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Security Studies

ISSN: 0963-6412 (Print) 1556-1852 (Online) Journal homepage: http://www.tandfonline.com/loi/fsst20

Sovereignty at Sea: States and Security in the


Maritime Domain

Renée de Nevers

To cite this article: Renée de Nevers (2015) Sovereignty at Sea: States and Security in the
Maritime Domain, Security Studies, 24:4, 597-630, DOI: 10.1080/09636412.2015.1103132

To link to this article: http://dx.doi.org/10.1080/09636412.2015.1103132

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Security Studies, 24:597–630, 2015
Copyright © Taylor & Francis Group, LLC
ISSN: 0963-6412 print / 1556-1852 online
DOI: 10.1080/09636412.2015.1103132

Sovereignty at Sea: States and Security in


the Maritime Domain

RENÉE DE NEVERS

The oceans present a variety of perils to both states and private


actors, ranging from smuggling to direct attacks on vessels. Yet,
a disconnect exists between states’ maritime power and sovereign
fleets due to the emergence of open shipping registries in the 20th
century. How have great powers like the United States responded to
threats generated by transit of the oceans for legitimate and illicit
purposes? The nature of peacetime security threats that states con-
front at sea has shaped divergent responses. The main maritime
powers draw a distinction between threats aimed at states and
threats to commerce. Where perceived threats to the state are con-
cerned, great powers have sought to revise understandings of the
protections sovereignty provides—specifically, by seeking expanded
interdiction rights—to further their own security goals. When mar-
itime powers perceive that international commerce is under threat,
they delegate the sovereign protection function both upward to
internationally sanctioned maritime coalitions and outward to
private security firms. These policies are responses to the security
challenges that result from the decoupling of sovereign power and
the merchant fleet that followed the emergence of open shipping
registries.

The oceans, zones of anarchy outside any state’s control, present a variety of
perils to both states and private actors. At the same time, disparities in states’
military power are particularly marked at sea. Only a handful of states have
navies capable of conducting protracted operations on the high seas, or of
defending merchant ships flying under their flag. The bulk of commercial

Renée de Nevers is associate professor and vice chair of the Department of Public
Administration and International Affairs in Syracuse University’s Maxwell School.

597
598 R. de Nevers

shipping vessels sail the seas under the flags, and thus the sovereign protec-
tion, of a few states with virtually no military capacity to defend these ships.
This is due to the emergence of open shipping registries, which altered the
practice of sovereignty at sea dramatically in the 20th century. Prior to World
War I, the nationality a ship could claim was based on the assumption that
states, shipowners, and ships themselves must be connected in some way
in order for a ship to be registered under a sovereign state’s flag. Open reg-
istries, which accept ships whose owners have no connection to the state of
registry, emerged after World War I and today over 68 percent of commercial
ships by tonnage sail under foreign flags.1 Most of these shipping flags lack
the capacity to protect their merchant fleets on the high seas.
How have great powers like the United States responded to threats
generated by transit of the oceans for legitimate and illicit purposes? This
question is particularly pertinent given the disconnect that exists between
states’ maritime power and sovereign fleets. This paper seeks to answer this
question by exploring the relationship between power, security provision,
and sovereignty in the maritime domain.
I argue that the nature of peacetime security threats confronting states
at sea has shaped divergent responses. The main maritime powers—those
states with the capacity to act against security challenges at sea—draw a
distinction between threats aimed at states and threats to commerce. Where
perceived threats to the state are concerned, great powers have sought to
revise understandings of the protections that sovereignty provides to ships at
sea to further their own security goals. Concern about illicit trade, particularly
in materials related to weapons of mass destruction (WMD), has led the
United States and others to seek expanded rights to interdiction on the high
seas.
Maritime powers have responded quite differently when they perceive
that global commerce, not state security, is under threat. Piracy has emerged
as a growing problem in several parts of the globe (particularly near Somalia)
but this has not led to a reaffirmation of sovereign naval protection for ships
flying the national flag, because most merchant vessels sail under flags of
states with no capacity to protect their merchant fleets. In a two-pronged
response, great powers have been both delegating the protection function
upward to internationally sanctioned maritime coalitions, and divesting it
outward to private security firms by encouraging the outsourcing of shipping
protection to private armed guards. Each of these responses is grounded in
the practical constraints confronting navies and perceptions of state security
priorities.
Changes in maritime sovereignty help explain these divergent security
responses. Sovereignty is the foundation of the international legal framework

1 United Nations Conference on Trade and Development Secretariat (UNCTAD), Review of Maritime

Transport 2010 (New York: United Nations, 2010), 41.


Sovereignty at Sea 599

that governs the oceans. Sovereign rights and protections have applied not
only on land, but at sea as well; sovereign states have the right to confer
sovereign protections on their ships, both naval and merchant. The principle
of sovereignty is generally respected in the maritime domain, in that states
accept that flag-state jurisdiction protects international shipping from inter-
ference by other states. Indeed, sea law is centered on the sovereign links
between ships and states. Both revised interdiction practices and the out-
sourcing of ship protection reflect the disconnect between sovereign power
and the merchant fleet that followed the emergence of open shipping reg-
istries. Maritime powers have long sought access to foreign vessels to pursue
a range of security and normative goals, and they have honored or revised
sovereign protections in pursuit of their goals. Open registries have led dom-
inant powers, and the United States in particular, to seek modifications in
sovereign practice to pursue their security priorities. U.S. efforts regarding
interdiction and outsourcing illustrate the influence of power on the practice
of sovereignty, but also its limitations. The United States has been careful
to act within the rule-based framework of international law in seeking to
revise sovereign practice, and its efforts have met both support and resis-
tance from other states. As a result, the United States has had mixed success
in modifying understandings of the protections that sovereignty accords to
states.
This paper will proceed as follows. I first provide a brief background
of core understandings of sovereignty and examine their application in the
maritime realm. I lay out how open registries evolved, and their effect on
maritime sovereignty. I then explore state responses to threats that are di-
rected at states and those directed at commercial shipping. I conclude by
evaluating the implications for sovereignty at sea, and the sovereignty norm
more generally.

SOVEREIGNTY AND THE MARITIME DOMAIN

Sovereignty is at the core of the international state system by which the


world has been ordered territorially for centuries. As understood in the late
twentieth and early twenty-first centuries, sovereignty accords all states the
right to territorial integrity and to noninterference in their internal affairs
by other states or actors.2 Sovereignty is also the key requirement for—and
proof of—membership in the international system of states. In this respect,
sovereignty is best understood as a social construct in that it governs relations

2 Stephen D. Krasner, “Sovereignty: An Institutional Perspective,” Comparative Political Studies 21,

no. 1 (April 1988): 89; Robert H. Jackson and Alan James, ed. States in a Changing World: An Analysis
(Oxford: Clarendon Press, 1993); Robert Jackson, “Sovereignty and its Presuppositions: Before 9/11 and
After,” Political Studies 55, no. 2 (June 2007): 297–317.
600 R. de Nevers

among states.3 Thomas M. Franck argues that the sovereign equality of states
both anchors the international community and provides legitimation for the
laws it establishes.4 Finally, sovereignty is associated with a monopoly on the
use of force. The sovereign state is the only unit in the international system
with the legitimate right to use force.5 This is critical to ensuring territorial
integrity and noninterference, and to the protection of domestic order; this
also distinguishes legitimate from illegitimate actors in both the domestic
and international arenas. Sovereignty’s durability is demonstrated by the fact
that state sovereignty today remains “the only universally recognized way of
organizing political life.”6
The Westphalian peace of 1648 is generally credited as the stimulus
for the sovereign state system that we take for granted today. The relatively
static interpretation of sovereignty associated with Westphalia has largely
been discredited, however, and sovereignty in practice has rarely reflected
this idea.7 Sovereignty can be both a norm and a fact, as Robert Jackson
has pointed out, and in each of these guises sovereignty has changed over
time.8 Indeed, “as a global institution, [sovereignty] changes because of what
happens to different states over time, at different rates, and in different
ways.”9 Some scholars point out that sovereignty evolved as a way to settle
contestation over ownership and control, and that in this sense the concept of
sovereignty long precedes Westphalia.10 This is certainly true in the maritime
domain.
The link between states and ships long precedes modern conceptions
of sovereign states; its existence was taken for granted in ancient Greece.11
Merchant and naval ships are, in effect, floating islands with sovereign rights.

3 Thomas J. Biersteker and Cynthia Weber, ed. State Sovereignty as Social Construct (Cambridge:

Cambridge University Press, 1996).


4 Thomas M. Franck, The Power of Legitimacy Among Nations (New York: Oxford University Press,

1990), 39.
5 Max Weber, “Politics as a Vocation,” in From Max Weber: Essays in Sociology, ed. H. H. Gerth and

C. Wright Mills (Oxford: Oxford University Press, 1946), 77–83.


6 Krasner, “Sovereignty: an Institutional Perspective,” 90.
7 Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ: Princeton University Press,

1999), 5–7; Peter M. R. Stirk, “The Westphalian Model and Sovereign Equality,” Review of International
Studies 38, no. 3 (July 2012): 641–60.
8 Robert H. Jackson, Quasi-States: Sovereignty, International Relations, and the Third World (Cam-

bridge: Cambridge University Press, 1993); Andreas Osiander, “Sovereignty, International Relations, and
the Westphalian Myth,” International Organization 55, no. 2 (Spring 2001): 251–87; Alexander B. Murphy,
“The Sovereign State System as a Political-Territorial Ideal: Historical and Contemporary Considerations,”
in State Sovereignty as a Social Construct, ed., Biersteker and Weber; Ronen Palan, “Tax Havens and the
Commercialization of State Sovereignty,” International Organization 56, no. 1 (Winter 2002): 151–76;
Luke Glanville, “The Myth of ‘Traditional’ Sovereignty,” International Studies Quarterly 57, no. 1 (March
2013): 79–90.
9 Ken Conca, “Rethinking the Ecology-Sovereignty Debate,” Millennium 23, no. 3 (March 1994): 706.
10 James A. Caporaso, “Changes in the Westphalian Order: Territory, Public Authority, and

Sovereignty,” International Studies Review 2, no. 2 (Summer 2000): 1–28.


11 Edgar Gold, Maritime Transport: The Evolution of International Marine Policy and Shipping Law

(Lexington, MA: Lexington Books, 1981).


Sovereignty at Sea 601

They have been “treated by maritime custom as a piece of quasi-territory


sailing in the legally undefined vastness of the sea.”12 At sea, sovereignty
has three main characteristics that have been codified in sea law. First, the
link to sovereign states gives ships flag-state protection. The sovereign state,
and no other, has authority over its flagged ships, which gives merchant
ships the right to noninterference.13 Only the navy of the flag-state may
legally board, inspect, or impound ships flying its flag. Second, ships must
establish a connection to a state. Without this, they are considered stateless,
thereby forfeiting the protection the state provides and are thus vulnerable
to any state’s interference. Third, any state may confer on ships the right
to sail under its flag. Sovereignty has thus acted as an ordering principle at
sea. Materially, flag-state jurisdiction clarifies property rights. Institutionally,
it creates a social environment and rules in an anarchic setting, and thus
provides a means to regulate the activities of those traversing the oceans.
Traditionally this connection between ships and states meant that naval
power, economic power, and the flag were linked. This was particularly
evident during the mercantilist era, when the great powers in Europe be-
lieved that control over trade would enhance state power. Great Britain in
particular sought to strengthen British economic—and thus military—power
by limiting trade in British ports to ships carrying goods produced in their
home countries as a way to weaken its trading rival, the Netherlands.14 The
idea of free seas and the Grotian principle that free ships make free goods
emerged in the European context to contest these notions of control.15 But
the belief that maritime trade and state power were closely linked endured
into the twentieth century.

Shipping Sovereignty in the Modern Era


What of the modern linkage between naval power, economic power, and
sovereignty? Sovereign states were traditionally distinguished by positive
sovereignty, which is the ability to protect themselves against encroach-
ment and to maintain internal law and order.16 Positive sovereignty rests on
a state’s physical capacity to sustain its freedom to act or to deter others, and

12 As quoted in Philip E. Steinberg, The Social Construction of the Ocean (Cambridge: Cambridge

University Press, 2001), 56; William McFee, The Law of the Sea (Philadelphia, PA: J. B. Lippincott, 1950),
165.
13 H. Meyers, The Nationality of Ships (The Hague: Martinus Nijhoff, 1967), 1.
14 J. R. Jones, The Anglo-Dutch Wars of the Seventeenth Century (London: Longman, 1996); Daniel

Moran, “The International Law of the Sea in a Globalized World,” in Globalization and Maritime Power,
ed. Sam J. Tangredi (Washington, DC: National Defense University Press, 2002), 224.
15 Gold, Maritime Transport, 44–48; Renée Jeffrey, Hugo Grotius in International Thought (New

York: Palgrave Macmillan, 2006).


16 On positive sovereignty, see: Biersteker and Weber, State Sovereignty as Social Construct, 10;

Jackson, Quasi-States, 72.


602 R. de Nevers

was perceived as especially critical in the maritime domain. Indeed, during


the mercantilist era, the major trading companies of the Dutch, the British,
and others operated in close cooperation with their states’ naval forces.17
Today, some states in the developing world lack this capacity, and a few are
at best legal shells. But their rights as sovereign actors in the international
system remain protected by the norms associated with sovereignty, and are
reinforced in documents such as the UN Charter.18 Sovereignty, then, is em-
bedded in a regime based on mutual recognition by states, and sovereignty
gives states the right to determine their policies—but not necessarily the ca-
pacity to do so.19 Negative sovereignty refers to the normative protections
that accrue to sovereign states on land or sea. Robert Jackson argues that
a “negative ethics” exists regarding intervention or interference with states’
territory or prerogatives. This negative sovereignty is based on the funda-
mental right of sovereign states to nonintervention in their internal affairs,
and implies “freedom from the action of others” in the international arena.20
A disconnect now exists between naval power, commercial maritime
power, and sovereignty at sea. This can be explained in part by the distinc-
tions between positive and negative sovereignty. To begin with, few states
have the naval power to exercise positive sovereignty in terms of sustain-
ing the freedom to act or to protect their interests in the maritime domain.
Only a small number of states are able to field blue water navies that can
operate for extended periods of time on the high seas. The United States
is by far the dominant naval power.21 Indeed, U.S. dominance has given
it “command of the commons,” and the ability to act largely as it pleases
in the maritime domain.22 This command is not uncontested, and China in
particular seeks to protect its territorial and maritime interests from what it
sees as U.S. encroachment.23
Commercial maritime power rests with a range of states. In three
categories—ship ownership, ship building, and the liner trade—different
countries dominate. The two countries that owned the most ships (by ton-
nage) in 2013 were Greece, with 15.2% of the world total, and Japan, with
13.9%. The top three ship-building countries were responsible for over 92%

17Moran, “The International Law of the Sea,” 226.


18Robert H. Jackson, The Global Covenant: Human Conduct in a World of States (Oxford: Oxford
University Press, 2000).
19 Jack Donnelly, “State Sovereignty and Human Rights,” Human Rights and Human Welfare Working

Papers, no. 21 (2004): 2–3.


20 Jackson, Global Covenant, 251; Biersteker and Weber, State Sovereignty as a Social Construct, 10.
21 On different states’ naval capacities, see The Military Balance 2013 (London: International Institute

for Strategic Studies, 2013).


22 Barry R. Posen, “Command of the Commons: The Military Foundation of U.S. Hegemony,” Inter-

national Security 28, no. 1 (Summer 2003): 5–46.


23 China’s efforts to develop the capacity for prolonged maritime activities will take time. James

Kraska, Maritime Power and the Law of the Sea (New York: Oxford University Press, 2011); Christopher
D. Yung et al., China’s Out of Area Naval Operations: Case Studies, Trajectories, Obstacles, and Potential
Solutions (Washington, DC: National Defense University Press, 2010).
Sovereignty at Sea 603

of ship construction in 2013; these are China, with 40.6% of ship-building


tonnage, Republic of Korea, with 33.0%, and Japan, with 18.3%. The top
three liner companies, which run a regular schedule of container shipping
globally, are based in Denmark (Maersk), Switzerland (MSC), and France
(CMA CGM Group).24 Many of these states lack significant naval power.
Greece’s navy, for example, consists primarily of frigates and coastal patrol
vessels, and Switzerland, a landlocked state, has no maritime forces.25
The divergence between maritime power and the capacity of a state’s
merchant fleet is particularly stark. Pre-World War I norms regarding ship
nationality mattered because powerful states sought to give their citizens a
commercial edge in peacetime and to prevent other states’ merchants—or
neutrals—from resupplying states with which they were at war. Open reg-
istries eroded the sovereign link between states and ships sailing under their
flags.
Open registries are distinguished from traditional shipping registries by
three key features: 1) they accept ships that either belong to noncitizens or
were built outside the state of registry; 2) the state maintaining the registry
levies very low taxes on its ships; and 3) the state allows ship operators
substantial regulatory leeway in how they run their ships.26 Over 73 per-
cent of commercial ships by tonnage sail under foreign flags. The two states
with the largest flagged fleets, Panama and Liberia, account for one-third
of deadweight shipping tonnage globally. Neither Panama nor Liberia has
the capacity to conduct naval activities on the high seas. Panama’s navy
has twenty-three coastal patrol vessels; Liberia’s Coast Guard has ten Zo-
diac inflatable boats. Among the ten largest shipping flags, only China
maintains significant naval capability, albeit with currently limited global
reach.27
Open registers have not been free of controversy. Indeed, the term flag
of convenience (FOC) originally was a pejorative used by traditional ship-
ping states.28 Flags of convenience were also regarded by most developing
countries as an infringement on their ability to compete in shipping, and
the Non-Aligned Movement in particular sought to ban open registries in

24 UNCTAD, Review of Maritime Transport 2013 (New York: United Nations, 2013), 51, 58–59. Ship
construction has changed dramatically since 2006, when both the Republic of Korea and Japan built more
ships than China.
25 The Military Balance 2013, 141, 180. For tables of the largest shipowners, shipbuilders, and liner

companies, as well as the major ocean-going navies, see Appendix A.


26 Meyers, Nationality of Ships, 57.
27 Panama and Liberia account for 21.5% and 12.16% respectively. UNCTAD, Review of Maritime

Transport 2013, 55; The Military Balance 2014 (London: International Institute for Strategic Studies,
2014): 233–35, 398, 444.
28 Global patterns of ship ownership had developed during the mercantilist era, and great power

control over international shipping was further strengthened through imperial expansion in the 19th
century. Gold, Maritime Transport, 237-–38.
604 R. de Nevers

international negotiations on the UN Convention on the Law of the Sea (UN-


CLOS).29 The concept of negative sovereignty helps explain the endurance
and spread of open registries. Despite efforts by traditional shipping powers
and developing states to eliminate open registries by calling for a “gen-
uine link” between ships and the states under whose flags they sail, nega-
tive sovereignty enables all states to determine their own requirements for
ship registration, without external interference.30 This is inherent in the legal
equality that sovereignty confers on states.31
Notably, the United States championed the institutionalization of open
registries. The United States supported the transfer of merchant ships to the
Panamanian registry in the 1930s for the protection of Panama’s neutral flag in
the buildup to war. It accepted the Panamanian registry and helped establish
the Liberian registry as means to help U.S. business interests compete against
European shippers.32 The U.S. flag was uncompetitive globally due to the
high costs imposed on shippers by its regulations, and both Panama and
Liberia were friendly to and dependent on the United States.33 Alan W.
Cafruny argues that switching to open registries after World War II enabled
U.S.-owned shipping corporations to gain a competitive advantage in the
bulk shipping trade that European companies had previously dominated.
Moreover, the U.S. government supported flags of convenience to enhance
its global economic power position.34 This reflects the behavior of dominant
maritime states in earlier periods.

SECURITY THREATS AND STATE RESPONSES

Who protects ships at sea? During wartime, this is relatively straightforward:


the laws of war govern state actions on land and at sea, and states protect
their own.35 A state’s ability to defend ships sailing under its flag, however,

29 Philipp Wendel, State Responsibility for Interferences with the Freedom of Navigation in Public

International Law (Berlin: Springer-Verlag, 2007), 11.


30 On the genuine link debate, see: Meyers, Nationality of Ships, 198–222; Margaret G. Wachenfeld,

“Reflagging Kuwaiti Tankers: A U.S. Response in the Persian Gulf,” Duke Law Journal 1988, no. 1
(February 1988): 174–202.
31 Bernd Ladwig and Beate Rudolf, “International Legal and Moral Standards of Good Governance

in Fragile States,” in Governance without a State? Policies and Politics in Areas of Limited Statehood, ed.
Thomas Risse (New York: Columbia University Press, 2011), 201.
32 Rodney Carlisle, Sovereignty for Sale: The Origins and Evolution of the Panamanian and Liberian

Flags of Convenience (Annapolis, MD: Naval Institute Press, 1981).


33 Alan W. Cafruny, Ruling the Waves: The Political Economy of International Shipping (Berkeley,

CA: University of California Press, 1987); Carlisle, Sovereignty for Sale; K. Jack Bauer, A Maritime History of
the United States: The Role of America’s Seas and Waterways (Columbia, SC: University of South Carolina
Press, 1988).
34 Cafruny, Ruling the Waves, 279.
35 Belligerent states have long sought to prevent maritime trade with the enemy—all trade, if possible,

but at a minimum that of contraband and war matériel—which can put other states’ commercial ships
Sovereignty at Sea 605

rests on positive sovereignty and the state’s physical capacities. Indeed, the
degree of respect for a neutral state’s ships in wartime depends on the state’s
ability to enforce this respect.36 Power has thus been an enduring factor in
states’ abilities to protect maritime trade. Warfare at sea has been rare in
recent years. In part this corresponds to the general decline in interstate war
in the international system; it also reflects the disparities in maritime power.37
Nonetheless, threats persist in the maritime domain—but threats to whom?
Absent war, how do states determine threats to their national security? In
his exploration of alliance formation, Stephen Walt proposed that states ally
against countries they believe to be more threatening: states balance against
threats, not power. Critically, Walt argues that when faced with a choice of
aligning with two equally powerful states, “a state will ally with the side
it believes is least dangerous.”38 This points to a critical element regarding
threats: they are often perceived, not objective facts. Moreover, like national
interests, perceptions of threat can change.39
How does this relate to understanding threats at sea? Well into the
twentieth century, it was generally accepted that the paramount purpose of
the navy was to protect maritime trade. Indeed, Alfred Thayer Mahan, in his
influential volume on the history of sea power, stated that “the necessity of a
navy . . . springs, therefore, from the existence of a peaceful shipping, and
disappears with it.”40 This derived from the assumption of a strong linkage
between maritime trade and state economic power.
I argue that states now appear to perceive threats to the state and na-
tional security, and threats to commerce in the maritime domain, as distinct.41
The changing nature of sovereignty at sea helps explain how states deter-
mine state interests and threats in the maritime domain. The expansion of
open registries means that merchant vessels no longer have a sovereign link
with the home states of the shipowners or the corporations shipping their

at risk. Neutral states have sought to defend their commercial trading rights. Thus, many of the laws of
war and neutrality established during the 18th and 19th centuries were intended to clarify belligerents’
rights with regard to other states’ ships. On the evolution of neutrality, see Stephen C. Neff, The Rights
and Duties of Neutrals: A General History (Manchester, UK: Juris, 2000).
36 Elizabeth Chadwick, Traditional Neutrality Revisited: Law, Theory, and Case Studies (The Hague:

Kluwer Law International, 2002), 70. On armed neutrality see Neff, The Rights and Duties of Neutrals, 38.
37 On the decline of interstate war, see Jack S. Levy, “International Sources of Interstate and Intrastate

War,” in Leashing the Dogs of War: Conflict Management in a Divided World, ed. Chester A. Crocker, Fen
Osler Hampson, and Pamela Aall (Washington, DC: United States Institute of Peace Press, 2007).
38 Steven M. Walt, The Origins of Alliances (Ithaca, NY: Cornell University Press, 1987), 264.
39 On defining national interests, see Martha Finnemore, National Interests in International Society

(Ithaca, NY: Cornell University Press, 1996).


40 A. T. Mahan, The Influence of Sea Power Upon History, 1660-1783 (Boston: Little, Brown and

Company, 1898), 26.


41 There is some disquiet in the U.S. Navy about the erosion of the formerly core mission of

protecting a state’s commerce at sea. See Michael C. Grubb, “Protection of Shipping: A Forgotten Mission
with Many New Challenges,” (research paper, Naval War College, Newport, RI, 2006); Milan Vego, “Trade
Protection,” Armed Forces Journal (November 2008).
606 R. de Nevers

goods on those vessels. This blurs the determination of whose national inter-
ests are at stake when merchant shipping is endangered, and may encourage
a decoupling of state threat perceptions and the ship protection function. I
distinguish between perceived threats to states in the maritime domain and
threats posed to maritime commerce. This allows us to examine how states
have responded to the range of peacetime maritime threats in the current
era.
I characterize elements perceived to have a potential negative impact
on domestic security and well-being, or those with a geopolitical motive,
as threats to the state. State security in this context includes border control
and criminal violence. I characterize threats to commerce as those threats
directed toward private vessels. Additionally, threats to commerce lack a
geopolitical aim, and do not generate serious concern about freedom of
navigation, which is considered a key mission in U.S. maritime strategy.

Threats to States
Maritime environments facilitate both legal and illicit exchanges of goods.
This presents states, especially great powers, with the dilemma of how to
protect their territory from potential threats being transported on foreign-
flagged ships during peacetime. Dominant states like the United States worry
about a range of potential threats that could originate from maritime sources.
For example, the United States is the largest market for illegal drugs, and
Washington also worries about both terrorist use of WMD and rogue state
acquisition of WMD technology.42 Drugs do, and WMD might, enter the
United States by sea.43
Where perceived threats to the state are concerned, great powers seek
to revise understandings of sovereignty to further their security goals. This
has involved conscious action to relax the protections associated with the
sovereignty norm to ensure the powerful state’s capacity for self-protection.
These are, in essence, workarounds to enable access in spite of sovereignty.
This is evident in the U.S. response to the drug trade and the potential
proliferation of WMD technology.
This behavior is not new. As Michael Barnett and Raymond Duvall note,
normative structures are defined and infused by power.44 Powerful states of-
ten promote norms, and strong states are better able to use international legal

42 Matthew Bunn, Securing the Bomb 2010: Securing All Nuclear Materials in Four Years (Cambridge,

MA: Belfer Center for Science and International Affairs and the Nuclear Threat Initiative, 2010).
43 Ninety percent of the cocaine smuggled into the United States in 2009 was shipped by sea. Wayne

E. Justice, “Overview of Coast Guard Drug and Migrant Interdiction,” 18 March 2009, http://www.dhs.
gov/news/2009/03/18/testimony-us-coast-guard-drug-and-migrant-interdiction.
44 Michael Barnett and Raymond Duvall, “Power in International Politics,” International Organiza-

tion 59, no. 1 (Winter 2005): 41.


Sovereignty at Sea 607

forums to promote their preferred normative approaches. Moreover, power-


ful states rely on a range of tactics to achieve their goals; in this way they tend
to persuade the strong and compel weaker states to accept their preferred
norms.45 Equally important, powerful states can reject norms and rule-based
institutions if these do not suit their purposes.46 To be sure, this does not
mean that powerful states can simply determine normative frameworks as
they wish; as Neta C. Crawford has pointed out, weak states and actors have
successfully challenged and delegitimized long-standing norms.47 Nonethe-
less, more powerful actors tend to have a built-in advantage in promoting
their preferred normative understandings, both on land and at sea.
In recent decades, the United States has sought to gain easier access to
other states’ flagged ships in peacetime to address perceived threats to the
U.S. homeland. This has involved efforts to modify the guarantee of nonin-
terference associated with flag-state jurisdiction. Washington has used two
means in seeking greater access to foreign-flagged ships: revision of inter-
national legal understandings of state obligations to allow access to search
for specific goods, and bilateral agreements to expedite U.S. boarding of
other states’ flagged ships. Notably, the United States has sought to shape
multilateral treaties to legitimate bilateral ship-boarding agreements. In ef-
fect, it seeks to revise international sovereignty—the formal and informal
rules based on international treaties and law that govern interactions among
sovereign states.48 Its power has facilitated U.S. bilateral actions, but U.S.
efforts to revise international legal understandings have had varied success.
Efforts to gain access to foreign ships in peacetime are not without
precedent—particularly among dominant maritime powers—and they build
on belligerent boarding rights that evolved over centuries of naval warfare.49
When the British Navy dominated the oceans, Great Britain interpreted the
rights of sovereign and neutral ships to suit its own purposes during wars
and in peacetime. Great Britain resorted to ship-boarding agreements in its
effort to abolish slave trading in the nineteenth century and developed an
extensive bilateral treaty network to secure the right to search foreign vessels
for slave traders.50 The United States used similar ship-boarding agreements
during Prohibition, known as “Liquor Treaties,” to quell liquor smuggling
into the United States by sea.51 These ship-boarding agreements honored

45 Renée de Nevers, “Imposing International Norms: Great Powers and Norm Enforcement,” Inter-

national Studies Review 9, no. 1 (Spring 2007): 53–80.


46 Krasner, Sovereignty, 5–6.
47 Neta C. Crawford, Argument and Change in World Politics: Ethics, Decolonization, and Humani-

tarian Intervention (Cambridge: Cambridge University Press, 2002).


48 Donnelly, “State Sovereignty and Human Rights.”
49 Koen Stapelbroek, ed. Trade and War: The Neutrality of Commerce in the Inter-state System

(Helsinki: Helsinki Collegium for Advanced Studies, 2011).


50 David Eltis, Economic Growth and the Ending of the Transatlantic Slave Trade (New York: Oxford

University Press, 1987), 89, 120–22.


51 Wendel, State Responsibility, 215–17.
608 R. de Nevers

the principle of sovereign privileges accorded to ships, while at the same


time they loosened sovereign protections by granting conditional boarding
rights to foreign powers.
To be sure, neither the slave trade nor Prohibition represents a security
threat to the state. Rather, state policy in each case was driven by the desire
to enforce a normative policy position.52 The examples are pertinent here
for two reasons. First, current ship-boarding agreements draw on the model
developed specifically in the Liquor Treaties. Second, these cases demon-
strate that state evaluations of the appropriate use of military means change
over time.

THE DRUG TRADE


The U.S. Coast Guard characterizes the illegal import of drugs to the United
States as “one of America’s greatest maritime-security threats.”53 I treat the
drug trade as a threat to the state for several reasons. To begin with, as noted
previously, threats are perceptual, not objective facts, and what is perceived
as an urgent threat to the state can evolve. Second, as the securitization
literature has demonstrated, issues may be framed in security terms in policy
debates as a way to create greater urgency, and to garner additional support
or resources to address the problems identified.54 Securitization can take on
a life of its own by reinforcing perceptions about threats and the necessary
policy responses.
While crime is generally considered a domestic policing issue, the illicit
drug trade has generated broader concern due to the damage illicit drugs do
to individuals and communities in the United States, and to their corrosive
impact on democracy and the rule of law in the states in which drug traf-
fickers operate. The “War on Drugs” terminology indicates the securitization
of this issue. Moreover, the United States militarized its response to the drug
trade by appointing the Department of Defense the lead agency in the War
on Drugs in 1989, and it has spent between $20 and $25 billion annually to
fight the drug trade in recent years—albeit with limited effect.55 This suggests
that the drug trade is perceived as a threat to the state by policy makers,
regardless of whether security-based responses have been effective in elim-
inating this threat. The drug trade is thus classified here as a threat to the
state.

52 On normative prohibitions, see Ethan A. Nadelmann, “Global Prohibition Regimes: The Evolution

of Norms in International Society,” International Organization 44, no. 4 (Autumn 1990): 479–526.
53 Justice, “Overview.”
54 Barry Buzan and Lene Hansen, ed. The Evolution of International Security Studies (Cambridge:

Cambridge University Press, 2009), 214–15.


55 Peter Zirnite, Reluctant Recruits: The U.S. Military and the War on Drugs (Washington, DC: Wash-

ington Office on Latin America, 1997); Eduardo Porter, “Numbers Tell of Failure in Drug War,” New York
Times, 3 July 2012.
Sovereignty at Sea 609

U.S. efforts to quell the drug trade build on the long-standing goal of
maintaining control of the state’s borders. While drug smuggling by sea
has occurred since at least the 1870s, when opium was smuggled into the
United States from Asia, efforts to prevent the entry of illicit drugs by sea
can be traced to Prohibition, when the U.S. Coast Guard was charged with
preventing alcohol smuggling.56 The Coast Guard relied on bilateral ship-
boarding agreements to gain access to ships suspected of smuggling liquor.
These treaties were negotiated with the major maritime powers active in the
Caribbean, particularly the UK, as well as with Panama.57
Recent U.S. efforts to address the seaborne drug trade to the United
States rely on bilateral and multilateral means. Beginning in 1981, the United
States revived the bilateral model used in the earlier liquor treaties to address
drug smuggling, which was taking place largely on foreign-flagged ships
and in Caribbean territorial waters.58 It also sought to shape international
conventions to legitimate such bilateral agreements. The primary venue was
the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances (the Anti-Trafficking Convention). The United
States promoted the passage of Article 17 of the Convention, which enjoins
signatories to “cooperate to the fullest extent possible to suppress illicit
traffic by sea.” Among other things, Article 17 endorses the establishment of
bilateral agreements authorizing the boarding and search of a state’s flagged
ships.59
U.S. government officials have used this convention to pressure other
states to accept ship-boarding agreements.60 Between 1995 and 2000, as the
cocaine trade that emerged in the 1980s exploded, the United States signed
twenty-nine bilateral agreements with Caribbean and Latin American states.61
The ship-boarding provision of the treaties gave the U.S. Coast Guard the
right to stop, board, and search vessels suspected of illicit activities on the
high seas. The agreements were intended to reduce delays in the process
of inspection, thereby leaving less time for suspect ships to jettison illegal
cargoes.62

56 “Drug Interdiction,” http://www.uscg.mil/hq/cg5/cg531/drug_interdiction.asp. Both the Coast

Guard and the navy are active in responding to peacetime threats. The Coast Guard plays a critical
role due to its law enforcement capacity, which the navy lacks.
57 Wendel, State Responsibility, 216.
58 Ibid., 217.
59 “The International Drug Conventions,” United Nations, https://www.unodc.org/unodc/en/

commissions/CND/conventions.html.
60 Based on discussions with a Coast Guard officer and a former U.S. diplomat, 30 June 2010 and 6

July 2010.
61 The text of the model agreement includes six possible provisions: 1) ship-boarding; 2) entry-to-

investigate; 3) overflight; 4) shiprider; 5) pursuit; and 6) order-to-land. See Joseph E. Kramek, “Bilateral
Maritime Counter-Drug and Immigrant Interdiction Agreements: Is this the World of the Future?” University
of Miami Inter-American Law Review 31, no. 1 (Spring 2000): 133.
62 Ibid., 123.
610 R. de Nevers

Some U.S. bilateral ship-boarding agreements honor sovereign princi-


ples in novel ways. Shiprider agreements, a notable innovation, provide for
an officer of the signatory state riding on a U.S. ship in order to authorize
actions such as the boarding and search of the officer’s state’s flagged ves-
sels, or of other ships in his or her country’s territorial waters. This model is
useful when U.S. ships patrol a particular geographic region as they do in
combating the drug trade; indeed, shiprider agreements are now used off the
west coast of Africa, along the U.S.-Canada border in the Great Lakes, and
in the Caribbean. They have also been used in the South Pacific for fisheries
management. Shiprider agreements are also used between the U.S. Navy and
Coast Guard to flag naval ships as coast guard ships, so they can legitimately
carry out law enforcement activities. U.S. Coast Guard detachments can also
deploy on Royal Navy and Netherlands ships under shiprider agreements.63
Shiprider agreements may be easier to sell to partner states because the
decision to board remains exclusively with the flag-state through its repre-
sentative officer.64 Thus, this mechanism sustains sovereign prerogatives and
may even enhance the state’s legal reach. Like open registries, however, it
fictionalizes the connection between the state and the ship.

THE PROLIFERATION SECURITY INITIATIVE


Following the 11 September 2001 terrorist attacks, the United States again
sought to revise the sovereign principle of noninterference in its effort
to prevent terrorists or pariah states from acquiring WMD. This reflected
widespread concern that terrorists might use these weapons against U.S.
assets abroad or smuggle them into the U.S. mainland. States’ first line of
defense with regard to seaborne terrorists and WMD matériel is to secure
ports, an extremely complex task given the pace and volume of global trade.
In the U.S. case, this has stimulated responses intended to “push the borders
back,” by ensuring that U.S. customs officials know what materials are being
shipped before vessels embark from international ports for U.S. shores.65

63 Author’s discussion with U.S. Coast Guard officer. This has been used in both antidrug and

antipiracy operations. See also: National Security Council, Countering Piracy off the Horn of Africa:
Partnership & Action Plan (Washington, DC, 2008), 11, http://www.marad.dot.gov/wp-content/uploads/
pdf/Countering_Piracy_Off_The_Horn_of_Africa_-_Partnership__Action_Plan.pdf; Lesley Anne Warner,
“Pieces of Eight: an Appraisal of U.S. Counterpiracy Options in the Horn of Africa,” Naval War College
Review 63, no. 2 (Spring 2010): 71; Justice, “Overview”; C. Steven McGann and Richard K. Pruett, “A New
Strategic Architecture for the Pacific,” Pacific Islands Brief, no. 2, (December 2012).
64 Wendel, State Responsibility, 220–23. On sovereignty concerns, see also, Michele Williams,

“Caribbean Shiprider Agreements: Sunk By Banana Trade War?” University of Miami Inter-American
Law Review 31, no. 1 (Spring 2000): 183–84.
65 These include the Megaports Initiative and the Customs-Trade Partnership against Terrorism.

See: “C-TPAT: Customs-Trade Partnership Against Terrorism,” http://www.cbp.gov/border-security/


ports-entry/cargo-security/c-tpat-customs-trade-partnership-against-terrorism; “Cargo Security,” http://
www.cbp.gov/border-security/ports-entry/cargo-security; “Megaports Initiative,” http://nnsa.energy.gov/
Sovereignty at Sea 611

Securing ports, however, fails to address illicit trade between other states
that may have negative consequences for U.S. security, notably black market
trade in WMD components that facilitates proliferation. The threat of rogue
state acquisition of WMD led to the determination that trade in WMD-related
materials posed a potential security threat to the United States and its allies.
To confront this threat, the United States invited ten other states to join it
in establishing the Proliferation Security Initiative (PSI) in May 2003, as an
informal coalition of the willing through which these states could coordinate
to track and interdict WMD-related materials in order to prevent the sale of
these materials to rogue states and nonstate actors seeking to acquire WMD
capability.66 By the end of 2012, over one hundred countries had participated
in PSI activities.67
Because it is not a formal treaty, the PSI generated concerns about
whether it conforms to international law.68 The initial plan called for re-
liance on states’ national authorities and existing international law, rather
than a new treaty. The United States argued that this provided sufficient le-
gal grounds for interdiction.69 The developed states most actively involved
in the PSI established informal agreements and mechanisms to ensure that
prompt authorization for ship boarding can be obtained when needed.70
Beginning in 2004, the United States also signed ship-boarding agreements
with eleven open registry states under whose flags over fifty percent of world
commerce is transported, including those with the largest commercial ship-
ping registries.71 These agreements authorize boarding within a few hours
in the absence of a reply from the flag-state.
Washington also sought to revise international legal conventions to le-
gitimize interdiction activities, but met with little success. The United States
tried to incorporate interdiction as part of United Nations Security Council
(UNSC) Resolution 1540, adopted in April 2004, which requires states to
establish and enforce export controls that criminalize the spread of WMD.

aboutus/ourprograms/nonproliferation/programoffices/internationalmaterialprotectionandcooperation/-
5; “Maritime Transport Security Act of 2002,” http://www.gpo.gov/fdsys/pkg/PLAW-107publ295/pdf/
PLAW-107publ295.pdf. Quote is from Edward Teach, “Containing Terrorism,” 1 September 2003,
http://www.cfo.com/printable/article.cfm/3010255.
66 Andrew C. Winner, “The Proliferation Security Initiative: The New Face of Interdiction,” Wash-

ington Quarterly 28, no. 2 (Spring 2005); Susan J. Koch, Proliferation Security Initiative: Origins and
Evolution (Washington, DC: National Defense University Press, 2012).
67 “Proliferation Security Initiative Participants,” http://www.state.gov/t/isn/c27732.htm.
68 “Statement of Interdiction Principles,” 4 September 2003, http://www.state.gov/t/isn/c27726.htm.
69 Koch, Proliferation Security Initiative, 13–16.
70 Based on discussions with Department of Defense (DOD) official familiar with the PSI, 5 Septem-

ber 2008. See also Stephen G. Rademaker, The Proliferation Security Initiative: An Early Assessment;
Hearing Before the House Subcommittee on International Terrorism and Nonproliferation (9 June 2005),
6.
71 These states are: Antigua and Barbuda, Bahamas, Belize, Croatia, Cyprus, Liberia, Malta, the

Marshall Islands, Mongolia, Panama, and St. Vincent and the Grenadines. “Ship Boarding Agreements,”
http://www.state.gov/t/isn/c27733.htm.
612 R. de Nevers

Later resolutions focused on specific would-be proliferators. UNSC Resolu-


tion 1874, passed in 2009 after North Korea’s second nuclear test, and UNSC
Resolution 1929, passed in 2010, call on member states to inspect cargo
headed to North Korea and Iran respectively, and to seize WMD and related
materials.72 But other states, including China, resisted U.S. efforts to codify a
broad right to interdiction in Resolution 1540.73
Additionally, in 2005 the United States helped promote the passage of
two protocols to the 1988 Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation (SUA), which prohibit shipments
of WMD or related materials, among other things. The United States drafted
the initial language for the new protocols and included broad boarding
provisions. This draft again met strong resistance from other states, and in
the final version elements that these states believed would weaken exclusive
flag-state jurisdiction were eliminated. Instead, extensive boarding provisions
in the protocols safeguard state rights.74

POWER AND INTERDICTION

U.S. efforts to gain greater latitude for interdiction illustrate how powerful
states seek to use international fora to further their security goals. The dif-
ferent outcomes of these two efforts remind us that while power matters
in changing international norms, it also has limits. The United States was
relatively successful in gaining international support for its effort to modify
the 1988 Anti-Trafficking Convention to encourage bilateral ship-boarding
agreements. Its efforts in 2004 and 2005 to change interdiction guidelines re-
garding proliferation, in contrast, were tempered by significant resistance to
changing what many states view as a core protection against more powerful
states: the sovereign right to noninterference. These different outcomes can
be explained by the perceived nature of the threat being addressed as well
as structural and perceptual changes in the international system. The United
States may perceive itself as uniquely threatened by illicit drug smuggling,
but the expanding drug trade is a widely shared concern due to its corrosive
impact on communities and government capacity. Moreover, in the 1980s,
the bipolar international system allayed fears about U.S. power. In contrast,

72 Koch, Proliferation Security Initiative, 27–28.


73 State Department representatives argue that recent UN resolutions include language that supports
U.S. goals of interdiction, but no clear right to interdict was agreed to. “Proliferation Security Initia-
tive,” Federal News Service, 27 May 2008; Douglas Guilfoyle, “Maritime Interdiction of Weapons of Mass
Destruction,” Journal of Conflict and Security Law 12, no. 1 (March 2007): 15.
74 The protocols entered into force on 28 July 2010. See Robert C. Beckman, “The 1988 SUA Con-

vention and 2005 SUA Protocol: Tools to Combat Piracy, Armed Robbery, and Maritime Terrorism,” in
Lloyd’s MIU Handbook of Maritime Security, ed. Rupert Herbert-Burns, Sam Bateman, and Peter Lehr
(Boca Raton, FL: CRC Press, 2009), 187–200; James Kraska, “Grasping ‘The Influence of Law on Sea
Power,”’ Naval War College Review 62, no. 3 (Summer 2009): 127–28.
Sovereignty at Sea 613

most materials necessary for WMD are dual use in nature, which makes
their export legal. And by 2004, the United States was not only the sole
superpower in a unipolar international system, but it had recently flouted
international opinion by initiating a preemptive war in Iraq without UN sanc-
tion.75 Its desire to expand the scope of its power with regard to interdiction
was thus viewed skeptically in many quarters.
Nonetheless, U.S. power gives it leverage at the bilateral level. In the
1980s, the United States used the stick of sanctions and the carrot of economic
aid to compel or induce other states to sign bilateral agreements to combat
the drug trade.76 Direct American influence in several of the open registry
states that signed boarding agreements in the 2000s, such as Liberia and the
Marshall Islands, was significant.77
As globalization has accelerated the pace of ocean transport, concern
about potential threats to states from maritime trade has provoked efforts
by the powerful to revise sovereign protections accruing to ships. These ef-
forts show continued respect for the letter of flag-states’ customary sovereign
privileges, while at the same time powerful states promoted legal means to
loosen the negative protections sovereignty offers. The resistance to U.S. at-
tempts to gain stronger treaty language regarding interdiction also illuminates
enduring support for sovereignty.

Threats to Commerce
Any state can confer sovereign privileges on merchant ships sailing under its
flag, but not all states can ensure their protection. While negative sovereignty
helps shelter vessels from interference by other states, it provides no defense
against the nonstate actors that constitute the main threats to commerce in the
maritime domain today: pirates. When commercial shipping is under threat,
maritime powers have responded in two ways. First, they are delegating the
sovereign protection function upward to internationally-sanctioned maritime
coalitions. Second, states have begun to divest the protection function out-
ward to private security firms. Both responses derive from the disconnect
between positive and negative sovereignty in the maritime domain.
Why is piracy treated here as a threat to commerce rather than to the
state? Certainly, in earlier periods, states played a key role in combating

75 Peter Dombrowski and Rodger A. Payne, “Global Debate and the Limits of the Bush Doctrine,”

International Studies Perspectives 4, no. 4 (November 2003): 395–408.


76 Williams, “Caribbean Shiprider Agreements,” 182–83; Wendel, State Responsibility, 225. Any re-

sentment generated has been tempered by the general appreciation for U.S. assistance in combating the
drug trade, which also poses a threat to Caribbean states.
77 Liberia’s shipping registry is headquartered in Virginia, and the Marshall Islands’ Compact of Free

Association with the United States grants the United States “full authority and responsibility for the defense
and security of the Marshall Islands.” “U.S. Relations with Marshall Islands,” http://www.state.gov/r/pa/
ei/bgn/26551.htm.
614 R. de Nevers

piracy. Yet, the classification as a threat to commerce is appropriate for three


reasons. First, the focus here is on a specific case: the unique threat of piracy
on the high seas off the coast of Somalia. Globally, most acts of piracy take
place in states’ territorial waters or in ports and harbors, and tend to involve
theft, robbery and violence. In these circumstances, the response comes
from the territorial state, and most treat piracy as a criminal act within their
own jurisdiction. This can be seen in the Straits of Malacca and off the west
coast of Africa. In contrast, Somali pirates operate on the high seas. Somali
pirates developed a unique and highly lucrative business model of hijacking
vessels in international waters in the Gulf of Aden and beyond, taking them
to Somali ports, and holding ships and crews for ransom.78 As acts of piracy
increased near Somalia’s coast, merchant ships moved further out to sea and
the pirates followed. In 2011, 236 attacks were attributed to Somali pirates
operating in Somali waters, the Red Sea, the Gulf of Aden, the Gulf of Oman,
the Indian Ocean, and the Arabian Sea.79
Most observers agree that the solution is to deny pirates bases from
which to operate. Indeed, piracy was squelched in the 19th century once
governments demanded that all states eliminate pirates’ ability to operate
from their territory.80 Yet, there is no government in Somalia capable of
quashing piracy on land; the state was for years a legal shell.81
Second, changes in naval doctrine suggest that defending merchant
ships against piracy is no longer perceived as a priority. The primary mission
of U.S. maritime forces (Navy, Marines, and Coast Guard) is to defend sea
lanes of communication (SLOC) against interference caused by excess asser-
tions of jurisdiction by littoral states in order to ensure the global mobility
of U.S. forces. Ensuring freedom of navigation in this way certainly benefits
maritime commerce, but protecting commerce does not drive this mission.
As air power took pride of place in U.S. strategic thinking against a
land-based foe after World War II, the navy felt compelled to defend its role.
A key element of this, from the navy’s perspective, was to sustain its con-
tribution to the war-fighting mission by arguing that the navy was essential
both to the containment of a land power and to expeditionary warfare by
providing the capacity for force projection on to the enemy’s territory. Today,
the joint strategic doctrine of the U.S. Navy, Marine Corps, and Coast Guard

78 Piracy near Nigeria is a growing concern, but still largely occurs in territorial waters. Piracy &

Armed Robbery Against Ships: 2013 Annual Report (ICC International Maritime Bureau, 2014), 21–24.
79 Piracy & Armed Robbery Against Ships, 4. On Somali piracy and modern piracy in general, see

Martin N. Murphy, Contemporary Piracy and Maritime Terrorism: The Threat to International Security
(London: International Institute for Security Studies, 2007).
80 Janice E. Thomson, Mercenaries, Pirates, and Sovereigns (Princeton, NJ: Princeton University Press,

1994).
81 Maritime efforts, the focus here, are one element of a broader strategy. The Contact Group on

Piracy off the Coast of Somalia is working with the UN to bolster the Somali government’s capacity to
act, and to ensure prosecution and imprisonment of pirates as a deterrent. See “Contact Group on Piracy
off the Coast of Somalia,” http://www.state.gov/t/pm/ppa/piracy/contactgroup/index.htm.
Sovereignty at Sea 615

stresses the importance of forward deployment, war fighting, and maritime


dominance.82 This suggests that, however important protection of merchant
shipping and antipiracy functions have been previously, power projection
and war fighting are what the navy sees as its dominant or preferred mission.
Indeed, naval publications focused on implementing the Cooperative Strat-
egy for 21st Century Sea Power state that “being able to defend the Nation
and project combat power in war is our reason for being.”83
Since 11 September 2001, concern about terrorism also has significantly
affected U.S. national security strategy and priorities and the dominant focus
in recent years has been on supporting the U.S. military activities in Iraq and
Afghanistan.84 Emerging as it did when the navy was engaged in supporting
these wars, piracy off the coast of Somalia appears to have been seen as
a distraction. Former Joint Chief of Staff Chairman Admiral Michael Mullen
noted, for example, that the U.S. Navy had other, more critical priorities than
dealing with the problem of piracy, given that it was at the time supporting
ongoing military activities in both Iraq and Afghanistan.85 That antipiracy
activities were not the navy’s preferred mission was further reflected in the
2008 statement attributed to an officer in the Combined Task Force (CTF) 151
in the Gulf of Aden that “it is not the job of navy forces to protect merchant
ships and their crews.”86
Third, changes in global commerce have affected how states perceive
the threat piracy poses, and this appears to reinforce the view that protecting
merchant vessels from pirates is not considered a military priority by states
like the United States. The shift to open shipping registries has weakened
the sovereign link between the state and merchant shipping. The bulk of the
ships attacked by pirates are flagged in open registries. Between 2009 and
2013, 305 Panamanian-flagged ships were attacked globally, along with 240
Liberian ships, and 162 Marshall Islands-flagged ships. The crews of these
ships are mostly sailors from the developing world.87 Very few of the ships
being hijacked are U.S.-flagged ships, and few are managed or controlled by
U.S. companies. Notwithstanding the high profile attack on the U.S.-flagged

82 A Cooperative Strategy for 21st Century Seapower (Washington, DC: Department of the Navy,
2007).
83 Naval Doctrine Publication 1: Naval Warfare (Washington, DC: Department of the Navy, 2010),
iv.
84 The navy is also concerned about China’s growing naval capabilities. Geoffrey Till, Asia’s Naval

Expansion: An Arms Race in the Making? (London: International Institute for Strategic Studies, 2012).
85 Warner, “Pieces of Eight,” 74.
86 Baltic and International Maritime Council, “Pirates in Somali Threaten Lives of Seafarers

and the Security of World Trade,” 30 September 2008, https://www.intertanko.com/News-Desk/Press-


Releases/Year-2008/PIRATES-IN-SOMALIA-THREATEN-LIVES-OF-SEAFARERS-AND-THE-SECURITY-OF-
WORLD-TRADE/.
87 Industry figures have charged that this led to greater tolerance for hijacking among the advanced

Western states. “ICS and ISF Shipowner Associations Meet in Singapore,” International Chamber of Ship-
ping, January 2010.
616 R. de Nevers

Maersk Alabama in 2009, only 17 U.S.-flagged ships were attacked by pirates


globally between 2009 and 2013. This reflects both the small size of the U.S.
merchant fleet, which consists of 179 deep sea ships, and the limited number
of U.S.-flagged ships sailing in this region.88 The only U.S.-flagged merchant
vessels sailing in the high-risk zone near Somalia are carrying foreign aid such
as food, or military logistics, and few ships are involved in these activities.
The rapid and forceful U.S. naval response to hijackings of U.S.-flagged
vessels in the region, such as the Maersk Alabama in 2009 and the yacht
Quest in 2011, also underscores the fact that the ship’s flag matters to the
way states respond.89 Indeed, some states have sent naval ships to the Indian
Ocean to protect ships sailing under their flags, such as China, Russia, and
India.
These factors—the unique nature of Somali piracy, the evolution of mar-
itime strategy, and changes in global maritime commerce and the diminution
of the U.S. merchant fleet—help explain why piracy in the Gulf of Aden and
the Indian Ocean appears to be viewed by most major maritime states as
a threat to commerce rather than to the state. The exception to this occurs
when piracy is believed to be linked to terrorism, and thus poses a potential
national security threat to the United States. The U.S. sought to establish
joint antipiracy patrols in the Straits of Malacca in the mid-2000s, for exam-
ple, when concerns about both piracy and maritime terror in this narrow
shipping channel were high.90

UPWARD DELEGATION
Piracy, then, appears to be perceived as a threat to commerce, but shipown-
ers have demanded that states respond to this threat to merchant shipping.
Upward delegation to alliances is one state response. Resorting to multilat-
eral mechanisms is not unexpected in terms of state action. Realist theory
proposes that in the face of uncertainty or perceived threats, states can do

88 Half of these vessels transport goods between U.S. ports under requirements of the Jones Act.
The U.S. merchant fleet was one of the two largest in the world in 1860, due to excellent ship design
and building in the United States. But the Civil War damaged the U.S. merchant fleet, and by war’s end
the U.S. fleet had shrunk as ships fled to the British register (newly opened to U.S.-owned ships) or were
damaged in the war’s naval blockades. Although the U.S. government subsidized extensive ship building
during World War I, the costs of U.S. registry and the emergence of the Panamanian register depleted
the U.S. flag. The damage inflicted to global shipping by World War II, along with more U.S. building,
left the United States with the largest merchant fleet at the end of the war, but it steadily declined from
the 1950s on. See: Gold, Maritime Transport; Bauer, A Maritime History; George W. Baer, One Hundred
Years of Sea Power: The U.S. Navy, 1890-1990 (Stanford, CA: Stanford University Press, 1993).
89 On the U.S. response to attacks on U.S.-flagged ships, see Terry McKnight and Michael Hirsh,

Pirate Alley: Commanding Task Force 151 Off Somalia (Annapolis, MD: Naval Institute Press, 2012);
Adam Nagourney and Jeffrey Gettleman, “Pirates Brutally End Yachting Dream, New York Times, 22
February 2011.
90 Catherine Zara Raymond and Arthur Morriën, “Security in the Maritime Domain and Its Evolution

since 9/11,” in Lloyd’s MIU Handbook of Maritime Security, 3–11.


Sovereignty at Sea 617

two things: they can rely on self-help and bolster their own military forces, or
they can create or join alliances.91 Liberal institutionalists further propose that
cooperation allows states to enhance their security by providing information
that reduces uncertainty about other states’ intentions.92 What is striking in
states’ response to piracy is that multilateral mechanisms are being adopted
and implemented by maritime powers largely to protect ships flagged to
other states.93
The precedent for multilateral maritime security measures to protect
commercial shipping derives from NATO policies during the Cold War and
the Tanker War of 1980–1988. The expectation that any East-West conflict
would include attacks on merchant shipping led NATO navies to develop a
collective mechanism, Naval Control of Shipping (NCS), for protecting allied
merchant ships. The Iran-Iraq Tanker War in the Persian Gulf reinforced
concern about protection of merchant shipping at a time when increasing
numbers of ships were shifting to open registries, but the right to defend
neutral ships sailing under foreign flags was disputed.94 The Naval Cooper-
ation and Guidance for Shipping (NCAGS), the shipping doctrine now used
by all major navies, evolved after the Tanker War as the major Western
navies sought to develop guidelines for protecting the globalized shipping
industry.95 NCAGS involves information sharing to improve the security of
international shipping, but legal questions remain regarding naval protection
of foreign-flagged ships.
The Tanker War demonstrates that reliance on multilateral coalitions to
defend foreign merchant ships was accepted practice during conflicts, but
this example does not correspond to the categorization of threats to com-
merce examined here for two reasons. First, the naval activities took place
during the Iran-Iraq War. The naval goal was twofold: to defend merchant
shipping from belligerent attacks in an armed conflict and to ensure the
freedom of SLOCs, a core naval task. Second, these measures were driven
by geopolitical factors. U.S. reflagging of neutral Kuwaiti merchant ships was
done not only for their protection, but also to give the United States a pretext
for involvement in the conflict against Iran if the vessels were attacked. At
the same time, the U.S.SR chartered Soviet-flagged tankers to Kuwait during

91 Kenneth N. Waltz, Theory of International Politics (Reading: Addison-Wesley, 1979), 123–28,


166–70.
92 Robert O. Keohane and Lisa L. Martin, “The Promise of Institutionalist Theory,” International

Security 20, no. 1 (Summer 1995): 43.


93 Under international law naval vessels from any country can come to the aid of vessels under

attack, since piracy is an internationally recognized criminal act. Stuart Kaye, “Interdiction and Boarding
of Vessels at Sea: New Developments and Problems,” in Lloyd’s MIU Handbook of Maritime Security, 206;
Beckman, “The 1988 SUA Convention,” 188.
94 Blair Ussher, “Globalization, Neutrality and the Protection of Shipping,” Goorangai 3, no. 2 (March

2008).
95 “Naval Cooperation and Guidance for Shipping (NCAGS),” Rhumb Lines, 19 May 2008, http:

//www.navy.mil/navco/speakers/currents/NCAGS%2019%20May%2008.pdf.
618 R. de Nevers

the Tanker War, which illustrates the ongoing superpower competition for
regional influence.96
That most states cannot exercise positive sovereignty by protecting ships
sailing under their flag is simply taken for granted today. Due to this, Somali
piracy has led to the development of a cooperative approach to protecting
commercial shipping throughout the region, with international endorsement.
Multilateral responses have developed at several levels. Several UNSC res-
olutions passed in 2008 and 2009 encouraged those states that were able
to do so to establish mechanisms for international cooperation to respond
to piracy in the region. In response, several multilateral naval operations
were developed, initially in the Gulf of Aden and later in the Indian Ocean
as well. These include the Combined Maritime Forces (CMF), a coalition
of over twenty countries that was initially established in February 2002 to
combat criminal and terrorist activities at sea. The United States and other
navies have patrolled the Internationally Recognized Transit Corridor (IRTC)
and the Maritime Security Patrol Area, a zone within the Gulf of Aden, since
2008 as part of CTF 151, an element of the CMF.97 NATO and the European
Union (EU) also deployed naval task forces to the region. NATO’s Operation
Ocean Shield began in August 2009; it succeeded Operation Allied Provider,
established in 2008, under which NATO ships escorted World Food Program
(WFP) ships to Somalia at the request of UN Secretary General Ban Ki-
Moon.98 The EU’s Operation Atalanta also began with the goal of escorting
WFP shipments in 2008, but later expanded to a general antipiracy mis-
sion.99 Around twenty member states have participated in NATO’s mission,
and nineteen EU members, as well as Norway and Croatia, have participated
in the EU mission. At least seven other states—Russia, India, China, Indone-
sia, Thailand, Singapore, and Japan—have ships operating in the Gulf in
response to the UN appeal to combat piracy.100 The various coalition forces
now organize convoys of commercial ships travelling through the Gulf of
Aden. This is the first use of convoys to protect commercial shipping since
the Tanker War, and the first not associated with an armed conflict.101

96 Christine Gray, “The British Position in Regard to the Gulf Conflict,” International and Comparative

Law Quarterly 37, no. 2 (April 1988): 424; George K. Walker, The Tanker War, 1980–1988: Law and
Policy (Newport, RI: Naval War College, 2000), 60.
97 Warner, “Pieces of Eight,” 72.
98 “Counter Piracy Operations,” NATO, 2 April 2009, http://www.nato.int/cps/en/natohq/topics_

48815.htm.
99 Paul Ames, “Theatres of Operation: EU Playing Leading Role in Battle Against Somali Pirates,” Eu-

ropolitcs, 18 November 2009, http://www.secdef.eu/sites/secdef.eu/files/docs/eure3862-special-defence.


pdf.
100 Most of these cooperate informally with the coalitions. As noted previously, a few, such as

China, initially sought to protect only their flagged ships. “Japan’s gulf of Aden Mission Extended,” Mar-
itime News, 23 June 2009, https://www.maritimeupdates.com/?option=com_content&view=article&id=
466%3Ajapans-gulf-of-aden-mission-extended&Itemid=1&fontstyle=f-smaller; Yung, et al., China’s Out
of Area Naval Operations.
101 Author’s correspondence with U.S. Coast Guard official, 7 March 2011.
Sovereignty at Sea 619

The antipiracy alliances illustrate state willingness to delegate protec-


tion functions to coalitions. The domain in which they can operate is shaped
by Somalia’s inability to govern its territory, which led the UNSC to autho-
rize pursuit of pirates into Somali waters if need be. Under UNCLOS, state
sovereignty extends to its territorial sea, defined as twelve nautical miles from
the coastline.102 Coalition forces avoid Yemeni waters because Yemen’s gov-
ernment has not granted the right to pursue pirates into its coastal waters.103
But the United States, France, and the European Union have each signed
bilateral agreements with Seychelles that allow pursuit of suspected pirates
into Seychellian waters.
Combating piracy in the Malacca Straits has been more constrained by
territorial sovereignty. An effective response in this narrow channel requires
cooperation among the littoral states: Indonesia, Malaysia, and Singapore.
Some multilateral agreements have been reached, such as the Trilateral Co-
ordinated Patrol (MALSINDO) in June 2004, and a program of joint air patrols
in 2005. But none of the three states were willing to grant its neighbors the
right to pursue suspected pirates into its own territorial waters.104
Nor have the littoral states been willing to accept an antipiracy role
for so-called user states, whose ships or goods regularly traverse the Straits.
The United States sought to introduce a Regional Maritime Security Initia-
tive (RMSI) in 2004, for example, to address piracy and other problems in
the region by improving regional intelligence sharing and allowing the de-
ployment of U.S. Marines and Special Forces to the region to help interdict
pirates or terrorists. The prospect of U.S. troop deployments raised red flags
for both Malaysia and Indonesia and they insisted that security in the Straits
was the responsibility of the coastal states.105 Thus, in the Straits, territorial
sovereignty remains paramount and the negative protection against interfer-
ence by other states remains strong.

102 UNCLOS, Part II, Section 1, 1982, http://www.admiraltylawguide.com/conven/unclospart2.html.


103 That the European Union can reach such an agreement indicates its increasingly state-
like capacities. Kraska, “Grasping the Influence of Law,” 129; “Seychelles and the USA sign Piracy
Agreement,” African Press Organization, 14 July 2010, http://appablog.wordpress.com/2010/07/14/
seychelles-and-the-usa-sign-piracy-agreement/; “Fighting Piracy: Seychelles and EU Sign SOFA,” British
High Commission Victoria, 10 November 2009, http://www.mfa.gov.sc/static.php?content_id=36&news_
id=469.
104 Raymond and Morriën, “Security in the Maritime Domain,” 8; Catherine Zara Raymond, “Piracy

and Armed Robbery in the Malacca Strait: A Problem Solved?” Naval War College Review 62, no. 3 (Summer
2009): 31–42. Raymond points out that the incidence of piracy in the Straits has dropped since 2004. This
is partly due to the 2005 tsunami, which caused both loss of life in pirate regions and a peace agreement
in Aceh that led to reductions in armaments among soldiers and rebels, who were each believed to
engage in piracy. It may also reflect a deterrent effect from the agreements discussed here, as well as
information-sharing measures.
105 MALSINDO was in part a way to deflect pressure for the RMSI. William C. Banks, Renée de

Nevers, and Mitchel Wallerstein, Combating Terrorism: Strategies and Approaches (Washington, DC: CQ
Press, 2008), 266–67.
620 R. de Nevers

U.S. involvement in antipiracy coalition activities near Somalia reflects


the blurring of lines regarding ownership, corporate interests, and a na-
tional connection at sea. Commercial shipping through the Gulf of Aden
is largely intended for European markets, not the U.S. market; very few of
the ships traversing these seas are U.S.-flagged or managed or controlled by
U.S. companies. U.S. national interests, then, would not seem to be directly
threatened.106
Nonetheless, the United States is an active player in NATO’s antipiracy
activities. U.S. involvement and leadership are likely explained by global
power dynamics and the U.S. desire to preserve its global political and
maritime dominance.107 Thus, the United States took the lead in establishing
several of the current multilateral activities, such as the CTF 151, and it was
instrumental in the formation of the UNSC-approved International Contact
Group on Piracy off the Coast of Somalia in January 2009. By 2013, the
Contact Group included roughly eighty states, international organizations,
and industry groups.108

DIVESTMENT OUTWARD
Maritime powers also have begun to outsource vessel protection to private
security firms. Pirate attacks increased in the late 2000s, and attacks attributed
to Somali pirates reached a high of 236 (of 439 attacks globally) in 2011. Both
the number and success rate of attempted hijackings has dropped, however,
with 264 attacks worldwide in 2013 including fifteen in the high risk zone
near Somalia, of which two were successful.109 This is partially due to in-
creased naval patrols, and to the development and adoption of best man-
agement practices regarding ship security in regions considered to be high
risk.110 It may also be due to the use of armed security guards on merchant
ships.
State practice has long discouraged armed guards and weapons on
merchant ships. This likely mirrors strict national weapons laws in many
countries, and many port states have prohibited merchant vessels from en-
tering ports with weapons on board. This illustrates the layered hierarchy

106 Stephen M. Carmel, “Pirates vs. Congress: How Pirates are a better Bargain,” (comments to the

Commander Second Fleet Intelligence Symposium, 3 August 2011), http://www.informationdissemination.


net/2011/08/pirates-vs-congress-how-pirates-are.html.
107 National Security Council, Countering Piracy off the Horn of Africa.
108 “Activities of the UN Office of Drugs and Crime to Address Emerging forms of Crime,” UN Office

of Drugs and Crime, 4 August 2010, http://www.unodc.org/documents/treaties/organized_crime/COP5/


CTOC_COP_2010_3/CTOC_COP_2010_3_E.pdf; Donna Hopkins, “Counter Piracy Update,” 3 December
2010, http://fpc.state.gov/152316.htm.
109 Piracy & Armed Robbery Against Ships, 5–8.
110 The bulk of ships recently captured by pirates had not adopted best practices. Andrew J. Shapiro,

“U.S. Approaches to Counter Piracy,” 30 March 2011, http://www.state.gov/t/pm/rls/rm/159419.htm.


Sovereignty at Sea 621

of sovereignty, with port state control taking precedence over flag-state reg-
ulations.111 The UN’s International Maritime Organization (IMO) also long
rejected weapons on merchant ships for five reasons: 1) Merchant crews
(seafarers) are civilians who are unlikely to have firearms training; 2) the risk
of accidents on board ships increases with firearms on board; 3) firearms may
lead to an escalation in violence in the event of an attack; 4) the weapons
themselves may become a target for attackers, and 5) depending on the
ship’s cargo, firearms on board could simply be dangerous.112
State and industry attitudes regarding the private provision of security
have evolved over the last decade. To begin with, some shipping corpora-
tions simply moved to employ armed guards without publicizing this step.113
Maersk, for example, began hiring armed guards in 2009. After resisting the
arming of ships for several years, several shipping industry associations and
insurance associations acknowledged over the course of 2011 that some
shipowners were likely to resort to private armed guards. In May of that
year, several associations suggested that the IMO establish guidelines on
the use of armed guards in the High Risk Area (HRA) in the Gulf of Aden,
which it did shortly thereafter.114 The IMO recommendations stressed the
need for flag-states to have a clear policy on the use of armed guards and
that decisions regarding force at sea remain with the flag-state. The maritime
insurance industry also started to accept the use of armed guards on ships
in 2011, although the International Union of Maritime Insurance (IUMI) has
stressed that this must comply with flag-state legislation. The resort to armed
guards has been accompanied by increasing claims that no armed ships have
been taken captive by pirates.115
The United States was one of the first states to encourage the hiring of
private armed guards for ships traveling in high risk regions and it was in-
strumental in advocating broader reliance on private armed guards. Notably,
this decision was prompted by top Department of Defense officials, who
argued that private armed guards would be the most cost-effective response

111 On different forms of maritime sovereignty, see Craig H. Allen, “Revisiting the Thames Formula:
The Evolving Role of the International Maritime Organization and its Member States in Implementing the
1982 Law of the Sea Convention,” San Diego International Law Journal 10, no. 2 (Spring 2009).
112 “IMO: ‘Strongly Discourage’ Arming of Seafarers to Fight Pirates,” Professional Mariner,

18 June 2009, http://www.professionalmariner.com/June-July-2009/IMO-Strongly-discourage-arming-of-


seafarers-to-fight-pirates/.
113 “Prepare to Repel Boarders,” Economist, 13 October 2011, http://www.economist.com/blogs/

schumpeter/2011/10/piracy.
114 “Interim Guidance on Use of Privately Contracted Armed Security Personnel on Board Ships

Agreed by IMO Maritime Safety Meeting,” International Maritime Organization News Briefing 27, 20 May
2011, http://www.imo.org/MediaCentre/PressBriefings/Pages/27-MSC-89-piracy.aspx.
115 Gus Trompiz, “Marine Insurers Backing Armed Guards as Piracy Grows,” Reuters, 20 September

2011; John Ward, “Somalian Pirates who are Being Stopped in their Tracks by British Mercenaries,” Daily
Star, 16 October 2011.
622 R. de Nevers

to the piracy problem.116 Because no law forbidding arms on U.S.-flagged


vessels existed, no change in law was necessary, only a change in policy. In
early 2009 this shift occurred, allowing private armed guards on U.S. ships,
and Coast Guard directives now “encourage U.S. vessels to consider using
private security.”117 The Coast Guard requires a Vessel Security Plan for ships
transiting the HRA near Somalia, although it is unclear whether armed guards
are required, rather than encouraged.118
By 2011, the U.S. government had begun advocating that other states
adopt a similar policy by arguing “that permitting armed personnel aboard
ships is essential.” This was characterized as “lead(ing) by example.”119
Donna Hopkins, the Coordinator for Counter Piracy and Maritime Security at
the U.S. State Department, noted that “through an interagency process, we
came . . . to a White House-level agreement that the U.S. would advocate for
privately contracted armed security on board all commercial vessels. Parts of
the industry weren’t happy about that, Coast Guard was ambivalent, but we
all agreed that would be the policy.”120
More broadly, the state response to the use of private armed guards at
sea has been mixed. By the fall of 2011, several states, including the UK,
moved toward licensing ships sailing under their flags to use armed guards
in high risk areas and more are considering such a step.121 Other states,
including Germany, Spain, and the Scandinavian states, have developed legal
frameworks governing reliance on maritime private security companies.122
Several of the major open registry states, including Liberia and the Marshall
Islands, have adopted policies allowing private armed guards on their flagged
ships at the discretion of the shipowners and “in cooperation with the vessel’s
insurance underwriters, charterers and legal counsel.”123

116Michèle Flournoy and James A. Winnefeld, “Statement for the Record before the Senate Armed Ser-
vices Committee,” May 5, 2009, 7, http://www.marad.dot.gov/documents/Flournoy-Winnefeld_05-05-09.
pdf.
117 “Memorandum on ‘Hearing on “Assuring the Freedom of Americans on the High Seas: The

United States’ Response to Piracy,””’ U.S. House of Representatives Committee on Transportation and
Infrastructure, 11 March 2011, 10.
118 “Maritime Security Directive 104-6 (rev. 4): Guidelines for U.S. Vessels Operating in High Risk

Waters,” Federal Register, 3 December 2010. See also “Memorandum on ‘Hearing”’; “Report on Restrictions
on United States Flagged Commercial Vessel Security,” National Defense Authorization Act 2010, HR 2647,
111th Cong., 1st sess., Section 3506.
119 Andrew J. Shapiro, “Remarks to the Atlantic Council,” 26 October 2012, http://www.state.gov/t/

pm/rls/rm/199927.htm.
120 McKnight and Hirsh, Pirate Alley, 73.
121 “Somali Pirates Widen Their Net,” IISS Strategic Comments 17, no. 40 (November 2011); “Armed

Guards to Protect British Ships From Pirates,” Telegraph, 30 October 2011.


122 Annina Bürgin and Patricia Schneider, “Regulations of Maritime Private Security Companies in

Germany and Spain: A Comparative Study” (paper presented at the International Studies Association
Conference, Toronto, Canada, 26–29 March 2014); Joakim Berndtsson and Åse Gilje Østensen, “A Scandi-
navian Approach to Private Maritime Security?” (paper presented at the International Studies Association
Conference, Toronto, Canada, 26–29 March 2014).
123 “Piracy, Armed Attacks, Hijacking or Terrorism: Reporting Incidents, Ship Security Plans, and

Best Management Practices,” Republic of the Marshall Islands Marine Notice #2-011-31, 14. Liberia has
Sovereignty at Sea 623

Some states have chosen to rely on soldiers rather than contractors


to protect merchant shipping. Italy, for example, agreed to make military
troops available as vessel protection details (VPDs) to private ships passing
through the Gulf of Aden, and signed a Memorandum of Understanding
with the Italian Ship-owners Association regarding reliance on either private
armed forces or military personnel in October 2011.124 The Netherlands and
Thailand also intend to rely on military security teams.125 This choice appears
to reflect state preferences regarding outsourcing state security functions.
Resort to private armed guards at sea follows the explosion of the private
security industry that accompanied U.S. interventions in Afghanistan and Iraq
in the early 2000s. Private military forces have a long history in the form of
mercenary armies, which dominated European warfare before the rise of the
nation-state and citizen soldiers.126 In the maritime domain, states relied on
privateers both before and after the development of navies; privateering was
formally outlawed in 1856.127 Conscript armies replaced mercenaries in the
nineteenth century, but contractors filled military support functions such as
logistics and weapons design throughout the 20th century. Private military
companies emerged in the 1990s to sell military services ranging from training
to combat involvement.128 The increased state reliance on private military and
security companies that emerged in Afghanistan and especially Iraq enabled
the United States and its coalition partners to sustain these conflicts without
increasing the size of the uniformed military. But this reliance also raised
serious questions about accountability and international law, which are now
paralleled in the maritime domain.129
The shift to private security at sea corresponds to broader patterns of
privatization of government functions, particularly in the security realm. The
fact that several major maritime powers, including the United States and the

extensive guidelines for the use of armed guards and states on its website that its guidelines provided the
basis for the IMO’s interim guidelines on armed guards. “Interim IMO Guidance on the Use of Privately
Contracted Armed Security Personnel on Board Ships in the High Risk Area,” Maritime Security Advisory,
Bureau of Maritime Affairs, http://www.liscr.com/liscr/Portals/0/SecurityAdvisory_03-2011.pdf.
124 “National Regulations on the Use of Armed Guards,” https://extranet.skuld.com/Insight/Piracy/

Armed-Guards/National-regulations-on-the-use-of-armed-guards/.
125 William Marmon, “Merchant Ships Starting to Carry Armed Guards Against Somali Pirates,”

EI Blog, 22 November 2011, http://www.europeaninstitute.org/index.php/ei-blog/137-november-2011/


1471-merchant-ships-start-to-carry-armed-guards-against-somali-pirates-1122.
126 Michael Howard, War in European History (Oxford: Oxford University Press, 1976); Thomson,

Mercenaries, Pirates, and Sovereigns.


127 Ibid., 70. The United States only accepted this ban in 1898.
128 P. W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca, NY: Cornell

University Press, 2003).


129 For some discussions of private security companies and their impact on the state and the inter-

national system, see: Deborah D. Avant, The Market for Force: The Consequences of Privatizing Security
(New York: Cambridge University Press, 2005); Simon Chesterman and Chia Lehnardt, ed. From Mer-
cenaries to Market: The Rise and Regulation of Private Military Companies (Oxford: Oxford University
Press 2007), Elke Krahmann, States, Citizens, and the Privatization of Security (New York: Cambridge
University Press, 2010).
624 R. de Nevers

UK, have accepted this move suggests that the practice is likely to spread.
Interestingly, shipowner associations and corporations have expressed con-
cern about this move, and they have stated their strong preference for state
responses to piracy rather than private responses.130 To be sure, this resis-
tance is driven in part by a desire to avoid the costs associated with private
security.
The delegation of security functions to private actors creates a poten-
tial new clash of sovereign authority and private forces. Notably, port states
must determine whether they will allow entry to armed merchant ships,
which previously were not allowed in most ports due to security concerns.
Terra firma sovereignty takes precedence over flag-state protection of ships,
and port states have final say over ships seeking entry.131 Given the history of
mercenarism and attempted coups, notably and recently in Africa, along with
current concerns about terrorism, the prospect of private individuals carry-
ing weaponry is clearly a sensitive issue. Indeed, there have been several
instances of armed individuals being detained as they travelled to maritime
security jobs because they violated national firearms laws of transit states.132
The IMO has asked states near Somalia to clarify their policies regarding port
controls on weapons, but the IMO remains neutral on the question of port
states allowing armed guards.133 Some Indian Ocean states have begun to
adopt regulations to allow weapons in ports, but others have not.134 Some
maritime security companies have resorted to establishing floating armories
in international waters to bypass this problem by caching weapons outside
ports. The UK government recently approved the use of such armories to
ensure that British companies were not violating export control laws regard-
ing firearms, but concerns remain that the armories themselves may become
targets.135
Successful pirate attacks in the Indian Ocean and the Gulf of Aden
have dropped significantly in recent years. Both coalition activities and the
resort to private armed guards deserve some credit for this. It is worth

130 “Shipping Industry Changes Stance on Armed Guards,” 15 February 2011, http://www.

transportweekly.com/pages/en/news/articles/79221/; “ICS Chairman Calls for More Navy Forces in


Indian Ocean,” 3 October 2011, http://shipmanagementinternational.com/ics-chairman-calls-for-more-
navy-forces-in-indian-ocean/.
131 On port state authority, see Elizabeth R. DeSombre, Flagging Standards: Globalization and

Environmental, Safety, and Labor Regulations at Sea (Cambridge, MA: MIT Press, 2006).
132 “Somali Pirates Widen their Net.”
133 “Interim Recommendations for Port and Coastal States Regarding the Use of Privately Contracted

Armed Security Personnel on Board Ships in the High Risk Area,” International Maritime Organization
MSC.1/Circ. 1408, 16 September 2011.
134 “Somali Pirates Widen their Net;” “Prepare to Repel Boarders.”
135 Oscar Rickett, “Piracy Fears over Ships Laden with Weapons in International Waters,” Guardian,

10 January 2013; Liz McMahon, “UK Gives Go Ahead for Floating Armouries,” Lloyd’s List, 8 August
2013, http://www.lloydslist.com/ll/sector/regulation/article427433.ece; Jamie Campbell and Harry Davies,
“Floating Arsenals Designed to Protect Shipping from Pirates Deemed Unsafe,” Independent, 21 December
2014.
Sovereignty at Sea 625

noting that these are two elements of international efforts against piracy,
and other critical pieces, including the prosecution of over one thousand
pirates in recent years and the adoption by more ships of best management
practices to secure ships against attack, are equally important.136 Moreover,
however devastating piracy is for hijacked crews, more than 99 percent of
ships transiting this high risk region are not attacked at all.137

THE ENDURANCE AND EVOLUTION OF SOVEREIGNTY AT SEA

Despite changes in sovereign practice during the 20th century, sea law re-
mains centered on the sovereignty norm. States generally accept that flag-
state jurisdiction protects international shipping from interference by other
states. As with terra firma sovereignty, weak states guard the sovereign pre-
rogatives that derive from negative sovereignty, notably noninterference, and
strong states largely respect these prerogatives. Open shipping registries are
possible due to negative sovereignty, as states can determine their ship reg-
istration requirements without interference or rejection by other states.
Yet maritime threats remain and pose a range of security challenges.
Maritime powers have responded differently to threats they perceive to
be directed at states as opposed to commerce. Where powerful states, the
United States in particular, perceive potential national security threats, they
have sought to find means to work around the obstacle posed by flag-state
sovereignty to ensure access to other states’ ships. This has been done by
developing bilateral agreements to access ships and by promoting multilat-
eral treaties that revise understandings of sovereign protections. The United
States has deliberately sought change in interdiction principles that affect
the sovereign right to noninterference in internal affairs. This has met with
limited success, indicating that many states remain firmly convinced of the
legitimacy of long-standing interpretations of sovereignty and the privileges
and protections it ensures to all states—and their ships.
Global commerce can pose potential threats to states by masking il-
licit trade that could affect national security—but commerce itself can also
be threatened. States have responded to piracy, which threatens maritime
commerce by targeting ships, by establishing coalitions to patrol the region
where pirates are active and by outsourcing ship protection to private actors.
This reflects shifting naval priorities and the ubiquity of open registries. The
reluctance to treat piracy as an urgent security problem represents a change
from earlier state practice.

136“No Somali Hijacking in Nearly a Year, Says UN,” Guardian, 3 May 2013.
137Based on discussion with Maritime Security (MARSEC) official, London, 11 January 2013. Based
on the number of ships transiting the Suez Canal, perhaps 0.01 percent were attacked by Somali pirates
in 2011. “Detailed Yearly Statistical Report (2011),” Suez Canal Traffic Statistics, http://www.suezcanal.
gov.eg/TRstat.aspx?reportId=3.
626 R. de Nevers

U.S. efforts with regard to interdiction fit a broader historical pattern.


Great powers have long revised interpretations of sovereignty to further
their security goals and occasionally to support other normative goals, such
as ending the slave trade or prohibition. The mixed success of recent efforts
illustrates the broad resonance and durability of negative sovereignty. The
protections against interference associated with sovereignty remain important
to many states in a world of unequal powers. Yet, the United States has
gained the access it desires by persuading—or coercing—other states to
accept bilateral means.
The distinction between positive and negative sovereignty observed at
sea parallels a similar divergence on land that was consolidated after World
War II. On land, the powerful have generally both honored this distinction
and safeguarded it in the interest of maintaining peace and stability in the
international system. This has meant respect for territorial integrity of states
that are largely shells, rather than allowing their demise. Powerful states
have been expected to take responsibility for maintaining international peace
and stability, including defending weak states’ territorial integrity against
encroachment. Robert Jackson argues that this is based on a practical ethics,
whereby there are greater principled expectations of the strong than the
weak.138 This is a notable change, and one that is reflected at sea as well.
In the 19th century and earlier, great powers defended the rights of their
flagged ships against encroachment and enforced their rules on others too
weak to prevent this. Today, the general expectation is that major maritime
powers will provide the public good of freedom of navigation for all.
Outsourcing ship protection also has parallels on land, where private
security firms have been hired by both state and private actors, and the
United States has led in outsourcing both on land and at sea. State reliance
on private security has been intended to enhance state military capabilities,
and the United States views private contractors as an important national
security force multiplier. At sea, outsourcing has been adopted to hand off a
task that the military is currently less interested in undertaking: to address a
threat affecting commerce rather than the state’s security.
While it has raised concerns about the ceding of state authority over
the use of force, outsourcing does not necessarily represent a ceding of
sovereign authority. The key issue is state authorization of the use of force,
which can be delegated to nonstate actors.139 Nonetheless, outsourcing does
represent a decoupling of a protection function that was formerly central
to state perceptions of power. It is too soon to tell whether outsourcing
will become a regular practice or remain a temporary anomaly in response
to a localized problem. While private maritime security companies seek to
expand their activities globally, the IMO’s guidelines regarding use of private

138 Jackson, Global Covenant, 18–21.


139 I am grateful to William C. Banks for noting this point.
Sovereignty at Sea 627

armed guards are both temporally and physically limited to the specific
problem posed by pirates off the coast of Somalia. If states change their
legal guidelines regarding armed guards on merchant ships, however, it may
be hard to revert back to prior understandings of authorized force at sea.
Both the effort to change interdiction norms and outsourcing to private
armed guards can be seen as logical consequences of the earlier severing of
the ship-state link that developed with the spread of open shipping registries.
That the largest open registry states cannot protect their ships against threats
at sea is simply accepted. It also appears taken for granted by both states and
merchant shippers that those states capable of doing so have an obligation
to keep shipping channels safe for all. Certainly, many states perceive their
national interests as linked to protection of sea lanes. But the traditional con-
nection between naval power, commercial power, and the flag has eroded.
Trading states are increasingly dependent on shipping, as noted earlier—but
not on trade associated with the national flag. This is a big change from
the Mahanian notion of naval power defending the state’s commercial ships.
Moreover, the multilateral cooperation against piracy contrasts with the fric-
tions that have emerged recently among the major powers in the Asia-Pacific
region over the question of sovereign control over large swathes of the
ocean, as well as between littoral states over disputed maritime borders.140
These diverging trends could create tensions in the future.
Flags of convenience emerged within the framework of the liberal in-
ternational order. This framework has mitigated concern about the need for
strong sovereign links between ships and states to ensure the security of mar-
itime commerce. So long as this order endures, the mitigation of sovereign
rights and protections in the maritime domain may not pose problems for
states or shipowners engaged in global trade. At the same time, the differ-
ential response to pirate attacks against U.S.-flagged ships and other ships
suggests that the connection between ship and state still matters. Should the
rules of the international game change, sovereign links may matter more,
and both ships and states may find themselves scrambling to adjust to a
world in which security at sea requires a sovereign capable of providing it.

140 Kraska, Maritime Power and the Law of the Sea.


628 R. de Nevers

APPENDIX A
TABLE 1 States with Significant Naval Power

Principal
Defense Surface Ships Patrol and
Budget Aircraft (destroyers and Coastal Submarines
State141 (2010)142 Carriers frigates) Combatants (nonstrategic)

United States $692.8bn 11 103 28 57


China $76.4bn −143 78 211 68
UK $56.5bn 1 24 22 7
Japan $52.8bn 1 48 6 18
France $42.6bn 1 24 24 6
Russia $41.4bn 1 31 78 45
Germany $41.2bn − 20 10 4
India $38.4bn 1 22 49 16
Brazil $34.7bn 1 14 42 5
South Korea $25.4bn − 47 111 23144
Australia $24.5bn − 12 12 6
Italy $20.5bn 2 16 22 6
Canada $19.9bn − 15 73 4
Netherlands $11.2bn − 6 − 4
Spain $10.1bn 1 11 53 4

141 All estimates are from Military Balance 2011. It is difficult to rank or compare naval forces,

because states have developed very different naval capacities in both number and quality of ships. Some
states have concentrated on littoral defense forces, while others have built naval forces with global reach.
Moreover, some states with relatively weak naval forces have recently begun buying sophisticated naval
technology from downsizing states. This table orders states by size of defense budget, and lists the major
naval ships they maintain for various functions. Most observers rank the United States as the paramount
naval power, and the only state that currently has extensive global force projection capacity. A few other
states, such as the UK and France, have more limited but comprehensive global force projection capacity,
while others, such as Canada, the Netherlands, and Australia, have some elements of global capacity.
China’s naval capacity has been described as enabling adjacent force projection: its navy can operate
well offshore, but it cannot sustain naval operations far from China.
142 Saudi Arabia ranked fifth in global defense spending in 2010, but it does not have notable naval

capacity. Military Balance 2011, 469.


143 China began sea trials of its first aircraft carrier, a retrofitted Soviet carrier, in August 2010.
144 North Korea has twenty-two submarines and forty-eight coastal/inshore submarines. Military

Balance 2011, 40.


Sovereignty at Sea 629

TABLE 2 Ten Largest Ship-Owning States

Percentage of World Percentage of Fleet Sailing Under


State145 Total National Flag

Greece 15.20 28.40


Japan 13.90 8.00
China 11.80 35.00
Germany 7.79 13.00
Republic of 4.65 22.00
Korea
Singapore 3.98 51.00
United States 3.61 15.00
UK 3.12 21.00
Norway 2.85 5.00
Taiwan 2.74 7.00

TABLE 3 Three Largest Ship-Building States

State146 Percentage of Total Gross Tonnage

China 40.00
Republic of Korea 33.00
Japan 18.30

TABLE 4 Ten Largest Liner Companies and Their Home States

Share of World Total (in Twenty-foot


Company147 State/Territory Equivalent Units (TEUs))

Maersk Denmark 11.7


MSC Switzerland 10.1
CMA CGM Group France 6.3
Evergreen Line Taiwan 4.0
APL Singapore 3.5
COSCON Singapore 3.3
Hapag-Lloyd Germany 3.1
Group
CSCL China 3.1
Hanjin Republic of Korea 2.7
NYK Japan 2.4

145 All statistics for this table: Review of Maritime Transport 2013, 43.
146 All statistics for this table: Review of Maritime Transport 2013, 59. Because these three states are
so dominant in ship building, recent UNCTAD estimates lump all other states together.
147 All statistics for this table: Review of Maritime Transport 2010, 33.
630 R. de Nevers

TABLE 5 Ten Largest Flags of Registration

State148 Percentage of Worldwide Deadweight Tonnage

Panama 22.60
Liberia 11.14
Marshall Islands 6.10
China, Hong Kong149 5.84
Greece 5.30
Bahamas 5.02
Singapore 4.83
Malta 4.40
China 3.54
Cyprus 2.45

148 All statistics for this table: Review of Maritime Transport 2010, 43.
149 The Hong Kong Registry is distinct from the Chinese (PRC) registry.