusion of the 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, which permits ship-boarding at sea for the suppression of particular terrorist offences;
• bilateral agreements between the United States and the largest ship-registry states;
• informal partnerships operating under the non-binding Proliferation Security Initiative (which involves interdicting vessels carrying weapons of mass destruction (WMD)); and
• unilateral actions, such as Australia’s declaration of a 1,000 mile ‘identification zone’ (now known as the Australian Maritime Identification System).
B. Two Fundamental Concepts
An assessment of maritime security and the law of the sea requires an initial examination of two fundamental questions: what is meant by ‘maritime security’, and how does maritime security relate to the basic structure of the law of the sea?
The scope and understanding accorded to the term ‘maritime security’ influence what activities are addressed and what interests are at stake in responding to any perceived problem. Inevitably, maritime security can mean different things to different people. As such, it may not be understood simply as a legal term of art, but must be considered in the broader perspective of international relations and what is understood by the very notion of ‘security’. ‘Security’ may be seen as an emotive term, extending to a sense of safety and hence freedom from fear. As a manifestation in international decision-making, security becomes a cadre of activities—legislative, executive, judicial, military, and police actions—designed to respond to a collective need for order and protection from internal and external threats. What may be considered as the security interests of a state needs to be understood, as these interests form the broad background to the maritime security of a state. It is then the threats to maritime security that become the catalyst for action and change, and subsequently influence the operation and development of the law of the sea.
Any discussion of the law of the sea takes as its starting point the fundamental principle of the freedoms of the seas, which is based on Hugo Grotius’s conception of mare liberum. Developments in the law of the sea have been premised on the idea that the oceans, barring a relatively narrow strip of water subject to coastal state sovereignty, are open to all users, and that any claims to ocean space or use are to be viewed as encroachments on the freedoms of the seas. As an initial point, it is important to explore why and how the pre-eminence of the freedoms of the seas has held sway for 400 years, what this means for maritime security, and indeed whether the imperative for greater security measures constitutes a challenge itself to the pre-eminence of the mare liberum concept.
A key consequence of mare liberum has been the generation of a tension between ‘inclusivity’ and ‘exclusivity’ in claims to ocean space and its use. This approach informed the landmark, policy-oriented, law of the sea treatise by McDougal and Burke, The Public Order of the Oceans.1 Inclusive interests refer to those that are shared by the international community; inclusivity promotes the idea that the law of the sea should be constructed and understood in a way that supports common use of an area, so that a mutual benefit is shared by the majority. Exclusive interests are held by individual states and are asserted against the rights and responsibilities of all other states; exclusivity is premised on the idea that one state should have the authority to reach decisions over ocean space and use without necessarily accounting for the interests of others (beyond a due regard requirement).2 As a general matter, it is adherence to mare liberum, and the more recent notion of the common heritage of mankind applicable to the deep seabed, that has ensured an ongoing viability for the recognition of inclusive interests in the ways that ocean space and use are regulated. Exclusive interests in contrast threaten ongoing adherence to mare liberum and are seen most obviously in the phenomenon of ‘creeping jurisdiction’ whereby some coastal states have asserted sovereignty and/or jurisdiction in adjacent waters beyond the rights they strictly enjoy under the law of the sea. The law has accommodated these competing claims of exclusivity and inclusivity to establish a common interest and thereby enhance order on the oceans.
When maritime security is considered against this paradigm, it will be seen that the actions taken to respond to maritime security threats are often viewed as exclusive interests; the state wishing to respond to the threat is seeking to ensure that its own particular security interests are upheld. These claims may be seen as special interests that counter the broader common interest in regulating ocean space and use. Frequently, these individual actions also run counter to long-recognized inclusive claims, primarily the freedoms of navigation, overflight, and fishing. From this perspective, the tension is a familiar one. Exclusive interests are seeking to override the inclusive interests in the freedoms of the seas and there is resistance to jeopardizing such freedoms for the sake of claims to exclusivity. In this way, an argument could be advanced that maritime security concerns require a further realignment of the balance between exclusive and inclusive claims so that an overall accommodation of competing uses may be achieved.
It is argued in this book that maritime security, properly defined and limited, can and should be viewed as an inclusive interest given the common interest in combating an array of maritime security threats. All states should therefore be concerned with ensuring that necessary steps are taken to maintain maritime security, as would be the case for any other inclusive interest. While the argument that maritime security is an inclusive interest is a relatively simple one to establish, how it is applied in a variety of contexts is more difficult. To what extent, if any, are changes needed in the law of the sea to accommodate the idea that maritime security is a shared interest for all states? Is there a competition between inclusive interests? How may a balance be struck and how is this approach different to devising a new accommodation of exclusive and inclusive interests? There may be a need to reconcile an inclusive concept of maritime security with continuing exclusive interests centered on military prerogatives for upholding national sovereignty. These are the matters explored in this book, with the goal of demonstrating that an understanding of maritime security as an inclusive interest permits justifiable developments in the law in some instances and reaffirmation of existing approaches in others. Such an understanding should improve responses to identified maritime security threats. The rest of this chapter considers in more detail the definition of maritime security and explains the fundamental framework of the law of the sea that informs the subsequent analysis.
(1) Defining maritime security
An understanding of maritime security begins with an appreciation of how the concept of security is defined and deployed in international relations generally. The tendency to use security as a justification for a range of governmental actions indicates that there are many ideas bundled into the term, and it may inform how matters of security should be understood when considered from a maritime perspective. Moreover, matters of maritime security are intimately linked with what may be called territorial security, in that what is happening on the seas impinges on actions taken on land. So, for example, a terrorist attack against an oil tanker in the middle of a vital shipping channel will likely hamper the delivery of goods and slow commercial shipping, affecting a variety of industries within different states as a result. Another example is that surveillance activities undertaken at sea may be focused on ascertaining land defences and terrestrial military capabilities. This Part therefore considers how ‘security’ is understood more generally before turning to a consideration of what maritime security might mean more specifically.
(a) Security in the international system
From an academic perspective, ‘security’ is understood in different ways depending on the theoretical school utilizing the term.3 For example:
The Copenhagen School understands that security is a socially constructed concept and that discourse is a key element in the construction and identification of security issues. Based on the discourse which surrounds it, a public policy issue can be classified as non-politicized, politicized or securitized. A non-politicized issue is one which is excluded from the policy debate and ignored by policy. A politicized issue is identified as a matter of public importance, brought into the policy discourse, and requires the commitment of public resources. A securitized issue is identified as a potential threat to the continued existence of the state. Once securitized, issues are perceived to be of such immediate importance that they are elevated above the ordinary norms of the political debate and the state acquires special rights to adopt extraordinary measures in order to protect itself.4
This approach emphasizes that security is of key importance in state decision-making and may warrant extraordinary steps to address particular issues.
Security has also been conceived of within a ‘tragedy of the commons’ scenario. In this regard, Andrew Mack has written: ‘The security dilemma arises when nation-states seek to maximize their security via policies of “peace through strength”—that is, by creating a military capability that will enable them to defeat…any opponent bent on opposition.’5 Applying this approach to the arms races of the Cold War, it could be seen that the increase in military capability of either opponent led to the other seeking greater capability, due to escalating fear and hostility, which in turn produced a greater likelihood that conflict would be initiated. Mack continues:
The net effect of the security dilemma is that the states that are subjected to it become both poorer and less secure. As with the tragedy of the commons, we can see how states acting in their ‘rational’ self-interest can produce outcomes that are in the interest of none of them.6
Applying this theory to the post-September 11 maritime security situation, where the United States and its allies have been seeking greater means to reduce the use of the oceans for terrorist purposes, it could be viewed that they are ultimately producing an outcome that is not in their own interests—namely, the introduction of greater restriction on the freedoms of the high seas than has traditionally been accepted in the past because of their utility to commercial and other military interests.
While international relations scholars have studied questions of security from different angles,7 it has been acknowledged that in the post-Cold War and globalization era that security concerns are no longer focused on military interests, in terms of a state being able to avoid war or otherwise prevail in any war.8 Globalization and the concomitant interdependence of states has led to mutual vulnerability, in that threats in one part of the world may affect the security of people in other parts of the world.9 The foreign and domestic policy concerns of states may become increasingly intertwined to respond to a growing perception of a wide array of security threats.10
The term ‘human security’ has been increasingly referred to as a way of focusing attention on the needs of individual human beings, rather than looking at the security needs of the state alone.11 Human security has been described as the freedom from fear and the freedom from want, and may be threatened in any of the following inter-related areas of security: economic, food, health, environmental, personal, community, and political.12 While the concept of human security has been much debated,13 at the very least these discussions may be credited for providing a vehicle to consider security beyond the confines of defensive or aggressive military policy of a state. Consistent with this approach, Buzan has observed that threats to a state’s security may not only be military, but also political, economic, societal, and ecological.14 In view of this broader understanding of security, the ‘security interests’ of a state may be seen as those that are intended to promote invulnerability to external forces that may jeopardize internal decision-making, community values and governance.
(b) Security interests in ocean space and ocean use
Consistent with broader views on security, security interests in relation to ocean space and use have traditionally been manifested in line with the military interests of a state, particularly in terms of asserting or defending state sovereignty as well as exerting power over other states or areas. Security interests have typically involved ensuring that the immediately adjacent coastal area of a state was not used in a way that would jeopardize the territorial integrity or political independence of the state, or that the economic resources of the area would not be exploited by others. The activities of vessels in the ports, internal waters, and territorial sea of a state have been of immediate concern in this regard. Similarly, the mobility and capability of naval forces have been a key concern when assessing a state’s security interests.
Technological developments that facilitate the exploitation of ocean resources in extended areas from the coast have warranted claims that a state’s economic and environmental interests require protection and have thereby extended understandings of security. The economic importance of living and non-living resources has also meant that states wish to protect not only the resources themselves but also information about those resources. Till has considered that the use of the oceans as a ‘source of power and dominion’ may be viewed as ‘hard security’, whereas ‘soft security’ is focused on ocean resources, transportation and trade, and exchange of information.15
These latter concerns have motivated the phenomenon of ‘creeping jurisdiction’16 and warranted greater claims to exclusive use through recognition of the Exclusive Economic Zone (EEZ) and rights over the continental shelf. The broadening of security interests from military concerns to political, economic, societal, and ecological concerns has therefore been seen in the development of the law of the sea through the recognition of new maritime zones that accommodate the desire of states to have greater control over more ocean space and more ocean uses. In these instances, the exclusive claims of states have been upheld in the face of inclusive claims seeking to maintain as much ocean space as possible open to all users.
The exclusive claims of states to greater expanses of ocean area have fostered increasing competition and tension between states due to overlapping claims to maritime entitlements. The outer boundaries of exclusive maritime zones may also be challenged because of the consequent reduction in high seas areas open to all other users.17 The security concerns of a state may be intimately connected with defining and defending perceived entitlements to maritime areas.
Security interests in the oceans have also developed because of the interconnection of maritime activities with those on land that may impinge on territorial security. Transnational crime, terrorist attacks, and environmental harm may all have maritime elements and thereby pose risks to a state’s territorial security. The oceans have been viewed as ‘particularly conducive to these types of threat contingencies because of [their] vast and largely unregulated nature’.18 Maritime elements then come to the fore in dealing with these security interests. For island states or states with long coastlines, efforts to improve border security will have a significant maritime focus. It is often in this latter regard that discussions concerning a state’s ‘maritime security’ arise.
(c) What is ‘maritime security’?
The term ‘maritime security’ has different meanings depending on who is using the term or in what context it is being used. Consistent with the broadening of interests related to security, defence perspectives on maritime security encompass a greater range of threats than traditional notions of seapower. For example, the US Naval Operations Concept referred to the goals of ‘maritime security operations’ as including ensuring the freedom of navigation, the flow of commerce and the protection of ocean resources, as well as securing ‘the maritime domain from nation-state threats, terrorism, drug trafficking and other forms of transnational crime, piracy, environmental destruction and illegal seaborne immigration’.19
For operators in the shipping industry, maritime security is particularly focused on the maritime transport system and relates to the safe arrival of cargo at its destination without interference or being subjected to criminal activity.20 Consistent with this perspective, Hawkes has sought to define maritime security as ‘those measures employed by owners, operators, and administrators of vessels, port facilities, offshore installations, and other marine organizations or establishments to protect against seizure, sabotage, piracy, pilferage, annoyance, or surprise’.21 For the shipping industry, maritime security will comprise of avoidance of ‘maritime violence’, which allows for a general reference to acts of piracy, armed robbery or terrorism without needing to delve into the legal definitions involved for each specific act.22