For those of us in attendance at the International Tribunal for the Law of the Sea (ITLOS) in Hamburg on May 27, far more was at stake than just the treatment of one crude oil tanker detained for months in West Africa. The five judges issued a ruling that reaffirmed a broad, universalist understanding of freedom of navigation, clarifying that any exceptions, such as the obligation to counter piracy, must be applied narrowly. Politicians, policymakers, and analysts around the world, including in the US, have sometimes branded any undesired activities at sea as “piracy.” The tribunal underscored that piracy is a narrowly defined term in international law, not a “Put a ship in jail for free” card. Freedom of navigation—the core principle at the heart of the UN Convention on the Law of the Sea (UNCLOS)—was strengthened further by the ruling.
The story should not end there, however. Piracy and other security concerns remain real, not just for African coastal nations but for all nations, as disruptions to traffic in the Middle East persist and global trade relies on routes circumnavigating Africa. Reforms and updates to regional codes, increased cooperation between coastal states and flag states, and better training in the law of the sea could all help make navigation not only free but more secure.
Unlawful arrest or regional piracy suppression?
The journey to Hamburg began in August 2022. The motor tanker Heroic Idun, a very large crude carrier under the flag of the Marshall Islands, was idling in international waters off São Tomé and Príncipe in the Gulf of Guinea as it awaited approvals to load oil from a Nigerian terminal. On August 12, the navy of Equatorial Guinea approached the vessel and ordered it to proceed to Equatorial Guinea for investigation. Equatorial Guinea was acting in response to a request from Nigeria to aid it in apprehending the vessel for suspected involvement in oil theft and abusing regional fears of piracy to evade the Nigerian navy.
The Marshall Islands argued that Equatorial Guinea, by training its guns on the Heroic Idun, committed an act “fundamentally incompatible with any concept of freedom of navigation.” Past ITLOS cases had confirmed that freedom of navigation rested on exclusive flag state control unless exceptions were expressly justified by UNCLOS or other international treaties.
Equatorial Guinea countered that they had such a justification: counter-piracy missions. UNCLOS Article 100 requires states to cooperate to the greatest extent possible in the suppression of piracy. In addition, the regional Yaoundé Code of Conduct (COC) allows states to request assistance from one another in addressing crime at sea, which in the Gulf of Guinea is an intertwined mix of piracy, oil theft, illegal fishing, and other crimes. It also requires states to cooperate “to the fullest possible extent” in the arrest of persons “reasonably suspected of committing piracy.”
Equatorial Guinea thus argued that the Yaoundé COC provided a specific, regional interpretation of UNCLOS Article 100 that could justify the arrest of the Heroic Idun. Nigerian government messages to Equatorial Guinea accused the vessel of involvement of oil theft. The government used a broad interpretation couched in language of the regional COC to connect suspected oil theft to the specific nature of piracy in the Gulf of Guinea.
The Marshall Islands responded to this argument by arguing that the COC cannot create law relevant to the Marshall Islands that contravenes UNCLOS. They also contested Equatorial Guinea’s use of the piracy exception. While Equatorial Guinea and Nigeria are members of the Yaoundé COC, the Marshall Islands is not. Because they had not agreed to the COC, any obligations or rights that exceeded those set out in UNCLOS could not apply to the Marshall Islands or its vessel. Furthermore, the Marshall Islands argued that the invocation of piracy was not rooted in any actual evidence. An accusation of piracy must be supported by due diligence to verify that the accusation is reasonable.
This set the stakes of the case. A victory for Equatorial Guinea would strengthen efforts to achieve maritime security in challenging regions but would also fragment UNCLOS interpretations and encourage further expansion of claims of jurisdiction over foreign vessels in international waters. A victory for the Marshall Islands would reinforce freedom of navigation but also keep high the legal hurdles for states attempting to stop criminal activity in insecure regional waters.
Freedom of navigation and regional maritime security
As Judge Albert Hoffmann of South Africa read the judgement, he delivered a resounding victory for the Marshall Islands and freedom of navigation. UNCLOS would remain supreme. Regional arrangements, no matter how well intentioned, could not create new law applicable to all states. The Yaoundé COC and its East African counterpart, the Djibouti COC, are non-binding instruments for regional coastal states. On piracy, the court ruled a state must investigate promptly and release a vessel if it finds no evidence of piracy. Simply assuming that a ship is suspected of piracy and detaining it for months without collecting supporting evidence, as Equatorial Guinea did, is illegal.
However, there is still much that regions could do to improve security without running afoul of the law of the sea. Closer cooperation with flag states is an essential step. Organizations have suggested reforms and updates to COCs that include increased cooperation between coastal states and flag states. Training programs can also help. The Heroic Idun incident could have been avoided or minimized had officers applied the law of the sea in accordance with the standards taught through training programs sponsored by the US government or European legal institutions. Solid legal training is cheaper than a warship, reduces the incidence of legal disputes that degrade trade or raise escalation risks, and improves the effectiveness of local efforts to ensure maritime order.
The court’s findings also carry major implications for the United States and its European allies, by underscoring piracy’s narrow definition in international law. Labeling as “piracy” any unfavorable maritime behavior is a common public relations tactic, but it is also part of the legal justification for seizures of foreign-flagged vessels. The court has made it clear that such efforts to expand the aperture of “piracy” must meet an exceptionally high standard. Playing the “Put a ship in jail for free” card can also be strategically counterproductive. Broadening the piracy exception would put all nations that rely on maritime trade, including the United States, at much higher risk of trade disruptions and possibly require more escort and patrol presence, which many navies today can ill-afford.
