Maritime Law

Maritime law (also known as admiralty law or law of the sea) is a fundamental part of international law founded on the same rules and norms that govern international law generally. In fact, the earliest law of the sea, the freedom-of-the-seas doctrine (that the sea should be free and open to all parties except for a narrow belt surrounding a nation's coastline), dates back to the origins of international law itself in the writings of Hugo Grotius in 1609. Over the years, customary law developed with some unique twists and turns, culminating in what can be said to be a "constitution-like" settlement in the form of the UN Convention on Law of the Sea (UNCLOS) -- passed in 1982 by 159 nations and implemented in 1994. While the LOSC codifies a great many things, there are other general principles, customary rules, and normal exceptions which merit discussion, along with contemporary issues like piracy and terrorism at sea.

General Principles of Maritime Law

The most basic principle is that of adjacency which can be stated thusly: areas which are closer to a state's coast entail higher levels of coastal state sovereignty or control; and areas which are further out from a coast entail lesser coastal state control. The next most basic principle involves the concept of "baseline" which is the starting point for establishing all the different maritime zones (under LOSC, all maritime law is organized around different maritime zones). A baseline is what separates internal from external waters. It is a line measured by the low-water mark along a coast, which works fine for smooth coasts, but is problematic when a coast is fringed with islands, reefs, rocks or other features which cause low tide elevations. By law, a baseline should be straight and should not depart from the general direction or line of the land domain, unless a lighthouse is permanently installed on any low-tide elevations or a straight line is not possible due to long usage of some area for economic purposes (like fishing). Once a baseline is established, everything which takes place within internal waters is subject to full territorial sovereignty, with the exception that there is a right of innocent passage through waters that previously had not been considered internal waters. There is also a right of entry to any port when a vessel is in distress. Coastal states normally do not concern themselves with crimes committed aboard a foreign vessel, but the ship itself is subject to jurisdiction in rem (against the property) if any internal laws are broken. States may also regulate a ship's activities in territorial waters (where buoys usually mark navigation channels) and a contiguous zone (where boarding for search and seizure may occur). These are the most basic principles in a nutshell, and the illustration at right shows the most commonly accepted distances, more or less.

FORCE MAJEURE is the traditional concept ingrained in maritime law that a vessel in distress may approach or beach on any coast to assist saving lives and property aboard. Under contract law, force majeure relieves both parties from any liabilities or obligations whenever an extraordinary event occurs, such as a war, strike, riot, crime, or "act of God." For best understanding, comprehension of what an "act of God" entails is required. This is the base concept. The phrase "act of God" is a legal term for events outside of human control. Under criminal law, it is a type of criminal defense (called an excuse) which involves the concept of impossibility. Under tort law, an "act of God" is only an intervening cause in a series of causes which may or may not involve contributory negligence. Therefore, acts of God usually result in insurance payoffs and acquittals at criminal trial, but they are less successful at obtaining "jackpot justice" in the form of a big civil law settlement.

In maritime law, contracts for the timely delivery of goods are common, and such contracts often (very frequently, in fact) have clauses in them which provide little excuse for the untimely delivery of goods. This is because the maritime sector is held to a higher standard of due diligence, which means that the contract would normally require the provision of "backup plans" or other contingency plans for continuity. It may be noted that it would be good for homeland security purposes if ALL the critical infrastructure were put on this standard, but currently only the maritime sector has it. To enact a force majeure exception under such strict conditions requires what is called an overwhelming force. An unseen force doesn't qualify; nor do ordinary natural disasters. Shipping companies are expected to have contingency plans for earthquakes, tsunamis, and volcanic eruptions. They are also expected, to some degree, to have plans for crime and piracy. However, if the pirates, for instance, attack the ship with "overwhelming force" (superior weaponry, for example), then and only then is the force majeure exception triggered. If the pirates attack the ship with less than overwhelming force, then there is no exception and breach of contract has occurred. Force majeure (like its twin concept, vis major) requires the element of unpredictability (not unforseeability). Further, if a party asserts a force majeure exception, steps must be taken to mitigate or remedy the situation (minimize damages). It may be noted that even though the legal doctrines in this regard have widespread acceptance under international law (Choudhury 2006), controversies still arise. For example, the billionaire Donald Trump once tried to blame an unexpected economic recession as a force majeure, but he was unsuccessful in that effort.

Piracy is one of the most perplexing problems in international security. It is defined as a war-like act, but the behavior involved is usually an ordinary crime like robbery, kidnapping, or violence. Piracy should be distinguished from privateering, which was legal (authorized by national authorities) up to its abolishment at the end of the 19th century. UNCLOS (1982) defines piracy as "any criminal act of violence, detention, or depredation committed for private ends by the crew or the passengers of a private ship or aircraft that is directed on the high seas against another ship, aircraft, or against persons or property on board a ship or aircraft." Piracy is an international crime with international jurisdiction.

Pirates have existed in certain spots for a long time. The ancient Greeks and Romans had pirate problems, and the Middle Ages had the Vikings who raided Western Europe all the way down to southern Spain, as well as the Muslims who terrorized the Mediterranean. One of the favorite targets of these Muslim pirates was the Vatican. Piracy has always been geopolitically localized. For example, spots with heavy pirate activity have always been the Indian Ocean (where the pirate safe haven, Libertatia, was located), South East Asia (where the 300-year Wokou, or Japanese pirate, threat emerged), North Africa (Barbary pirates), and the Golden Age of piracy in the Caribbean (1660-1720). The southern coast of the Persian Gulf also became known as the Pirate Coast because raiders based there came into the habit of harassing all foreign shipping. Customary law (at least thru the eighteenth century) was for a captured pirate to be hung on the spot (summary execution), and the event was often a spectator sport.

Modern piracy, like the Somali pirates, are valued business partners of radical Islamic terrorist groups including those linked to Al-Qaeda, such as the AQ affiliate, Al-Shabaab, who currently control southern Somalia. Ryan Mauro at WorldThreats.com has said [such groups] can be linked to Al-Qaeda, as “part of the Mujahideen” despite being “money-seekers.” Those that dismiss the possibility of a link between pirates and terrorists underestimate the forces of radical Islam’s ability to establish relationships of convenience, and underestimate the greed of pirates with a clear will to bypass principles for the sake of profit. Two incidents involving the Somali pirates in 2008 are worth noting:

Less sophisticated methods of drug smuggling also exist. A common method is to use the food supply chain. In fact, it could be easily hypothesized that agroterrorism (like cyberterrorism) hasn't peaked as much as expected simply because it is in the terrorists' best interests to keep these channels of supply (and communication) open. Vast quantities of drugs are reportedly hidden in food containers and transport pods, and cargo theft (either at the port of entry or after being loaded into a refrigerated truck) accomplishes recovery of the smuggled drugs by cartel members. Smugglers know that once the cargo gets to a food distribution center, it is probably too late (although some good "busts" have been made at such centers). Therefore, the actual recovery of the smuggled items hidden inside some food cargo usually takes place "Mad Max" style by holding up or hijacking a transport truck. In some cases, the smugglers will attempt to collect intelligence at the unloading docks to track which trucks have the right cargo (RFID tracking devices are also sometimes used); in other cases, infiltration and/or posing as transporters is the norm. The point is that there are a variety of means to accomplish cargo theft (which is the subject of another lecture). This is also a case where maritime crime sometimes spills over into classic, violent organized crime.

As an interesting twist on food supply chain drug smuggling, note the little plastic bag contained within the cavity of the roasted chicken at left. That plastic bag contains two ounces of cocaine (street value: $4000). It was found by CBP officials to be in the possession of an airline passenger from El Salvador who brought it aboard for a meal while traveling. Small amounts like this are smuggled in by the hundreds of thousands every day using methods that are associated with food or snack items for personal consumption. It's almost as if there was some symbiotic relationship between food and drugs.

MARITIME SUPREMACY AND SECURITY

Security in the sense of "maritime security" can obviously encompass a number of things, but it may be instructive for a moment to reflect upon a different concept -- the notion of maritime supremacy. Renowned scholars have long argued that maritime supremacy is one of the surest ways to achieve long periods of peace in the world. For example, Blainey (1988) observes that wars cease when there is agreement over the relative maritime strength of a power. There are three spots in the world where such a description fits, but it is far from clear that they are conflict-free zones. Those three areas are the Persian Gulf (long ruled by nomadic tribes who prefer to think of it as the Arabic Gulf); the Caribbean (technically, international waters but "dominated" by America); and the South China Sea (which China hopes will become a kind of Chinese Caribbean).

China's interest in getting its sea legs is a most interesting case. As the Great Wall attests, China has long been concerned with land invasion, but not anymore. China is busy at work building a great navy, and as Robert D. Kaplan points out in his May/June 2010 Foreign Affairs article, The Geography of Chinese Power, China has a 9,000 mile temperate coastline with many good natural harbors, so it is well-suited to be a sea power. It may even link one day to the Indian Ocean via roads and energy pipelines. However, Chinese maritime supremacy has its challenges. What it calls its "first island chain" contains nothing but flashpoints (all except Australia): the Korean Peninsula, the Kuril Islands, Japan (including the Ryukyu Islands), Taiwan, the Philippines, Indonesia, and Australia. China is already embroiled in various disputes over parts of the energy-rich ocean beds of the East China Sea and the South China Sea: with Japan over the Diaoyu/Senkaku Islands and with the Philippines and Vietnam over the Spratly Islands. Essentially, a kind of "Great Wall in reverse" exists in this region due to the presence of a well-organized line of U.S. allies that serve as a sort of guard tower to monitor and possibly block China's access to the Pacific Ocean. What China calls its "second island chain" consists of the U.S. territories of Guam and the Northern Mariana Islands. The way China talks about these "island chains" speaks volumes about how it thinks of all these islands as archipelagic extensions of the Chinese landmass. Already, they have taken aggressive actions. In October 2006, a Chinese submarine stalked the USS Kitty Hawk and then surfaced within torpedo range of it, and in November 2007, the Chinese denied the Kitty Hawk carrier strike group entry into Victoria Harbor when it was seeking a respite from bad weather. In March 2009, a handful of PLA navy ships harassed the U.S. surveillance ship, the USNS Impeccable while it was openly conducting operations outside China's 12-mile territorial limit in the South China Sea, blocking its way and pretending to ram it. China seems to be doing everything in its power to keep the US Navy from getting in between its first island chain and its mainland.

Likewise, China is very possessive about Taiwan, that little place Gen. MacArthur once referred to as America's "unsinkable aircraft carrier" midway up China's seaboard. If Taiwan were to somehow become under China's domination, China would not only lock up its first island chain but be well positioned to project maritime power into the Pacific. The ability to "radiate" naval power is part and parcel of maritime security.

REFERENCES
Anand, R. (1983). Origin and development of the law of the sea. The Hague: Kluwer Law International.
Blainey, G. (1988). The causes of war, 3e. NY: Free Press.
Buergenthal, T. & Murphy, S. (2007). Public international law in a nutshell, 4e. NY: Thomson/West Group.
Choudhury, T. (2006). Mitra's legal and commercial dictionary. UK: Eastern Law House.
Churchill, R. & Lowe, A. (1999). The law of the sea. Manchester, UK: Manchester Univ. Press.
Freestone, D., Barnes, R. & Ong, D. (Eds.) (2006). The law of the sea: Progress and prospects. NY: Oxford Univ. Press.
Keyuan, Z. (2005). Law of the sea in East Asia. NY: Routledge.
O'Connell, D. (1982/1984). The international law of the sea: Vol I and II. NY: Oxford Univ. Press.
Tetley, W. (2009). Prof. Tetley's maritime and admiralty law website. URL at http://www.mcgill.ca/maritimelaw/ (last accessed Apr. 17, 2010).
Vallar, C. (2008). "Pirates and Privateers: A history of maritime piracy." URL at http://www.cindyvallar.com/modernresources.html (last accessed Apr. 17, 2010).

Last updated: Aug 29, 2010
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T. (Date of Last Update at bottom of page). In Part of web cited (Windows name for file at top of browser), MegaLinks in Criminal Justice. Retrieved from http://www.drtomoconnor.com/rest of URL accessed on today's date.

*THE PROBLEM OF UNDERSEA TRAFFICKING*
First discovered in 2006, about 75 semi-submersible subs are used by drug cartels to move cocaine. Built in jungles up on river systems (in Colombia, where 7 shipyards exist), each sub can go 3,500 miles and carry 10 tons of cocaine. (Source: Spiegel) Many subs are interdicted every year by the Coast Guard.