RESPONDING TO LAW OF THE SEA VIOLATIONS.

• Author: Klein, Natalie

I INTRODUCTION

Since its early history, the law of the sea has encompassed diverse claims and counterclaims among the key actors. (1) Although the law of the sea has significantly evolved to a dense complex of rules governing all activities in maritime areas across 70% of the Earth's surface, claims and counterclaims persist. What is notable is that the key constitutive document for the law of the sea, the UN Convention on the Law of the Sea ('UNCLOS' or 'Convention'), (2) anticipates varied circumstances where its rules will be violated and provides for the lawful responses that may follow a rule violation. This phenomenon is not unique to the law of the sea--the inevitability of international law disputes arising is manifest in the inclusion of dispute settlement procedures in many treaties. UNCLOS is exceptional in the latter regard for including compulsory jurisdiction for disputes arising that concern the interpretation or application of the Convention. (3) However, even before resort to dispute settlement procedures occurs, other actions may be contemplated, including those set out in UNCLOS itself. These responses are the focus of the current article.

How a State responds to perceived violations of the law of the sea is an increasing source of tension in international relations and is manifest in many contemporary settings. For example, the United States continues its Freedom of Navigation program throughout the world as a means of demonstrating its disagreement with certain claimed rights to maritime space that potentially impinge on navigational rights. (4) During 2019, Iran and other States engaged in diverse confrontations in the Strait of Hormuz, resulting in vessel and crew detentions. (5) China has deployed its maritime militia, coast guard and naval assets in response to perceived resource violations in the South China Sea and East China Sea, which partly aligns with Chinas disputed territorial sovereignty claims but also its disputed rights over maritime space. (6) There are thus many examples where State authorities are acting to preserve their rights in maritime space but the legal frame for assessing these responses varies.

One purpose of this article is to highlight the available legal options for responding to law of the sea violations, other than turning to formal dispute settlement procedures. (7) Another purpose is to consider the legal and political ramifications for the chosen responses. For the legal perspective, it will be seen that there are lawful parameters for actions taken in response to a perceived violation of the law of the sea. From a political perspective, the consequences may have strategic or military dimensions, especially where the responses are considered as falling within a 'grey zone' between war and peace. (8) The claims and reactions between States may be cast as grey zone strategies, whereby goals are sought 'without escalating to overt warfare, without crossing established red lines, and thus without exposing the practitioner to the penalties and risks that escalation may bring'. (9) The latter dimension has been examined in security studies literature and while necessary to acknowledge in the present analysis, the focus is more so on legal consequences. Indeed, Australia has noted the increased use of'measures short of war' and observed the need to 'prevent the erosion of hard-won international rules and agreed norms of behaviour that promote global security'. (10) The challenge thus presented in this article is how to maintain a robust rules-based approach in responding to law of the sea violations so as to ensure a minimum public order in the oceans.

To this end, the article proceeds as follows. In Part II, I will address the responses that are set out in UNCLOS itself. Two examples are presented in this regard: the first addresses passage in the territorial sea and the second is concerned with fishing in the Exclusive Economic Zone ('EEZ'). As there are other examples of where UNCLOS provides for the responses that States have available when there is a perceived violation of an UNCLOS requirement, (11) I also consider the question of whether UNCLOS should be viewed as a 'self-contained regime', as occurred in the Tehran Hostages case. (12) In Part III, I assess one of the more common responses to law of the sea violations, which entail protests and acts of retorsion. Protests are important for demonstrating a lack of acquiescence and are most typically communicated in written form. Retorsion refers to reactions of a State to the actions of another State where that reaction is not unlawful. (13) Where the reaction of a State to an unlawful act is unlawful in its own right then it may constitute a countermeasure. Part IV examines the requirements for countermeasures as a circumstance precluding wrongfulness under the law of State responsibility. Resort to countermeasures has been contemplated as a means of responding to illegal fishing on the high seas as well as the transport of weapons of mass destruction in the face of flag State failures to exercise effective jurisdiction over their vessels. (14) In Part V, I briefly address other responses to law of the sea violations that draw from general international law: using force; suspension or termination of treaties; and, alternarive agreements, either relevant in relation to treary interpretation or as another means of augmenting the actions available to States for responding to actual or suspected law of the sea violations. The variety of responses available underlines the important role for international law in regulating State decision-making over maritime activities and in reducing the 'grey zones' of operation at sea.

II RESPONSES WITHIN UNCLOS

To understand the contours of the permissible responses that a State (often the coastal State) may take in responding to transgressions against the rights held by that State, one question is the extent that a State is constrained by the designated course of conduct anticipated within UNCLOS. Within UNCLOS, ocean space is divided into a series of maritime zones and States have different rights and duties within each of those zones. Where a coastal State has prescriptive jurisdiction in its territorial sea or EEZ, (15) UNCLOS usually anticipates enforcement jurisdiction so that the coastal State can police and enforce its laws. (16) However, UNCLOS also prescribes and proscribes coastal State conduct within its maritime areas in response to perceived violations of its laws. These conditions emerge because of the more limited coastal State rights and authority over maritime areas compared to the plenary sovereignty enjoyed over land territory.

The discussion in this Part addresses two examples of coastal States' permissible responses to perceived violations of their rights. First, in the territorial sea, the coastal State has sovereignty, but that sovereignty is subject to the right of vessels flagged to other States to traverse the territorial sea in innocent passage. UNCLOS anticipates that the right of innocent passage will be violated on occasions and provides for the response of coastal States in this situation. Second, in the EEZ, coastal States have sovereign rights over living marine resources and enforcement jurisdiction over foreign-flagged vessels for violations of fisheries laws and regulations. UNCLOS again thus anticipates that coastal States' fisheries laws will be violated and it creates procedures and limitations on the coastal State's exercise of enforcement jurisdiction. The final section of this Part contemplates whether the permissible responses under UNCLOS indicate the only permissible responses. In this section, I answer the questions of whether or when UNCLOS should be considered a 'self-contained regime'.

As it is notable that the drafters of UNCLOS anticipated that some of the rules enshrined therein would be violated and that the responses to such violations should also be articulated within the applicable body of rules, the enduring importance of the legal framework should be evident. In other words, UNCLOS continues to matter even when it is being violated. The 'grey zone' issues emerge, despite the existence of these rules, because the rules setting out the possible responses allow for flexibility or discretion in the action undertaken.

1. Passage within the Territorial Sea

   Under UNCLOS and customary international law, the coastal State has sovereignty over the water column, seabed, subsoil and above air space in the territorial sea. (17) Pursuant to article 2 of UNCLOS, that sovereignty is exercised subject to the Convention and to other rules of international law. (18) UNCLOS contains provisions setting out coastal State rights and responsibilities in relation to the passage of vessels through the territorial sea. (19) The vessels of other States have the right of innocent passage through the territorial sea. (20) The right of innocent passage requires foreign vessels to proceed continuously and expeditiously through the coastal State's territorial sea and refrain from actions that threaten the peace, good order or security of the coastal State. (21) It is generally accepted that merchant vessels engaged in non-innocent passage fall within the plenary jurisdiction of the coastal State. (22)

   The right of innocent passage must be exercised in conformity with the Convention 'and with other rules of international law.' (23) Where the coastal State considers that passage is not innocent, UNCLOS provides for a response: the coastal State 'may take the necessary steps in its territorial sea to prevent passage'. (24) The question necessarily arises as to what conduct constitutes 'necessary steps'. This term is not defined in the Convention, nor generally in the domestic legislation of States. (25)

   Barnes has observed that the 'necessary steps' most likely involve the following:

   A logical first step is for the State to verify the...