This article analyses the interplay between politics and law in the recent attempts to strengthen the humanitarian commitment to saving lives in mare liberum. Despite a long-standing obligation to aid people in distress at sea, this so-called search and rescue regime has been marred by conflicts and political standoffs as states were faced with a growing number of capsising boat migrants potentially claiming international protection once on dry land. Attempts to provide a legal solution to these problems have resulted in a re-spatialisation of the high seas, extending the states’ obligations in the international public domain based on geography rather than traditional functionalist principles that operated in the open seas. However, inadvertently, this further legalisation has equally enabled states to instrumentalise law to barter off and deconstruct responsibility by reference to traditional norms of sovereignty and maritime law. In other words, states may be able to reclaim sovereign power by becoming increasingly norm-savvy and successfully navigating the legal playing field provided by the very expansion of international law itself. Thus, rather than being simply a space of non-sovereignty per se, mare liberum becomes the venue for a complex game of sovereignty, law and politics.
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Note, however, that our argument differs from a neorealist logic of anarchy as it argues how sovereign power is exercised through the very normative framework that seeks to curtail it.
Both principles considered international customary law and equally codified within the global maritime search and rescue regime. See, in particular, the 1979 Convention on Maritime SAR and the 1974 International Convention on SOLAS.
Since the 1990s, there have been calls for interdisciplinarity and ‘dual agendas’ between IL and IR scholars. This has resulted in a growing economy of interdisciplinary research. Although this forms an important background to the current article, space does not allow us to rehearse this debate here. Early contributions to the debate are Abbott (1989) and Burley (1993). Interdisciplinarity has also been discussed in special issues in some of the highest-ranking journals in both IL and IR (including the American Journal of International Law 1999 and the International Organization 2000), and has resulted in collective volumes (e.g. Byers 2000; Reus-Smit 2004). The predominantly liberal calls for interdisciplinarity have been countered by realists, arguing that international law has limited or no influence on international relations (Watson 1999; Krasner 2004; Goldsmith and Posner 2005). Similarly, more critical reflections on the prospects for interdisciplinarity have also emerged (e.g. Young 1992; Beck 1996; Klabbers 2005; Koskenniemi 2009, 2012). For overviews of two decades of interdisciplinary research, see Beck (2009) and Dunoff and Pollack (2013).
In this article, reference will be made to IR and IL (in capitals) to indicate the academic disciplines; in small caps, international relations and international law signify the empirical and/or practitioner field.
Case of the S.S. Lotus (France vs Turkey), 7 September, 1927, Permanent Court of International Justice, PCIJ Series A, No. 10, p. 14.
See, for example, the 1934 Montevideo Convention on the Rights and Duties of States.
Island of Palmas Case (The Netherlands vs the United States), Permanent Court of Arbitration, 2 RIAA 829, 1928, p. 838.
Separate Opinion of Judge Anzilotti to the Austro-German Customs Union Case (Austria vs Germany), Advisory Opinion, Permanent Court of Justice, PCIJ Series A/B, No. 41, 1931 (emphasis added).
Island of Palmas Case, 2 RIAA 829, 1928, p. 839.
Nationality Decrees in Tunis and Morocco (Britain vs France), PCIJ, Series B, No. 4, 1923, p. 24; see also the Wimbledon Case.
Aegean Sea Continental Shelf (Greece vs Turkey), ICJ, Contentious Cases, 1978, pp. 32–3.
In the European context, a leading case is Al-Skeini and Others vs United Kingdom, European Court of Human Rights, Appl. No. 55721/07, 7 July, 2011.
Arguably, some earlier writers on international law had a harder time accepting this, referring instead to the sovereign flag as appropriating ships into ‘floating territory’ — a notion since debunked (Ross 1961: 172).
The 1982 Convention on the Law of the Sea, Article 55.
The 1982 United Nations Convention on the Law of the Sea (UNCLOS), Article 98(1) and the 1974 International Convention on SOLAS, Chapter V, Regulations 10(a) and 33. This entails a positive obligation of flag states to adopt domestic legislation that imposes penalties on shipmasters who ignore or fail to provide assistance (Pugh 2004). In practice, however, many states have failed to do so and enforcement often remains difficult (Cacciaguidi-Fahy 2007).
UNCLOS, Article 98(2).
SOLAS, as amended.
Although accepting the basic social ontology of sovereignty, however, rationalist approaches do not take that to bear on their mainstream analyses (Aalberts 2012a).
This rationalism vs constructivism, and the subsequent calls for their synthesis, has been a prolific research agenda in the past decades. We do not want to rehearse a well-debated issue here, but refer to the introduction of the two logics by March and Olsen (1989, 1998), and to the overview of the rationalist — constructivist debate by Fearon and Wendt (2002).
As a matter of modern international law, a state’s territorial waters may extend 12 nautical miles (22 km) from the baseline, which the low water mark or internal waters (Article 3 of the 1982 Convention on the Law of the Sea). This belt is regarded part of the state’s sovereign territory for all purposes, save that international maritime law demands that states allow foreign ships innocent passage. In addition, certain sovereign functions may be exercised within an additional contiguous zone extending up to 24 miles from the low water mark. Although the contiguous zone is technically considered the high seas, states are allowed to exercise control and checks to ‘prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations’ (Article 24(1) of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone). Finally, states may extend exclusive claims, for example, to fishing within the exclusive economic zone, extending 200 miles from the baseline (Article 56 of the 1982 Convention; see also Shaw 1997: 390 ff).
See, in particular, the 1982 UNCLOS, Article 98; the 1974 SOLAS; and the 1979 SAR Conventions.
Outside Europe, the most notorious example of such a détente concerned the Norwegian ship MV Tampa that, in 2001, responded to the Australian search and rescue authorities’ request to investigate a distress call from an Indonesian vessel, which turned out to carry 433 Afghan asylum-seekers. Australia refused to let the Tampa enter Australian waters. Health problems on board made the Tampa ignore this and the ship was subsequently boarded by Australian forces. Following another week of negotiations, Australia struck a deal with Papua New Guinea and Nauru where the asylum-seekers were taken for processing. The incident gave rise to Australia’s ‘Pacific Solution’, a plan to intercept boat migrants and take them to offshore island states for asylum processing (Willheim 2003; Barnes 2004; Pugh 2004; Kneebone 2006).
Amendments to Chapter V of the SOLAS Convention, and 2–4 of the Annex to the SAR Conventions. Entry into force on 1 July, 2006.
International Maritime Organization, ‘Guidelines on the Treatment of Persons Rescued at Sea’, MSC.167(78), 20 May, 2004, Principle 6.17.
SAR Convention, Article 3(1)9 and SOLAS Convention, Article 4(1)1.
International Maritime Organization, ‘Principles Relating to the Administrative Procedures for Disembarking Persons Rescued at Sea’, FAL.3/Circ.194, 22 January, 2009, Principle 3.
Department of Information, Malta, Press Release No. 1094, 19 July, 2006.
Whether or not this is a correct interpretation is debatable. Under the 2004 amendments, the state within whose SAR zone rescue takes place has the responsibility for ‘coordinating’ that persons rescued are disembarked at a place of safety. The dominant interpretation is that this entails allowing disembarkation at the state’s own ports unless disembarkation can be arranged elsewhere. Yet, the language is clearly a compromise and a number of states still deny that the new amendments entail a hard obligation to allow disembarkation.
Council Decision 2010/252/EU, 26 April, 2010.
Council Decision 2010/252/EU, 26 April, 2010, Part II, Principle 2.1.
European Parliament vs Council of the EU, Case C-355/10, 5 September, 2012.
The number is based on press reviews and the real number could thus well be even higher (Fargues 2014).
According to Article 110 of UNCLOS, a military or government vessel may only approach another ship to check its identity; interception; or obstruction of passage is prohibited unless the ship is without nationality, and reasonable grounds exist to suspect that the ship is engaged in piracy, slave-trade or illegal broadcasting. In all other instances, explicit permission has to be obtained from the flag state of the ship in question. Additional legal basis for intercepting migrant vessels may be found, for example, in the 2004 Protocol against Human Smuggling on Land, Sea and Air to the 2000 Convention on Transnational Organized Crime, which allows states to intercept vessels on the high seas following consultation with the flag state, if there is reason to suspect that the vessel is engaged in the smuggling of migrants. As noted above, states are further allowed to exercise ‘necessary’ migration control within the so-called contiguous zone, extending another 12 nautical miles from their territorial waters.
The Treaty of Friendship, Partnership and Cooperation between the Italian Republic and Great Socialist People’s Libyan Arab Jamahriya, 30 August, 2008.
Hirsi Jamaa and Others vs Italy, European Court of Human Rights, Appl. No. 27765/09, 23 February, 2012, Paragraph 95.
‘In the Government’s view, the legal system prevailing on the high seas was characterised by the principle of freedom of navigation. In that context, it was not necessary to identify the parties concerned. The Italian authorities had merely provided the necessary humanitarian assistance. Identity checks of the applicants had been kept to a minimum because no maritime police operation on board the ships had been envisaged’ (Ibid., Paragraph 96).
In particular, the prohibition against non-refoulement derived from Article 3 of the European Convention on Human Rights and from the prohibition against collective expulsions in Article 4 of Protocol 4.
Customary international law does establish principles whereby a secondary responsibility may fall upon Italy for ‘aiding or assisting’ another state in the commission of an internationally wrongful act. See, in particular, the International Law Commission, Articles on State Responsibility, Article 16. Yet, in practice, this sort of indirect obligation has proved difficult to invoke in regard to human rights, and it demands that both states are bound by the same international treaties (Gammeltoft-Hansen 2012).
In August 2009, Italian authorities rescued a boat with five Eritreans close to Lampedusa. The 75 other passengers originally on board had died of dehydration and starvation during the 3 weeks the boat had been at sea. The survivors claimed that at least ten ships had passed them by without rescuing them. In addition, the Italian Ministry of the Interior accused Malta’s Maritime Squadron of spotting the boat 2 days before the Italian interception. According to the survivors, the Maltese authorities had supplied them with water and food supplies but had not taken any steps to rescue them. A spokesperson from Malta’s Armed Forces acknowledged that they had encountered the boat, but claimed the vessel and passengers had appeared to be ‘in very good shape’ and that the migrants had refused assistance (Klepp 2009: 9). See further Repubblica, 22 August, 2009.
In addition to the above strategies, another one can be identified in international practice. This concerns the case of Australia, which has been involved in manipulating territorial demarcations, in relation to a number of islands near its coastal waters in order to shift humanitarian responsibility of refugee protection. The best-known case in this regard is the Tampa incident (Budz 2009).
See also the Wimbledon case: ‘No doubt any convention creating an obligation of this kind places a restriction upon the exercise of the sovereign right of the State, in the sense that it requires them to be exercised in a certain way. But the right of entering into international engagements is an attribute of State sovereignty’ (S. S. Wimbledon Case (France, Italy, Japan, United Kingdom vs Germany), PCIJ Series A, No.1, 1923, p. 25).
The option that, if push comes to shove, states can resign or opt out, is often added to this.
To be clear, subjectivity is not defined as antonymous to objectivity: the primitive is ‘subject’ (as noun) rather than ‘subjective’ (as adjective). As opposed to the constructivist notion of identity, the notion of subjectivity does not rely on an understanding of different layers of identity added to a primordial corporate identity (Wendt 1999), but emphasises how any identity is the effect and articulation of discursive power. In addition, and this is crucial for our discussion, the notion of subjectivity interrogates the alleged neutrality of rules as opposed to their political effect in terms of the construction of reality (see also, inter alia, Butler 1996).
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Work leading to this article was presented at the workshop ‘Sovereignty, Territory and Emerging Geopolitics’ at the Danish Institute for International Studies, 3–4 May, 2010; at the 51st Annual Convention of the International Studies Association, New Orleans, 17–20 February, 2010; and at the COST Action IS1003 workshop ‘Organising Fragmented Territoriality’, Zentrum fur Globalieserung und Governance, Hamburg, 15–17 November, 2012. We would like to thank the participants of these workshops for their helpful comments, and in particular Rebecca Adler-Nissen, Katja Freistein, Stefano Guzzini, Philip Liste, Nicholas Onuf, Ronen Palan, Nik Rajkovic, Erna Rijsdijk, Finn Stepputat, Seline Trevisanut, Wouter Werner and Jaap de Wilde.
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Aalberts, T., Gammeltoft-Hansen, T. Sovereignty at sea: the law and politics of saving lives in mare liberum. J Int Relat Dev 17, 439–468 (2014). https://doi.org/10.1057/jird.2014.12
- boat migration
- high seas
- international law
- politics of law