THE INTERCEPTION OF VESSELS ON THE HIGH SEAS The principal aim of this book is to address the international legal ques- tions arising from the ‘right of visit on the high seas’ in the twenty-first century. This right is considered the most significant exception to the fundamental principle of the freedom of the high seas (the freedom, in peacetime, to remain free of interference by ships of another flag). It is this freedom that has been challenged by a recent significant increase in interceptions to counter the threats of international terrorism and WMD proliferation, or to suppress transnational organised crime at sea, particu- larly the trafficking of narcotics and smuggling of migrants. The author questions whether the principle of non-interference has been so signific- antly curtailed as to have lost its relevance in the contemporary legal order of the oceans. The book begins with an historical and theoretical examination of the framework underlying interception. This survey informs the remainder of the work, which then looks at the legal frame- work of the right of visit, contemporary challenges to the traditional right, interference on the high seas for the maintenance of international peace and security, interferences to maintain the bon usage of the oceans (navigation and fishing), piracy jure gentium and current counter-piracy operations off the coast of Somalia, the problems posed by illegal, unregu- lated and unreported fishing, interdiction operations to counter drug and people trafficking, and recent interception operations in the Mediterranean Sea organised by FRONTEX. Volume 43 in the series Studies in International Law Studies in International Law Recent titles in this series The Democratic Legitimacy of International Law Steven Wheatley Reflections on the UN Declaration on the Rights of Indigenous Peoples Edited by Stephen Allen and Alexandra Xanthaki Contracting with Sovereignty: State Contracts and International Arbitration Ivar Alvik Multi-Sourced Equivalent Norms in International Law Edited by Yuval Shany and Tomer Broude The Distinction and Relationship between Jus ad Bellum and Jus in Bello Keiichiro Okimoto International Humanitarian Law and Terrorism Andrea Bianchi and Yasmin Naqvi The Militarisation of Peacekeeping in the Twenty-First Century James Sloan Accounting for Hunger: The Right to Food in the Era of Globalisation Edited by Olivier De Schutter and Kaitlin Y Cordes Promises of States under International Law Christian Eckart Multilevel Regulation of Military and Security Contractors: The Interplay between International, European and Domestic Norms Edited by Christine Bakker and Mirko Sossai Europe and Extraterritorial Asylum Maarten den Heijer The Practice of International and National Courts and the (De-)Fragmentation of International Law Edited by Ole Kristian Fauchald and André Nollkaemper The Politics of International Criminal Justice: A Spotlight on Germany Ronen Steinke Fighting Corruption in Public Procurement: A Comparative Analysis of Disqualification or Debarment Measures Sope Williams-Elegbe For the complete list of titles in this series, see ‘Studies in International Law’ link at www.hartpub.co.uk/books/series.asp The Interception of Vessels on the High Seas Contemporary Challenges to the Legal Order of the Oceans Efthymios Papastavridis OXFORD AND PORTLAND, OREGON 2013 Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © Efthymios Papastavridis 2013 Efthymios Papastavridis has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work. 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, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84946-183-2 Typeset by Hope Services, Abingdon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall Foreword Debates regarding the permissible scope of restrictions on the freedom of the high seas may be traced back to Grotius and Selden. While the Grotian view of the importance of the freedom of the high seas for navigation and communication persists, today there are many challenges of potentially equal common concern, such as the prevention and suppression of acts of terrorism, piracy and the smuggling of drugs. The increasing use of maritime interception on the high seas, whether exercised unilaterally or pursuant to multilateral treaty or UN Security Council authorisation, has led to the need to re-examine the conditions for the lawful exercise of maritime interception and the human rights safeguards and other conditions which should apply. In this thorough and penetrating modern study, Dr Papastavridis conducts such a re-examination in historical and contemporary context, and critiques the extension of the ‘threat to maritime security’ framing to new issues including illicit migration and illegal unreported and unregulated fishing. The depth and breadth of his analysis provides a valuable guide to the current law and practice of maritime interception on the high seas. Catherine Redgwell Oxford, 14 February 2013 Preface This book is based on a PhD thesis awarded by University of London (University College London) in October 2009. It reflects the law as it stood, to the best of the author’s knowledge, on 25 November 2012. An earlier draft of chapter two was published as ‘The Right of Visit on the High Seas in a Theoretical Perspective: Mare Liberum v Mare Clausum Revisited’ (2011) 24 Leiden Journal of International Law 45–69, and of chapter eight as ‘Interception of Human Beings on the High Seas: A Contemporary Analysis under International Law’ (2009) 36 Syracuse Journal of International Law and Commerce 145–228. An earlier version of the author’s arguments relating to piracy off the coast of Somalia in chapter six has appeared in ‘Piracy off Somalia: The Emperors and the Thieves of the Oceans in the 21st Century’, in A Abass (ed), Protecting Human Security in Africa (Oxford, Oxford University Press, 2010) 122–54. Acknowledgements This book began as a doctoral thesis undertaken at University College London and was concluded almost three years after submission of the thesis in August 2009. They say that every book has its own history; this one has been written in many different libraries, such as the IALS library in London or the Peace Palace Library in the Hague; in many different parts of the world, from an apartment in New York to the beaches of sev- eral islands in the Aegean Sea including Amorgos or Karpathos and even in a hospital in Athens, where I had to stay for a week in July 2012. It is a very pleasing – albeit daunting – task to endeavour to thank eve- ryone who has been of support, not only during the four years of doctoral study but also during the years following my return to Greece. The reason is simply that I was extremely fortunate in having received the support, the assistance and the love of many remarkable persons. First and particu- lar thanks are due to my PhD supervisor, Professor Catherine Redgwell, whose commitment and help has been invaluable. I am certain that this work would have been very much the poorer without her influence and her detailed comments upon numerous drafts. Her dedication and her patience with regard my infamous ‘punctuality’ and my propensity to use Latin maxims have been extraordinary. I was fortunate also in having Professor Vaughan Lowe and Professor Malgosia Fitzmaurice as my doc- toral examiners, who, with their valuable comments, greatly improved the present work. I am also grateful to those academics and those practitioners in the United Kingdom, in Greece and in other parts of the world who were kind enough to speak to me about and support my research, or to offer comments on earlier drafts of certain chapters. I am especially thankful to Dr Douglas Guilfoyle, Richard Gardiner, Lt Commander Brad Kieserman, Captain J Ashley Roach (Ret), Professor Myron Nordquist, Professor Maria Gavouneli, Dr Anastasia Strati, Professor Ilias Bantekas, Dr Erieta Skalieri, Judge Linos-Alexandros Sicilianos, Professor Emmanuel Roucounas, Professor Achilles Skordas, Professor Antonios Bredimas, Professor Tulio Scovazzi, Professor Tulio Treves, Dr Seline Trevisanut, Dr Irene Papanikolopulu, all of whom, by providing valuable assistance dur- ing different stages of writing, have each made their unique contribution to this work. I must particularly thank my ‘anonymous source’ for pro- viding me with priceless information and for enlightening me in many respects about contemporary policing on the high seas. Furthermore, spe- cial thanks are due to all my teachers in International Law in all academic