When the Spanish navy in 2002 intercepted a Yemen-bound ship and found a secret cache of missile components in its cargo, it quickly brought into sharp relief the complexities of the ‘law of the sea’ in the 21st century.
A shelf in Professor Douglas Guilfoyle’s office displays a tiny replica of the British clipper Cutty Sark. A small model of a Greek fishing vessel and a ship’s compass sit alongside it. They’re just the marine-themed ornaments you would expect to find in the workspace of an expert on the international law of the sea.
But, as the Monash University academic explains, it wasn’t the salty romance of seafaring that attracted him to this area of law. Instead, it was the sheer intellectual complexity of the subject.
In fact, Professor Guilfoyle’s interest in the law of the sea wasn’t sparked until his master’s in international law course at the University of Cambridge. One day, as he was casting around for a challenging PhD topic, his eye was caught by a newspaper article.
“American and Spanish forces had intercepted a ship on the high seas between North Korea and Yemen,” he explains. “It was carrying hidden Scud missile components under sacks of concrete. But after stopping and searching the ship they let it go because there was no legal basis for detaining it.”
The junior lawyer found himself fascinated by the abstract problems thrown up by this episode. What was the law governing the Spanish navy when, acting on US intelligence, it stopped and searched a ship of uncertain nationality in transit between North Korea and Yemen and found a cache of weapons that didn’t appear on its cargo list? The law of jurisdiction? The law of warfare?
When he realised that this was an issue of law enforcement on the high seas – and that no solid book-length study of this area existed – he knew he had a meaty research topic. What he didn’t know was where it might lead.
In 2008, Professor Guilfoyle had only recently taken on his first academic position, at University College London, when pirates began attacking European shipping off the coast of Somalia. Suddenly, governments were looking for people who could consult on the law of piracy. “I was in a field of one,” he recalls.
Seconded to a United Nations legal issues group chaired by the foreign minister of Denmark, he found himself in meetings with officials from 20 or 30 governments and half-a-dozen international commercial organisations, all working to craft a communal response to Somali piracy.
This work was only the first of a series of consultancies to governments in need of his expertise in parsing the complexities of the 1982 UN Convention on the Law of the Sea (UNCLOS), a 300-article agreement that binds 166 of the UN’s 193 member states. Unusually for an international agreement, UNCLOS also includes a compulsory dispute settlement system.
In 2010, Professor Guilfoyle was asked to serve on the legal team for Mauritius, in a case the island nation was bringing against Britain over the 55 tiny islands of the Chagos Archipelago, the site of a US air base that had been implicated in ‘rendition’ flights taking prisoners to destinations where it was presumed they would be tortured.
“There has been a long dispute between Mauritius and the UK over sovereignty over these islands,” Professor Guilfoyle explains. “Mauritius couldn’t dispute sovereignty under UNCLOS, but it could dispute the environmental preservation zone that the UK purported to have declared around the islands. This zone was meant to protect the environment and yet there was a big US base in the middle of it. The zone left the base in place but excluded Mauritian fishermen.”
The 2014 hearing of this case, won by Mauritius, was held in a ballroom at Istanbul’s historic five-star Pera Palace Hotel because the Mauritians viewed the usual hearing venue, The Hague’s Permanent Court of Arbitration, as “too close to the UK”.
In 2016, the Permanent Court of Arbitration also ruled against China and in favour of the Philippines, which was disputing China’s traditional claims of sovereignty over vast tracts of the South China Sea, including areas within 50 nautical miles of the Philippines coast. The academic’s phone ran hot as media from Australia and Vietnam called for his views on the implications of this historic decision. Was the ruling enforceable? If not, did this make international law a merely symbolic entity?
Questions such as these misconstrue the meaning of international law, Professor Guilfoyle says, in that they imply that laws don’t exist if they are not being enforced.
“International law is not about prohibition. It’s largely a law of cooperation,” he says. “China started negotiating with the Philippines far more earnestly than it had before that ruling. And other states, such as Vietnam, are watching carefully.
“It’s international law that often sets the framework in which negotiations can be conducted,” he says.
“The international law of the sea, for example, wasn’t going to stop Somali pirates. But it did provide a framework in which states could cooperate to suppress piracy.”
- The international law of the sea provides a framework for countries to negotiate disputes.
- The 1982 UN Convention on the Law of the Sea binds 166 of the UN’s 193 member states, but not the US.
- Unusually for an international agreement, the UN Convention on the Law of the Sea entails a compulsory dispute settlement system.
- In 2016, the Hague-based Permanent Court of Arbitration ruled against China and in favour of the Philippines over China’s claims of sovereignty in the South China Sea.