From mare liberum to mare legitimum

Human rights at sea

Steven Haines considers the drawbacks of the freedom of lawless seas

Over 400 years ago, the Dutch lawyer Hugo Grotius maintained that the seas and oceans were not capable of expropriation, could not be placed under the effective control of any sovereign, and should be free for all to use and take advantage of. The ’freedom of the seas’ – or mare liberum – became the enduring principle shaping the developing law of the sea over the next four centuries.

But since the middle of the 20th century things have changed, and in significant ways. The oceans and seas, in all their many dimensions, have been transformed. The change has been profound and irreversible, and far greater over the past seven decades than it was during the 350 years after Grotius wrote about mare liberum. Indeed, so fundamental is the change that it may no longer be reasonable to sustain the case for free seas. A controversial claim, if ever there was one! But we make no apologies; there is a troubling logic behind it.

Hugo Grotius – a statue in Delft, the Netherlands. Photo: Waterwin CC-BY-SA2.0 Gen

Until the middle of the 20th century, the oceans were regarded as sparsely populated by humans. Today this is not the case. In 1945 the world’s population was 2.5 billion; today it is almost 8 billion. Its maritime population has similarly increased. As you are reading this, there are estimated to be over 30 million men, women and children at sea.

  • There are around 1.7 million seafarers employed in merchant ships, but they represent a mere 5 per cent of the total of those working at sea.
  • Fishers number an estimated 27 million, with around 20,000 under 18 years of age.
  • Before Covid-19, the daily cruise ship capacity was almost half a million passengers; they were cruising in a total of over 300 cruise ships. Post-Covid-19, cruising numbers are bound to increase once more. And let’s not forget the millions of passengers carried annually on ferries.
  • There are just under 500 oil and gas platforms positioned in coastal waters worldwide, all serviced by numerous support vessels. The size of the offshore oil and gas workforce is probably around 170,000.
  • There are recreational sea-goers, including those embarked on, and crewing, yachts of various types and sizes, and the luxury yacht business is growing every year.
  • There are those serving in the world’s navies and other public vessels, including those deployed by coastguards for law enforcement activities in coastal zones.
  • Finally, and certainly not to be forgotten, there are those who fall victim to, or who are themselves engaged in, various forms of criminal activity at sea.

All of these people – men, women and children – have a right to go about their lawful business in a safe and secure environment. Sadly, the oceans are by no means a safe space for them. Evidence of abuse on the seas is accumulating on a daily basis:

  • Slavery is still with us – men, women and children are forced to work for years without pay on board fishing vessels thousands of miles away from their homes.
  • Merchant seafarers are subjected to sub­standard working conditions, their physical and mental well-being under constant threat – especially acute during the Covid-19
    pandemic (as the aviation hubs closed down an international crew change crisis developed and seafarers’ tours of duty were extended, often indefinitely).
  • Many seafarers have been abandoned in foreign ports with no pay and no way home, some disappearing without trace – missing persons whose families have no idea what has befallen them.
  • People-trafficking and migrant smuggling is a profitable enterprise for unscrupulous criminal gangs.
  • Crimes committed on board cruise ships, including sexual assaults, are rarely investigated by competent authorities and, frequently occur in situations that are jurisdictionally confusing. Many victims are denied justice in the wake of the abuse to which they have been subjected.
The title page of Grotius’s work on the freedom of the seas. Photo: PD

Human rights abuses are occurring far too frequently, some of them a constant feature of life at sea. Many people at sea are there against their will and are profoundly vulnerable to the whims and unlawful practices of criminal gangs taking advantage of what persists as an almost anarchic environment. It is profoundly disturbing that slavery and piracy, assumed by some to be consigned to history, are still thriving at sea. This is a situation that demands change and the development of an international programme of action to achieve it.

There is an almost complete lack of criminal law enforcement at sea. Coastal states do not adequately enforce law in their coastal zones – and nobody has responsibility for the high seas, except flag states, many of which are simply not interested in anything but the commercial benefit to be gained from their business. Despite exclusive jurisdiction, flag states have no ability to enforce any law on the high seas. That vast expanse is a legal vacuum – an anarchic space in which unscrupulous criminals can act with impunity.

An example of the consequences of a lawless ocean occurred in the Mediterranean in March 2019. It involved a vulnerable British girl on board a Panamanian-registered cruise ship, the MSC Divina. She was raped by an Italian man. The vessel put into Valencia, the Spanish police investigated the crime, and the case went before a Spanish court. But the court had no jurisdiction to try the case; the offence had occurred beyond Spanish jurisdiction, in Panamanian exclusive jurisdiction while the vessel was steaming on the high seas. So the accused was released and the victim of his assault was left traumatised and with no effective legal remedy. At present there is no international law that covers this type of situation.

In theory, human rights apply at sea to the same extent that they apply ashore – but they are not being applied to the same degree. Far too many men, women and children are being abused and ill-treated, and little is being done to protect them. Those who have a legitimate reason to be at sea and who are trying to go about their lawful business have a right to do so in a stable and secure environment. They need to be safe and to feel secure. What they desperately need is not free seas but safe and secure seas. Not mare liberum but mare legitimum.

The supreme irony is that if Grotius were alive today, knowing what we know of his philosophical approach as the Father of International Law, that is precisely what he would be arguing for himself.

Steven Haines is Professor of Public International Law, University of Greenwich, and a Trustee of Human Rights at Sea.