The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea

Abstract

The oceans of the world at once separate and connect us. As much as the sea provides a formidable natural barrier between the continents, it also provides a means of contact and communication, a navigable expanse and plentiful resource that has long been exploited for both individual and collective gain.1 Over the course of history, powerful maritime states have played the primary role in shaping the public order of the oceans. Although state practice continues to play a dramatic role, the twentieth century also witnessed prolonged and repeated efforts to codify that practice into a veritable treatybased Law of the Sea.2 In 1967—between one international effort at codiacation and another— Malta’s Ambassador to the United Nations, Arvid Pardo, famously urged the U.N. General Assembly to take “immediate action to prevent the breakdown of law and order on the oceans” in the face of growing concern that exactly such a breakdown was imminent.3 On December 10, 1982, the United Nations Convention on the Law of the Sea (“UNCLOS”), the product of decadelong negotiations, was opened for signature at Montego Bay, Jamaica.4 Hav-