Freedom of the Seas
by Professor Geoffrey Till
Whether we like it or not. we are part of a thoroughly globalised trading system that significantly determines much of our destiny. Capital and information are now transmitted around the world electronically, rather than by shipping as used to be the case until the latter stages of the industrial revolution.
Nonetheless, merchant shipping is still an essential enabler to that system partly because great bodies of water divide the world’s trailing blocks and partly because it is easier, safer and cheaper to send goods by sea than by any other means. Sea-based trade, in other words, underpins the world economy and will surely continue to do so. Measured in weight and volume. Wo of world trade still travels by water. Estimates vary, but global trade looks set to expand by several per cent per year for the foreseeable future. The problem is though, that sea transportation costs have been drastically reduced over the past decade or so. but at the price of a light •just-cnough-just-in-lime’ philosophy that makes it disproportionately vulnerable to local shocks.
Defending that trade, and regarding the sea as a great manoeuvre space for the peaceful transfer of capital, goods and people around the world on the one hand, and as a means of defending the system on the other is second nature to the world’s major navies. At the heart of these assumptions is the belief in free navigation. Thus Admiral Jacky Fisher at the beginning of the last century:
The Admiralty should never engage itself to lock tt/> o single vessel even ■ not even a torpedo-hoal or submarines- anywhere on tiny consideration whatever. The whole principle of Sea fighting is to he free to go anywhere with every d—d thine the Savy possesses The Admiralty should …reserve entire freedom of action.’
(Letter of 8 April 1910. Admiral of the Fleet Sir John Fisher. Records. Ilodder «.X: Sloughlon. London 19|4.Emphasis in original.)
The greater their freedom to regard the world ocean as an unimpeded manoeuvre space from which navies can project diplomatic and military power ashore, the traditional argument goes, the easier can they help defend the system. Restrict those rights, and you may reduce naval effectiveness, and increase the vulnerability of the system.
Nonetheless, this belief is under increasing threat threats – and perhaps should he. I he stimulus for this are the discussions currently going on between the RAN. the ESN. the RN and others about the right to slop and search ships on the high seas that might be purveying material related to weapons of mass destruction around the world ocean.
Why the freedom of the Seas?
As far as most people are concerned it all began with the Dutch jurist Hugo (irolius in his Man Liherum of 1609. Actually he was by no means the first to assume that the sea belonged to no one and that everyone had a right to sail about it unimpeded. Such beliefs can be traced back to the Roman Empire at the very least.
He argued that the sea was first a limitless resource and second an essential means of transportation for the purposes of the trade on which the world’s prosperity and peace depends. Accordingly the ability to use the high seas freely has for centuries been regarded as an essential right. People cannot live on the sea indefinitely: it is inherently different from the land. The concept of owning the sea was therefore a contradiction in terms.
But against that there was the equally brilliant English Jurist John Selden. His view was that bits of sea were worth owning and therefore were capable of being owned -perhaps beeause of the fish stocks that could be found there, or because they allowed the exertion of decisive power ashore or because control of the transportation routes that passed through them was commercially or strategically valuable.
These two largely complementary traditions have operated side-by-side. Indeed Selden pointed out that Cirotius sounded like him. later on. when he was trying to help his Dutch masters keep the English out of the lastIndies spice trade! These days the Selden tradition has resulted in expanded territorial seas, and the Exclusive Economic Zone: the tradition in the defence of free navigation through both of these and the continuing defence of freedom on the high seas outside them. Both these traditions seem likely to continue to coexist in the 21″ Century, but for a Variety Of reasons, the balance between them seems likely to shift.
There seem to he four reasons for this: diminishing resources, the death of distance, safety and preservation, and the common heritage of mankind.
Diminishing Resources
Medieval mariners used to talk of an ocean that was brilliantly clear and sparkling, cleaned by trillions of shellfish and teaming with fish. Early arrivals in the Western Atlantic had only to lower baskets into the sea and haul up all the fish they could eat. Cirolius’argument reflected the then fact that the resources of the sea (especially fish) were limitless and the consequent assumption that the sea could therefore be used by one country without reducing it-, value for anyone else.
Manifestly, centuries of over fishing mean that this is no longer true, The sea’s resources are limited. Your fish lake, reduces mine. Accordingly, the main plank of this part of Cirotius’ argument falls away. Of course this is not entirely new. Today’s bans on wall-of-death drift net fishing m the Pacific Ocean echo much earlier limits on activities such as sealing. But regulation of this sort will surely grow, simply because the resources themselves are both more important and under much great threat than they used to be.
The current controversies about the future of whaling again illustratethe fact that what countries can do. commercially on the open ocean is being increasingly regulated. By agreement, perhaps, but still regulated.
The Death of Distance
Technology effectively determined the extent of the sea areas that countries could justifiably regard as their own. Traditionally, this was the sea area that could be covered by shore based cannon. With a following wind this could be as much as three miles, and became the usual measure of the territorial sea.
However in more recent limes, the reach of shore-based technology has extended so much that to some extent at least, it covers the entire ocean. With satellites and patrolling I AVs. the ocean is under surveillance to an unprecedented degree. This does not mean that the ocean has ceased to be a place in which naval forces can hide but it does mean that its surface at least is much less o\’ an unknown desert than it used to be. Modern technology allows the countries that have the necessary technological and military capacity to extend their influence over the open ocean.
Not only can developed nations exert more influence over the open ocean than they used, but they will also need to more. They and their interests are less insulated and more threatened from the sea than they used to be. These sea-based threats range from illegalimmigrants, through international terrorism to the possibility of physical attack from the sea.
As a result, the high seas have shrunk not just in a literal way with the extension of the territorial sea. but metaphorically too. because the processes of globalisation mean that geographic distance matters so much less than it did. In the Tampa affair, for example. Australia found itselfdealing with migrants fleeing from a conflict in Afghanistan in which a terrorist group led by a Saudi national was attacked by an American-led international coalitioninvolving countries as far apart as Japan anil Denmark. The war against terror seems likely greatly to reinforce an existing trend towards limits on total freedom of navigation on the high seas.
Freedom of navigation, in short, depends on the suppression of other people’s freedom to misuse or interfere with it.This in turn requires maritime powers to accept limitations on their freedoms as well.Significantly it is the United States until recently the supreme exponent of the freedom of navigation, that is taking the lead in this. People are beginning to qualify freedom of navigation by stressing that it must be for legitimate purposes.
This is not. of course, completely new either. Because pirates have always been seen as the enemy of all mankind (kostls humanis generis) it has become widely accepted thai their suppression warrants interference with ships on the high seas (lying the llags of other states. But now such constraints apply mote widely.
Safety and Preservation
Reinforced by the 1998 Year of the Oceans. more and more concern about the environmental fragility of the open ocean, littoral seas and the coastline. The ocean is in trouble, and this will surely lead to increasing regulation on what people may or may not do at sea. More and more people are thinking that we, and their owners, ought to be able to keep closer track of merchant vessels, less they pollute, sink or be attacked by pirates. Perhaps they should be fitted with transponders continuously providing details of their position, course, cargo, destination and general stale and that they be treated like airliners, being handed from one sea traffic controller to another.
All this seems likely to affect warships too. especially in restricted areas such as the Black Sea and the Mediterranean. It also means more pressure on navies and coastguard forces tinning into the business of guarding the ocean.
dominion or ownership, We cannot subsist upon it…nor can we exclude neutrals from ft. Working out how they should respond to all these probable infractions on traditional thinking about the freedom of navigation the freedom of navigation is likely lo be a major feature in strategic thinking for the navies of the 21′ Century.
Of course on the one hand it might be argued that these developments arc either not likely to take place or to have the restricting effects on their capacity lo use the sea as a means of projecting military and diplomatic power ashore that great maritime powers like the United States so value. The compromises arrived at in the long development of the Law of the Sea amply illustrate the abilityof the great maritime powers to get their conceptions accepted. But what may prove crucially different about the present situation is that it is within those same maritime powers that so many pressures for a re-think are actually coming, whether for resource, commercial, environmental or strategic reasons. If he were aware of this. Admiral Jacky fisher would certainly turn in his grave.
The Common Heritage of Mankind
The common heritage of mankind signifies a fourth and potentially quite profound shift in altitudes to the sea – a fundamental re-interpretation of what the ocean as a global commons actually means. This increasingly reflects a sense that the freedom of the seas does not merely connote their being outside jurisdiction and so free for everyone to use. Instead, the ocean is regarded as a common domain belonging to everyone, including future generations as yet unborn. Instead of being the object of a free-for-all where those who can, have the licence to do what they want, the sea is regarded as a huge area of shared sovereignty and agreed regulation on current and future use. in the common interest of all mankind, present and future. In short, the high seas are increasingly seen as belonging to everyone, rather than to no one.
Future Implications?
All this really conflicts withtraditional notions about what is distinctive about naval operations. According to Corbett, after all the distinctiveness of naval strategy, and what set it apart from the strategy of land warfare was that the sea cannot he the subject of political
* Professor Geoffrey Till isthe Dean of Academic Studies at the .hum Services Command and Staff College and is Head of the Defence Studies Department, which is a part of the War Stmlics Group of King’s College London. In addition to many articles and chapters on various aspects of defence, he is the author of a number of hooks including Air Power and the Royal Navy (1979); Maritime Strategy and the Nuclear Age (1984); Modern Sea Power (19X7): and, with Bryan Raitft. The Sea in Soviet Strategy (19X9). More recently he has edited Coastal Forces tlW4). Sea Power: Theory and Practice (1994) and Seapower at the Millennium (2001). His latest book is The Challenges of High Command: the British Experience with Gary Sheffield, and he has just completed a major study Sea/tower: A Guide fiir the 21″ Centuty for Frank Cass, to be published later in 2003.
