The so-called “Sea Shepherd” activists — Geoffrey Tuxworth, Simon Peterffy and Glen Pendlebury — boarded the Japanese whaling vessel Shonan Maru II early Sunday morning off the southwest coast of western Australia.

….

The three men are members of an Australian environmental organization called Forest Rescue Australia and their mission was designed to prevent the Japanese whaler from tailing an anti-whaling flagship belonging to the Sea Shepherd Conservation Society.

Because this all took place about 16 miles off of the Australian coast, the men boarded the ship and were apprehended by the Japanese vessel within Australia’s contiguous zone. There now seems to be a dispute between the Sea Shepherd organization and the Australian government over the significance of this fact — with the Sea Shepherds believing, while the Australian government is stuck in the position of awkwardly noting that the three men who boarded the vessel are subject only to Japanese laws.

Although the Australian government did eventually work through diplomatic channels to arrange for the release of the three activists, its position was that Australia had no particular claims to jurisdiction over the incident, beyond the fact it involved Australian citizens:

[Federal Attorney-General Nicola Roxon] said consular officials were attempting to contact the men, and the Government’s priority was to ensure their safety and well-being, and return to Australia.
“It is a difficult situation. This incident happened outside our territorial waters, in our exclusive economic zone,” she said.
“But that doesn’t give us rights for Australian law to automatically apply.
“In fact, our advice is that Japanese law will apply because a Japanese boat is the one that’s been boarded.”

The Sea Shepherds do not agree with the Gillard Government’s view:

Capt [Paul] Watson said he had not expected the men to be taken to Japan and charged.

“Considering it was within the 24 miles contiguous zone, which is where the Australian immigration and Customs has absolute authority, we didn’t think the Australian government would allow the Japanese to take Australian citizens out of that area.”

He accused Attorney-General Nicola Roxon of “not doing her homework”, adding the vessel was only 16 miles off the beach.

“This is not some ordinary boat that was boarded, this is a criminal boat supporting a criminal operation.”

Unfortunately for the Sea Shepherds, however, their interpretation of international law is a bit misguided. The contiguous zone’s actual significance is pretty negligible in most contexts, and completely negligible here. The contiguous zone is the band of ocean territory just beyond a nation’s territorial waters, and overlapping with its EEZ. States are permitted to extend this zone up to 24 miles from their coast; this means, in the typical circumstance, a nation’s contiguous zone is a 12 mile band that begins 12 miles out at sea, where the state’s territorial sea ends.

Under Article 33 of UNCLOS,

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

(b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

And that is pretty much the extent of the contiguous zone’s importance, when it comes to a coastal state’s jurisdiction over foreign ships. Moreover, as the Shonan Maru II is not itself a whaling ship or a research ship — it’s basically a bodyguard for the whaling ships, engaged in counter-harassment measures against the Sea Shepherds — it was not even taking any actions which could have subjected it to Australian regulations at the time the Forest Rescue men boarded it. As for Australian criminal laws (even presuming that the Japanese could possibly have committed any violations), such laws are only enforceable in the contiguous zone to the extent that the enforcement was related to violations that occurred or were about to occur within Australia’s territorial sea. Here, all of the events concerned took place outside of territorial waters, and so Australia’s extended enforcement jurisdiction is inapplicable.

As such, if any criminal acts occurred with regard to the boarding of the Shonan Maru, the crimes were probably committed by the Forest Rescue activists rather than the Japanese whalers. In fact, an argument can even be made that, by forcibly boarding a Japanese vessel outside of Australian territorial waters with the intent of detaining it, or at least of diverting its course, the activists were engaging in an act of piracy, pursuant to UNCLOS Article 101. Although the Japanese whalers are hardly innocent when it comes to breaches of international law, in this case, it is the Sea Shepherds that are in the wrong.

-Susan

Which is why Iran’s recently renewed threats to close down trade through the Strait of Hormuz are risky for all concerned. Risky for the rest of the world, because any disruption would contain a severe economic toll. And risky for Iran, because if it ever actually did attempt to shut down the Strait, it would intensely piss off literally the entire world. So, while Iran periodically makes noises about taking such a move, the odds of it actually carrying out on its threats are minimal. Nevertheless, given the costs involved, the risk, however small, is taken extremely seriously by the rest of the world.

But ignoring the reality of the situation for a moment, and pretending as if international law actually possessed the power to effect state’s actions in the Gulf, would Iran actually have the legal right to carry out any of its threats?

For once, international law has a straightforward answer: no. Any attempt by Iran to close the Strait of Hormuz would be unambiguously illegal; the shipping lanes through the Strait of Hormuz, as laid out by the International Maritime Organization, lay within the territorial sea of Oman. Although the 12-mile territorial seas of Iran and Oman overlap at the narrowest points of the Strait, the deepest waters — and thus the shipping channels — lay to the south, within Oman’s territorial waters. As such, any military action by Iran to shut down shipping through Hormuz would inevitably impinge on Oman’s sovereign rights.

But Iran’s legal rights over the Strait of Hormuz vis-à-vis the rest of the world, and ignoring Oman’s sovereignty concerns, are a slightly more complicated question, although even there Iran’s claims are tenuous. The precise extent of Iran’s legal authority, however, differs based upon whether one applies the doctrine of innocent passage or transit passage to the Strait.

Both doctrines concern the passage of ships (as well as planes) through a nation’s territorial sea, which extends up to 12 miles from a state’s coast. The doctrine of innocent passage, which bears a greater claim to customary international law status, applies throughout all the territorial seas of the world. The concept of transit passage, in contrast, applies solely to those sections of territorial seas provide an exclusive link between two larger bodies of waters — i.e., straits.

The right of innocent passage, laid out in Articles 17 – 26 of the United Nations Convention on the Law of the Sea (“UNCLOS”), protects the right of ships in transit to pass through another nation’s territorial sea, subject to certain regulations that may be imposed by the sovereign. Passage is considered innocent “so long as it is not prejudicial to the peace, good order or security of the coastal State.” Innocent passage, however, can be subject to certain conditions imposed by the sovereign state, and may in fact be suspended temporarily in times of emergency.

In contrast, transit passage, which is regulated by Articles 37 – 44 of UNCLOS, is nonsuspendable, and not limited to innocent passage. The conditions that may be imposed by sovereign states are limited, and not subject to any real teeth. So long as a ship is not engaged in any nontransit activities and complying with certain traffic and safety measures, coastal States must permit ships to pass through their territorial seas.

So if the Strait of Hormuz is governed by transit passage, Iran’s legal ability to take any action to impede transport through the strait, even against an unfriendly foreign nation’s warships, is more or less nil. If, on the other hand, the regime of innocent passage applies, Iran has a fair bit more wiggle room to work with. Particularly in a situation where hostilities are shading towards war and the use of force, where a coastal state’s territorial waters governed by a regime of innocent passage, that state has a non-negligible claim to a right to enforce extensive regulatory control over the area, up to and including an ongoing suspension of all transit rights.

The question then is whether the Strait of Hormuz is subject to transit passage or not. Textually, it would seem clear that the Strait of Hormuz falls with Article 37′s scope, as it is a “strait[] which [is] used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.” Thus, under UNCLOS’s text, a strait like the Strait of Hormuz — which connects the Persian Gulf’s EEZ to the Strait of Oman’s EEZ, as well as the high seas beyond — is subject to transit passage. So why doesn’t that settle the question for good as to what transit regime applies here?

Well, for one, neither the U.S. nor Iran have ever actually gotten around to ratifying UNCLOS. Since neither state has ever entered the treaty, its terms can only apply if the terms are also obligatory under customary international law. And there, opinions differ, with no few authorities holding that the general right of transit passage has yet to be established outside of treaty-conferred obligations.

On the other side of that argument is the United States, which, despite its somewhat contentious and complicated relationship with UNCLOS, has long held that the bulk of UNCLOS’s provisions are merely a codification of customary international law. This includes UNCLOS’s provisions regarding transit passage, as U.S. authorities have repeatedly asserted these norms to be a component of CIL:

…the United States…particularly rejects the assertions that the…right of transit passage through straits used for international navigation, as articulated in the [LOS] Convention, are contractual rights and not codification of existing customs or established usage. The regimes of…transit passage, as reflected in the Convention, are clearly based on customary practice of long standing and reflects the balance of rights and interests among all States, regardless of whether they have signed or ratified the Convention… (Diplomatic Note of August 17, 1987, to the Democratic and Popular Republic of Algeria (intermediary for Iran)).

And,

…the regime [of transit passage] applies not only in or over the waters overlapped by territorial seas but also throughout the strait and in its approaches, including areas of the territorial sea that are overlapped. The Strait of Hormuz provides a case in point: although the area of overlap of the territorial seas of Iran and Oman is relatively small, the regime of transit passage applies throughout the strait as well as in its approaches including areas of the Omani and Iranian territorial seas not overlapped by the other. (Navy JAG, telegram 061630Z June 1998).

In contrast, Iran has consistently maintained the opposite view, holding that transit passage only exists among states that have agreed to submit to that regime via ratification of an international agreement. Although Iran has not ratified UNCLOS, it has signed the convention, and with its signature it submitted the following declaration:

Notwithstanding the intended character of the Convention being one of general application and of law making nature, certain of its provisions are merely product of quid pro quo which do not necessarily purport to codify the existing customs or established usage (practice) regarded as having an obligatory character. Therefore, it seems natural and in harmony with article 34 of the 1969 Vienna Convention on the Law of Treaties, that only states parties to the Law of the Sea Convention shall be entitled to benefit from the contractual rights created therein.

In other words, Iran viewed Article 38 of UNCLOS, concerning the right of transit passage through straits used for international navigation, to be an exclusively treaty-based obligation, and not one of customary international law. As Iran never got around to ratifying UNCLOS, the implication would be that Iran does not in fact believe itself to have acceded to any such treaty obligation. This position has been confirmed by numerous assertions by Iranian officials in the decades prior to and since UNCLOS’s entry into force.

Iran is not alone in this belief about transit passage’s status under international law, either. Oman, motivated by a similar interest in the Strait of Hormuz, also filed a declaration along with both its signature to and ratification of UNCLOS, which questioned the CIL status of transit passage, and also suggested that Oman did not intend to adopt the obligations of transit passage conferred by treaty, either. Its ratification statement indicated that it only recognized and agreed to compliance with provisions concerning the regime of innocent passage — and not that of transit passage. As such, Oman’s ratification was subject to the condition that “innocent passage is guaranteed to warships through Omani territorial waters, subject to prior permission.”

Although these declarations have never actually been enforced or acted upon by either Oman or Iran, making the bulk of state practice with regards to the Strait of Hormuz to be in conformity with the existence of transit passage through the Strait, it does not appear that either coastal state believes itself to be legally bound by a customary international law of transit passage, either. Moreover, state practice and opinio juris elsewhere in the world likewise fails to unambiguously confirm the existence of a customary international law of transit passage. As such, it cannot be automatically assumed that Iran does not possess a right to limit transit through the Strait of Hormuz, at least to the extent permitted by the regime of innocent passage.

While the practical effect of transit passage’s precise status under international law will likely (definitely) be minimal in shaping events in the Persian Gulf in the days and weeks to come, parties on both sides of the dispute will be likely to invoke the application of international law in their rhetoric, as they seek to imbue their military actions with the color of law. Still, as the Strait of Hormuz does not belong to Iran alone, and Iran’s sovereign claims over the Strait are limited by Oman’s own claims to its territorial seas, any action taken by Iran to close the entirety of the Strait will necessarily be an act of force prohibited by the UN Charter, and unquestionably a violation of international law.

-Susan

What happens if extraterrestrials slip through our solar system undetected, and are only encountered for the first time when they arrive on Earth itself?

Space law would no longer be applicable; rather, the situation would be governed by more traditional and more firmly established notions of international law. Although international/space law has not yet reached an ironclad understanding on where precisely outer space begins, for purposes of domestic laws and aeronautics regulations, the limit is most often set as the lowest point from sea level where an object can orbit the earth, i.e., 62 miles/100 kilometers up. (Objects cannot orbit for long at this altitude, due to air resistance, but they can take a few spins around the block.) Australia, in fact, has been proactive at setting the 100km boundary, and it does seem likely that it is eventually going to become the standard delineation.

So if aliens visit earth and are doing anything other than orbiting the planet, it’s good old fashion international law that’s going to provide any legal framework for the alien visitation. This means that, in practice, law will be a lot more relevant than it would be in the case of an outer space encounter.

A state’s sovereignty over its territory is one of the most fundamental concepts of international law. A state may not take action within another state’s territory absent consent. There are exceptions to every rule, of course. But although many parts of international law are often discarded or ignored, respect for a sovereign state’s territory is taken very seriously indeed.

In contrast, it would be fair to say that, in the not exactly probable event of an alien encounter in space, international law would most likely be given minimum lip service and little more. Space law is an infant body of law, and for obvious reasons, it is overloaded on the opinio juris component as compared to the state practice component. That’s a good indication that, in the event of a dramatic change in circumstances, states will not be reluctant to act in ways inconsistent with space law as it is currently understood, and instead will seek to justify their actions after-the-fact on the basis of previously “undiscovered” interpretations of law.

So, in a nutshell: international law would not survive five minutes past the first alien encounter in space.

On Earth, however, territorial sovereignty has such a deeply established normative and positive force in shaping the relationships between states that even in the event of an extraterrestrial landing, international law would continue to play a predominant role in how the world community reacted.

The exact strictures of international law to be applied, however, will depend in practice upon the location where the aliens choose to land.

Situation #1: Aliens land in the middle of the Atlantic Ocean and hover out over the high seas.

This is actually the worst possible scenario, for the aliens and probably also for earth. A “too many cooks in the kitchen” problem would quickly develop, as the high seas are open to all states. This includes a freedom of navigation, a freedom of overflight, and a freedom of scientific research. Essentially, every state would be free to go to, investigate, or attempt to talk to the alien spaceship — so that if North Korea wanted to start doing some “scientific research” on the ship, it would not be a straight forward matter for any State to justify prohibiting them from doing so.

If it turns out the aliens are friendly, Earth nations would be able to repel any attempts by non-state actors to attack the spaceship, as all States possess universal jurisdiction over pirates on the high seas. It wouldn’t be too much of a stretch to argue that unprovoked violence directed at a spaceship is an act of piracy, entitling other nations to use force to repel any attempts by private parties to act aggressively towards the spaceship.

But attacks on the spaceship by State actors will not be so easily regulated. Under Article 95 of the Convention on the Law of the Sea, “Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.” So if it’s North Korea acting aggressively against the aliens, we’ve got a problem.

True, Article 88 of the Law of the Sea Convention does declare that “The high seas shall be reserved for peaceful purposes.” But in the words of Captain Barbossa… this is really more of what you’d call a guideline than an actual rule. It doesn’t actually prohibit military actions, per se. It is international law of war, not the law of the sea, that would be the primary body of law to govern hostilities on the high seas. Although under international law, the threat or use of force is traditionally prohibited, it does not, technically speaking, prohibit the use of force against aliens.

Article 2:4 of the UN Charter declares, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” An alien spaceship does not obviously possess territorial integrity or political independence as a state, or at least not so clearly that North Korea couldn’t make a facially legitimate claim that Article 2:4 doesn’t apply to them. So the aliens would be fair game.

This doesn’t necessarily mean they’re defenseless, under international law. The right of self-defense is preserved in the UN Charter, and self-defense does extend to defense of others (I’ll assume for now aliens could qualify as part of the “collective” in Article 51) but in the chaos of an international free-for-all on the high seas, this would be of little practical protection. Besides, it’s not exactly settled law, regarding what acts a State can take against an extraterrestrial in the high seas before third party rights of self-defense kick in.

End result? The Law of the Sea isn’t going to be sufficient to protect or regulate any alien encounters on the high seas. If we’re lucky, however, the UN Security Council will be able to reach some kind of agreement and enable collective action to be taken. Under Article 42 of the UN charter, a blockade is one of the actions the Security Council can authorize to restore peace and international order. Although “blockades” are traditionally understood to apply to coastal navigation, it is not a heavy abuse of the language to say Article 42 would permit the Security Council to establish a blockade in the high seas. In this manner, the Security Council could authorize the use of force to protect the alien ship and to impose order on the normally unregulated oceans.

Next up tomorrow: The Law of Aliens, Part III.2: Extraterrestrials in Somalia South Africa and Extraterrestrials in France.

Previously: The Law of Aliens, Part I: The Law of Post-Atmospheric Extraterrestrial Encounters By National or International Organizations, and Part II — The Law of Outer Space Encounters With Extraterrestrials by Sub-State Entities.

-Susan

“On the strength of the gathered evidence, seven captors have been charged with complicity in the commission of the crimes covered by Article 227, Part 3 and Article 126, Item “a”, Part 3 (piracy and kidnapping committed with the use violence and arms by organized group). The eighth suspect has been charged with masterminding the above crimes,” Markin said.

However, it looks as if the hijackers themselves have been making noises about the propriety of Russian jurisdiction over them, both under international law and domestic Russian law:

According to Russian media, hijacking suspects say their case should be heard not in Russia but in Malta, or Sweden – in whose Baltic Sea waters the alleged hijacking occurred. But Bastrykin stressed that Russia now has jurisdiction over the ship and the suspects.

“We have the full legal right to conduct investigative activities with both the ship and its crew,” he was quoted as saying.

Egons Rusanovs, a lawyer at Rusanovs and Partners, says:

Russia has no relation to the current preliminary investigation into this case. This fact contradicts concrete norms of international law, in particular, the convention on maritime law adopted in 1982. This case should be under jurisdiction of either Malta or Sweden.

Dmitry Pronin, a lawyer who represents detained Latvian citizen Vitalij Lepin, believes that “this arrest is illegal and it’s without ground, because in accordance with the Russian Criminal Code, the type of punishment should be decided within 48 hours after the factual detention. In this case it took four days to specify the preventive punishment.”

It’s hard to know if there’s any weight to the hijacker’s arguments without more than that, but I’m highly skeptical about their chances of prevailing on that front. Under the Article 105 of the UN Convention on the Law of the Sea (“UNCLOS”),

On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.

This article reflects longstanding customary international law that grants universal jurisdiction over all acts of piracy on the high seas, and that any state may capture and punish pirates wherever they may be found where they are outside of any other state’s territory. Assuming Russia did capture the Arctic Sea in international waters, Russia is soundly exercising its universal jurisdiction by bringing the pirates to Moscow to stand trial under Russian law. I expect the hijackers are trying to argue they were never pirates in the first place, and so Article 105 is not applicable, but that’s questioning the factual basis of jurisdiction, not the legal basis.

Moreover, while it is hard to get a straight story on the nationalities of the hijackers, all of the Arctic Sea’s crew were Russian, and the hijackers were themselves either Russian or stateless people who habitually lived in Russia. Under Article 6(1)(c) of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, this gives Russia some degree of an international obligation to establish jurisdiction over the pirates, and under 6(2)(a) and (b) clearly had the right to exercise such jurisdiction if it chose to do so.

So if Russia captured the pirate on the high seas, under a combination of passive personality jurisdiction, active personality jurisdiction, universal jurisdiction, and specific grants of jurisdiction under treaties, there is little argument to be made that Russia does not properly have jurisdiction over the pirates.

However, an important question that I’ve not seen definitively answered yet is where exactly in the Atlantic the Arctic Sea was captured by the Russian warship. Was it on the high seas, or in Cape Verde’s territorial waters? UNCLOS provisions on the seizure of pirates extend only to the high seas. Once in a nation’s territorial seas, authorization by the coastal state is required before any such enforcement action can be taken.

All I’ve been able to find on the exact location of the recapture is this:

“I have a report from the Russian Navy that the frigate is going to enter Cape Verde territorial waters,” Alexander Karpushin told the Russian News Service. “The warship has its own search plan.”

Cape Verde has declared that its territorial seas extend to the full 12 miles permitted under international law (see here [DOC]). Although the Russian warship would have had a right of innocent passage within that 12 mile territorial sea if the actual capture took place inside that limit, the question of jurisdiction gets trickier:

“[I]t is universally accepted under international law that law enforcement officials of one state may not act to enforce their laws in areas within the territorial sovereignty of another state. Therefore, the naval vessels or marine police from one state may not enter the internal waters, territorial waters or archipelagic waters of another state to patrol for pirates or to arrest persons for acts of piracy, regardless of where such acts took place.”

Of course, even if the Arctic Sea was in Cape Verde’s sovereign territory, Russia might well have obtained Cape Verde’s authorization before undertaking the capture. In part II of this post, I’ll take a look at what the legal status of Russian jurisdiction might be under the hypothetical scenario that no such authorization was sought or obtained.

-Susan