Advancing the Law of Vessel Interference by Non-State Actors

By Wilson, Brian | Texas International Law Journal, Fall 2019 | Go to article overview

Advancing the Law of Vessel Interference by Non-State Actors


Wilson, Brian, Texas International Law Journal


Introduction........................................................159

I. Human Rights Protections for Protesters and Seafarers......165

II. Vessel Interference Activities..................168

III. Arctic Sunrise...............................................170

IV. Freedom of Expression vs . Navigational Freedoms.......178

A. Farley Mowatt, Shell, and other decisions........................178

B. Resolutions Addressing Vessel Interference Adopted in Multilateral Venues ........................................................184

Conclusion......................................................185

Introduction

In 2018 Greenpeace activists illegally boarded the M/T Stolt Tenacity in the Gulf of Cadiz and the M/V Mermaid Searcher in the Port of Taranaki, New Zealand.1 This troubling pattern of conduct implicates navigational rights and security. Since Hugo Grotius advanced his theory of mare liberum approximately four hundred years ago, vessels have had the freedom to operate in the maritime environment without unlawful interference.2 This principle is now codified in multinational treaties and recognized in international tribunal rulings.3 However, vessel interference by non-state actors represents an urgent challenge to safety, security, and maritime mobility. The issue is frequently discussed episodically, however, this article examines vessel interference collectively through the prism of navigational freedoms.

Protest activities on the water may seek to raise awareness of an issue, signal disfavor, influence policy, or prevent something from occurring. The ability to peacefully and lawfully express contrary views is largely protected by domestic authorities as well as multinational human rights instruments.4 The location and scope of protest activity are pivotal response considerations. Although, regardless of geography or action, synchronized attacks on vessels, ramming ships, pointing high-powered lasers at ships, and noncompliant boardings by nongovernmental organizations (NGOs) are illegal.5 Despite striking differences between peaceful expressions and vessel interference, an uneven judicial methodology exists with respect to the latter.6 A patchwork approach has resulted from a predominant focus by some jurists on the propriety of maritime law enforcement responses, along with misguided considerations,7 rather than primarily on whether the activity was lawful, undermined freedom of movement, or prejudiced the legitimate economic interests of others.

Despite piecemeal rulings on protest activity, the application of human rights considerations in the maritime environment is well established.8 Judicial decisions have also focused on national legislation, multilateral authorities, law-of-the-sea principles, and enforcement responses. This article primarily addresses coastal State interests and the deleterious impact of vessel interference on victims, commerce, and a recognized public interest in freedom of navigation. Accordingly, the general principle of exclusive flag State jurisdiction, maritime law enforcement, hot pursuit, use of force, and potentially, detention - although all absolutely crucial inquiries-are. outside the scope of this article. Also outside the scope of this article are coastal State actions that may be necessary to rescue a distressed mariner or prevent harm to a person.9

Advances in maritime technology, improved ship capabilities, and drilling innovations have sparked both unmatched economic opportunities and unprecedented risk for environmental damage. Small fuel spills can spark disproportionate and even devastating harm, and local events can resonate globally.10 Such vulnerability prompted shipping associations to declare at the International Maritime Organization (IMO) that vessel interference activities "pose an unacceptable increased and unnecessary risk to the safety of seafarers on the targeted ship [as well as an] increased risk to the environment when navigation is affected as a result of the protestors actions. …

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