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Report January 23, 2025

From Russia’s shadow fleet to China’s maritime claims: The freedom of the seas is under threat

By Elisabeth Braw

Table of contents

Executive summary

The maritime order, which ensures the freedom of the seas, is under intense and growing threat from rule violations in areas including maritime borders and the right of innocent passage. As the Atlantic Council has documented in the first two reports within its Threats to the Global Maritime Order: Securing Freedom of the Seas initiative, continuing attacks on merchant shipping in the Red Sea and beyond pose a serious threat to the freedom of the seas. So does the shadow fleet, whose size has ballooned since Russia began relying on it. This report analyzes the deterioration of the global maritime order, focusing on rule violations in areas including maritime border alteration, harassment of civilian vessels, and disturbance of navigational tools. It also provides recommendations for measures that can help halt this deterioration of the global maritime order.1The Atlantic Council is grateful to the Maritime Threat initiative’s partners, DNK and the Norwegian Shipowners’ Association.

Introduction

“Our purpose is shortly and clearly to demonstrate that it is lawful for the Hollanders, that is the subjects of the confederate states of the Low Countries, to sail to the Indians as they do and entertain traffic with them. We will lay this certain rule of the law of nations (which they call primary) as the foundation, the reason whereof is clear and immutable: that it is lawful for any nation to go to any other and to trade with it.”

Thus wrote Hugo Grotius in Mare Liberum (The Free Sea), his seminal work that laid the foundation for the maritime rules that collectively form today’s global maritime order.2Hugo Grotius, Mare Liberum, Richard Hakluyt with William Welwod’s Critique and Grotius’s Reply Edited and with an Introduction by David Armitage, Liberty Fund, 2004, 10, https://scholar.harvard.edu/files/armitage/files/free_sea_ebook.pdf. In the brief treatise, the Dutch legal scholar presented a “Disputation Concerning the Right Which the Hollanders Ought to Have to the Indian Trade.” When he wrote it, the world’s oceans were an anarchic collection of waters ruled by nothing more sophisticated than brute force. Dutch traders seeking to sail to India lacked protection in law, just as other traders did.

It took a long time for Grotius’s concept of the free sea to develop into a set of rules and treaties that truly made the seas free, but such a patchwork was in place by the early twenty-first century. Though they were certainly not without loopholes, controversies, and differences in interpretation, these agreements made it possible for global trade to take place without merchant vessels needing to worry about being attacked by forces representing nation states, without coastal states needing to worry about harm to their waters and coastlines caused by merchant vessels, and, indeed, without states needing to worry about neighbors changing maritime borders in violation of international agreements. When there were disagreements, countries could reasonably expect to have their case heard by one of the institutions set up as part of this global maritime order. Indeed, the understanding that global trade, and thus increased prosperity, is only possible if oceans—a global commons—are safe for civilian activities meant that it was in countries’ interests to adhere to global maritime rules.

It worked. In 2021, nearly 2 billion metric tons of cargo were shipped globally, an increase from some 100 million metric tons in 1980.3“Container Shipping—Statistics & Facts,” Statista, January 10, 2024, https://www.statista.com/topics/1367/container-shipping/#topicOverview. The expansion of undersea oil and gas pipelines would not have been possible without the global maritime order, nor would the explosive growth of undersea data cables that power modern economies. In September 2024, the world had 532 active undersea data cables and another seventy-seven planned.4Lane Burdette, “How Many Submarine Cables Are There, Anyway?” Telegeography, September 9, 2024, https://blog.telegeography.com/how-many-submarine-cables-are-there-anyway.

Treaties and other agreements governing the seas

“To the Phoenicians, who were called Canaanites by the sacred writers, who inhabited the coast of the Mediterranean from the Island of Aerad to Mount Carmel, to which country they had been driven by the Hebrews, and whose chief city was Tyre, has been ascribed the distinction of being the inventors of a marine and the originators of maritime commerce,” legal scholar George S. Potter noted in the Yale Law Journal in 1902.5George S. Potter, “The Sources, Growth and Development of the Law Maritime,” Yale Law Journal 11, 3 (1902), 147, https://www.jstor.org/stable/782993. But, he added, “[it] is not known whether the Phoenicians, the Carthaginians or other ancient nations, their contemporaries, possessed or published any maritime laws or regulations.” Indeed, although the Phoenician traders commanded the maritime environment around them and conceived the first known Law of the Sea, they did not write it down. Codified maritime rules were instead introduced by the Roman Empire, another maritime superpower. It based its maritime rules, which were introduced in the sixth century and mostly concerned collisions and lost or damaged cargo, on the Rhodian Sea Law, which is thought to have been drafted in the fourth century BCE.6Lieutenant Edward F. Oliver, “Twenty-Five Hundred Years of the Rules of the Road,” US Naval Institute Proceedings 81, 11 (1955), https://www.usni.org/magazines/proceedings/1955/november/twenty-five-hundred-years-rules-road#:~:text=The%20birth%20of%20the%20Law,after%20the%20island%20of%20Rhodes “As sea commerce under the Byzantine Empire flourished, the seaport cities along the coasts of Spain and France grew in importance. Each port contributed its own local ordinances to the basic Rhodian Law,” Edward Oliver noted in the 1950s.7Ibid. Other cities and provinces added their own rules, including the Rolls of Oléron in the French duchy of Guyenne in 1175 and the Code of Visby on the Baltic Sea island of Gotland in 1505.8Ibid.

But by the time Hugo Grotius was born in 1583 in the Dutch city of Delft, the Rhodian Sea Law had declined in importance and the oceans were an unruly domain—as they were to remain, for the most part, until nations became serious about creating order in the nineteenth century. Indeed, the Dutch scholar remains a pillar of the global maritime order because he was the first to set out the concept of the free sea (or the freedom of the seas, as the concept is also known). This went far beyond the regulation of collisions and lost or damaged cargo; it is the basis on which civilian maritime activities can take place.

Since the late 1800s, and especially since the end of World War II, the community of nations concluded that the freedom of the seas is only possible if a significant number of nations—ideally all nations—commit to it. While a smaller group of countries began to sign agreements on maritime and naval rules at the turn of the century, after the end of World War II a larger group—which eventually included virtually every nation on the planet—negotiated and agreed on an impressive collection of treaties, rules, and conventions that still govern the oceans and, thus, guarantee the freedom of the seas.

The International Convention for the Safety of Life at Sea (SOLAS), which governs the safety of merchant ships, was adopted in 1914 in response to the Titanic disaster. A second version followed in 1929, a third in 1948, and a fourth in 1960.9“International Convention for the Safety of Life at Sea (SOLAS),” International Maritime Organization, 1974, https://www.imo.org/en/About/Conventions/Pages/International-Convention-for-the-Safety-of-Life-at-Sea-(SOLAS),-1974.aspx. SOLAS has been adopted by 121 nations, which collectively represent 98 percent of global shipping tonnage.10“Status of Treaties,” International Maritime Organization, last visited December 6, 2024, https://web.archive.org/web/20200528090136/http://www.imo.org/en/About/Conventions/StatusOfConventions/Documents/StatusOfTreaties.pdf.

The International Convention on Civil Liability for Oil Pollution Damage (CLC), which compensates those affected by oil spills from oil-carrying ships, was passed in 1969, entered into force in 1975, and was succeeded by a new protocol in 1992.11“International Convention on Civil Liability for Oil Pollution Damage (CLC),” International Maritime Organization, last visited December 6, 2024, https://www.imo.org/en/About/Conventions/Pages/International-Convention-on-Civil-Liability-for-Oil-Pollution-Damage-(CLC).aspx. The convention requires all seagoing vessels carrying more than two thousand tons of oil as cargo to maintain insurance covering oil spills.12Ibid.

On the basis of the CLC, a large majority of the world’s nations agreed on the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution, whose purpose was to compensate those affected by spills from oil tankers. In 1992, a successor convention was passed, which has been signed and adopted by 122 nations.13“Parties to the International Liability and Compensation Conventions,” IOPC Funds, last visited December 6, 2024, https://iopcfunds.org/about-us/membership/a-z-listing/. Thirty-three mostly Western nations have also adopted a supplementary convention.14Ibid. This report uses “Western” to mean liberal democracies; that is, it also includes countries in the geographical east such as Japan and Australia. On the basis of the two conventions, countries receiving oil pay into two so-called IOPC Funds, which administer payouts to those affected by oil spills. The funds are financed by contributions by recipients of oil; thus, IOPC countries that import oil pay into the funds. (The fund based on the supplementary convention involves additional contributions and compensation in case of oil spills.) To date, the 1992 fund has settled 158 incidents.15“Funds Overview,” IOPC Funds, last visited December 6, 2024, https://iopcfunds.org/about-us/.

The International Convention for the Prevention of Pollution from Ships (MARPOL) was passed in 1973, was amended in 1978, and came into force in 1983. It has been adopted by 158 nations, which collectively represent 99 percent of global shipping tonnage.16“Status of Treaties.”

The International Convention on Maritime Search and Rescue (SAR) was passed in 1979 and has been adopted by 113 countries, which collectively represent 80 percent of global shipping tonnage.17Ibid.

The United Nations Convention on the Law of the Sea (UNCLOS) is the pillar of the global maritime order. This constitution of the oceans “lays down a comprehensive regime of law and order in the world’s oceans and seas establishing rules governing all uses of the oceans and their resources,” and constitutes the world’s most ambitious attempt at maritime governance to date.18“United Nations Convention on the Law of the Sea,” International Maritime Organization, last visited January 6, 2025, https://www.imo.org/en/ourwork/legal/pages/unitednationsconventiononthelawofthesea.aspx#:~:text=The%20United%20Nations%20Convention%20on,the%20oceans%20and%20their%20resources. The need for such a treaty became obvious during the twentieth century, when “the situation called for the codification of the customary law of the sea for the benefit of all nations.”19“The United Nations Convention on the Law of the Sea at 40,” International Seabed Authority, last visited January 6, 2025, https://www.isa.org.jm/unclos-at-40/#:~:text=As%20of%20July%202021%20it,are%20automatically%20members%20of%20ISA. UNCLOS puts in writing what constitute territorial waters and exclusive economic zones, which rights coastal states and vessels have in specific waters, coastal states’ rights to continental shelves, and other fundamental matters of maritime governance. The convention, which incorporates existing customary law, was signed in 1982, entered into force in 1994, and has been adopted by 170 countries. Violations notwithstanding, it has been a success.20“United Nations Convention on the Law of the Sea.” While United States has not signed the convention, it complies with it.

The International Maritime Organization (IMO), the global maritime order’s most important organization, was established as the Inter-Governmental Maritime Consultative Organization (IMCO) in 1948, came into force in 1958, and was renamed in 1982.21“International Maritime Organization (IMO),” United Nations Dag Hammarskjöld Library, last visited December 6, 2024, https://research.un.org/en/docs/unsystem/imo#:~:text=International%20Maritime%20Organization%20(IMO)&text=Established%20as%20the%20Inter%2DGovernmental,International%20Maritime%20Organization%20in%201982 The agency, which is part of the United Nations system, is “responsible for measures to improve the safety and security of international shipping and to prevent pollution from ships” and is also “involved in legal matters, including liability and compensation issues and the facilitation of international maritime traffic.”22“Frequently Asked Questions,” International Maritime Organization, last visited December 20, 2024, https://www.imo.org/en/About/Pages/FAQs.aspx. One hundred and seventy-six countries, which collectively represent virtually all global shipping tonnage, are members of the organization; they are also represented in the IMO Assembly, the organization’s governing body.23“Member States,” International Maritime Organization, last visited December 6, 2024, https://www.imo.org/en/OurWork/ERO/Pages/MemberStates.aspx.

Together with lower-profile conventions and agreements, these agreements ensure that the world’s oceans are safe for civilian activities and that such activities don’t harm other maritime practitioners or coastal states. Over the decades, the maritime industry and national governments have also added rules and legislation of their own, all of which have helped make civilian maritime activities safer. “Shipping is the first global business,” noted Neil Roberts, secretary of the maritime insurance industry’s Joint War Committee, which classifies waters according to risks posed to merchant vessels. He added the following.

  • The big thing in the early and mid-1980s was bulkers breaking up. That was because of structural deficiencies, and sometimes it was down to where they were built, how they were built, whether the welds were any good, whether the designs were right. That resulted in lots of international legislation to minimize the risk of further such incidents. And from the late 1960s onwards, there were a number of increasingly large oil spills, which brought in double bottom tankers to try to minimize such incidents. The incidents that took place by accident, not design. Apart from the Tanker War, there was no intent to cause harm. The incidents that occurred were the result of some parties wanting to save costs and maximize profit.24Interview with the author, November 1, 2024.

This general adherence to global maritime rules allowed trade to increase as globalization intensified, which created a need for larger and larger ships. “The global maritime system is very reliable,” Roberts noted. “There are accidents. It’s not completely safe, but it’s really, really efficient. It costs almost nothing to ship a television from East Asia to Europe. Today the largest container ships are 24,000 TEU, having started off at around 1,000 in the ’60s.”25Ibid. TEU, twenty-foot equivalent unit, is the size of the standard shipping container.

UNCLOS defines ships’ and coastal states’ rights and defines the free sea’s fundamental right: the right of innocent passage. “Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea,” UNCLOS’s Article 17 states.26“United Nations Convention on the Law of the Sea,” Article 17. The convention also defines territorial waters (“territorial sea up to a limit not exceeding 12 nautical miles”) and exclusive economic zones (EEZs, which “shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured”).27Ibid., Articles 3 and 57. The convention defines innocent passage as continuous and expeditious journeys that don’t prejudice the “peace, good order, or security of the coastal State.”28Ibid., Article 19. This means vessels using the right of innocent passage are barred from threatening or using force, conducting surveillance, fishing, and several other activities.

The convention gives coastal states the right to suspend innocent passage through their territorial waters under certain circumstances, but they cannot suspend innocent passage in their EEZs. In international straits—such as Denmark’s Great Belt and the Strait of Malacca between Malaysia, Indonesia, and Singapore—vessels have the right to transit passage, which the adjoining coastal states don’t have the right to suspend.29Ibid., Part III. Transit passage is “the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.”30Ibid., Article 38. Under UNCLOS, coastal states are also entitled to continental shelves. An island that doesn’t form the main part of a country lacks the right to territorial waters but has the right to an EEZ and a continental shelf. A rock does not.31Steven Geoffrey Keating, “Rock or Island? It Was an UNCLOS Call: The Legal Consequence of Geospatial Intelligence to the 2016 South China Sea Arbitration and the Law of the Sea,” Journal of National Security and Law Policy 9, 509 (2018), 512, https://jnslp.com/wp-content/uploads/2018/09/Rock_or_Island_It_Was_an_UNCLOS_Call_3.pdf.

Svein Ringbakken, managing director of the maritime war-risk insurer DNK, observed the following.

  • A couple of decades ago, we still had the build-up of the international maritime regime through the IMO, with various conventions being agreed. For example, the IMO responded to pollution issues or the need for regulation of tankers. When things happened that demonstrated a new need for action, countries would negotiate new international conventions regulating these matters or amend existing ones. Countries were doing a lot. That activity goes back to the seventies and eighties and really to the start of the IMCO and then the IMO. You’ve got the oil-spill regimes that came in place from the late sixties and were adjusted several times. After the tanker incidents of the late eighties, there was a major clean-up in terms of quality of tankers. Then you had the Exxon Valdez in the United States that prompted the US to pass the US Oil Pollution Act of 1990, and after that followed an international regulatory period within the UN-based system. Then you had a challenge after some tanker accidents and similar incidents like that in the early 2000s where the EU [European Union] got active, and the Europeans definitely built on the international system. And we had port state control regimes where Paris MoU [memorandum of understanding] and other regimes were developed to enforce the international system.32Interview with the author, November 18, 2024.

In 2023, in what was perhaps the last hurrah of post-Cold War multilateralism, 193 countries passed the High Seas Treaty, whose purpose is to protect the marine environment of the high seas. At the time of writing, however, only sixteen countries have ratified the treaty.33“High Seas Treaty Ratification Tracker,” High Seas Alliance, last visited December 6, 2024, https://highseasalliance.org/treaty-ratification/.

Recent violations of the global maritime order

At the time of writing, the Houthis, armed with weapons supplied by Iran, have been waging a campaign against Western-linked shipping in the Red Sea for more than a year. By June 2024, traffic through the Suez Canal, and thus the Red Sea, had declined by 64.3 percent from May 2023.34“Suez Canal Authority Extends Discounts as Traffic and Revenues Plummet,” Maritime Executive, June 16, 2024, https://maritime-executive.com/article/suez-canal-authority-extends-discounts-as-traffic-and-revenues-plummet. Attacks on shipping are analyzed in the Atlantic Council’s Maritime Threats project’s report “What Attacks on Shipping Mean for the Global Maritime Order.”35Elisabeth Braw, “What Attacks on Shipping Mean for the Global Maritime Order,” Atlantic Council, August 9, 2024, https://www.atlanticcouncil.org/in-depth-research-reports/report/what-attacks-on-shipping-mean-for-the-global-maritime-order/ Since the report’s publication, it has emerged that Russia appears to be providing the Houthis with targeting data and that the two sides are in talks regarding Russian arms deliveries.36Elisabeth Braw, “Russia Is Running an Undeclared War on Western Shipping,” Foreign Policy, November 7, 2024, https://foreignpolicy.com/2024/11/07/russia-houthis-targeting-data-war-western-shipping-gaza/. Marco Rubio, the new Donald Trump administration’s nominee for secretary of state, has been vocal about China’s indirect support of the campaign: “Next time China talks about being a ‘responsible’ global leader that promotes a ‘community of common destiny for mankind’ remind them how they are doing nothing to stop Houthis from attacking ships in Red Sea carrying medicine, food & fuel for countries all over the world,” he wrote on X in March 2024.37Marco Rubio (@marcorubio), “Next time China talks about being a ‘responsible’ global leader that promotes a ‘community of common destiny for mankind’ remind them how they are doing nothing to stop Houthis from attacking ships in Red Sea carrying medicine, food & fuel for countries all over the world,” X, March 13, 2024, 8:41 a.m., https://x.com/marcorubio/status/1767908957593444713.

The fast-growing shadow fleet, which poses an acute risk to coastal states, legally operating ships, the marine environment, and its own crews, has joined attacks on shipping as a pervasive threat that has ballooned since 2022.38The shadow fleet is analyzed in: Elisabeth Braw, “The Threats Posed by the Global Shadow Fleet—and How to Stop It,” Atlantic Council, December 6, 2023, https://www.atlanticcouncil.org/in-depth-research-reports/report/the-threats-posed-by-the-global-shadow-fleet-and-how-to-stop-it/.

Yet the shadow fleet and state-linked attacks on merchant shipping are not the only violations of global maritime rules. On the contrary, the global maritime rules, treaties, and conventions nations and companies have so painstakingly built since Roman times and, more collectively, since the end of World War II, are being systematically violated by companies, governments, and groups operating in coordination with such governments.

Ringbakken observed, “What we’re seeing now is totally different from the past decades. The dark fleet, for example, demonstrates that there’s a very strong political will to challenge the global maritime system, and it’s in fact much wider than the maritime system. The magnitude of the challenge to the system, both in practice and in the fact that major maritime nations are quite overtly challenging the system, is totally different today than it ever was in the past.”39Interview with the author, November 18, 2024.

Roberts noted, “The global maritime order has undoubtedly deteriorated. For sixty years or so, we’ve had cooperation. Harmonious trades have been allowed because the countries in the world have observed the system, the rules, the IMO legislation. And now fractures are appearing. The question is, how far can it fracture before people start reacting and changing what they do?”40Interview with the author, November 1, 2024.

Retired Vice Admiral Duncan Potts, who began his career in the Royal Navy in 1979, observed the following.

  • In the Cold War years, where I spent the first eleven years of my service, the world was clearly very polarized and we all grew up knowing that the Soviet Union was a potential enemy and everything we did in the military was focused on that. But even during that time, there were accepted practices at sea. The respect for the high seas as a global common where both sides could sail and trade freely . . . issues such as innocent passage and transit passage were respected. We even had agreements between the Warsaw Pact and NATO, protocols for if you met at sea and wished to communicate and understand what the other side was doing. We then, of course, transitioned after 1990 into a period of thirty years where, from a Western point of view, the freedom of navigation on the high seas was not just assured, but the West really had control of the high seas and could use the high seas for whatever it wanted to do within the framework of UNCLOS. Now that seems to have unraveled or be unraveling quite quickly.41Interview with the author, November 3, 2024.

Navy Captain Niels Markussen, the director of the NATO Shipping Center, added the following.

  • The maritime order has been developed over time both by nations but also by the industry because it served an agreed and common purpose. The Western world has dominated the development of the rules and regulations, but it has worked, down to the most basic things. We all know when to turn starboard, and it goes on from there. In the nineties, when we saw a rise in globalization, goods really started moving around the world, and most of the goods were carried on ships. Global maritime traffic was a clear manifestation of globalization, and the existing global maritime rules and regulations formed a good legal basis. In the nineties, we didn’t see China that much, but later we did, as a big market but also as the big producer of cheap goods with an expanding need for raw material and energy. They seriously started getting out in the world, interacting and playing a role on the global scene, in the new millennium. More recently, we started seeing China seriously challenging the United States as world leader also in the maritime domain with both a huge navy and coast guard but also with soft and commercial power, buying influence around the world. We are now seeing the maritime domain being much more politicized, also related to the race for resources. China is challenging the West in our dominance of the rules and they also started proactively using them to their own advantage.42Interview with the author, November 3, 2024.

The following pages highlight examples of state-linked maritime rule violations. This is not an exhaustive list. Instead, it is intended to illustrate the breadth of such violations.

Harassment of civilian vessels

Taiwan Strait

Since 2020, harassment of civilian vessels has involved a range of actions.43For more detail, see: Braw, “What Attacks on Shipping Mean for the Global Maritime Order.” These include China’s 2023 deployment of what it labeled an inspection flotilla in the Taiwan Strait. The flotilla had a mandate to inspect all commercial shipping going through the strait on both sides of the median line. In the end, it did not conduct these inspections. But had it done so, it would have caused considerable disruption and delays to commercial shipping in the Taiwan Strait, through which some 240 merchant ships sail on an average day.44Elisabeth Braw, “China Eyes Commercial Ships in a Move to Intimidate Taiwan,” Wall Street Journal, April 11, 2023, https://www.wsj.com/articles/china-eyes-commercial-ships-in-a-move-to-intimidate-taiwan-inspection-xi-jinping-strait-cargo-a5d0d067. Merchant ships sail through the strait on the condition that the median line will be respected and that they won’t be subjected to unwarranted inspections. Taiwan considers the strait international waters, while China considers it Chinese territorial waters. Either way, UNCLOS only allows inspections in territorial waters “[w]here there are clear grounds for believing that a vessel navigating in the territorial sea of a State has, during its passage therein, violated laws and regulations of that State adopted in accordance with this Convention,” and in international waters a coastal state has minimal inspection rights.45“United Nations Convention on the Law of the Sea,” Article 220.

Chinese excavators also regularly appear in the waters around Taiwan’s Matsu Islands and dig up sand without permission. Because the Matsu Islands are not Taiwan’s main island, they don’t have territorial waters, but excavation without permission is still a violation of innocent passage because it is prejudicial to the good order of Taiwan. The excavators’ regular appearances mean the Taiwan Coast Guard Administration needs to sail to the excavators’ location and force them to leave. This involves considerable use of vessels and crew time.46Due to its unusual legal status, and the fact that it’s not a member of the United Nations, Taiwan has not signed UNCLOS, but it adheres to it. In 2020, Taiwan expelled nearly four thousand Chinese sand dredgers and sand-transporting vessels from its waters, a 560-percent increase from 2019.47Yimou Lee, Ann Wang, and Marco Hernandez, “China’s Latest Weapon against Taiwan: the Sand Dredger,” Reuters, July 5, 2021, https://www.reuters.com/graphics/TAIWAN-CHINA/SECURITY/jbyvrnzerve/. This forced Taiwan to buy twelve more patrol vessels, at a cost of $400 million—an otherwise unnecessary expense, but one required for Taiwan to uphold the rules around innocent passage.48Elisabeth Braw, “China is Stealing Taiwan’s Sand,” Foreign Policy, July 11, 2022, https://foreignpolicy.com/2022/07/11/china-stealing-taiwan-sand/; Wen Lii, “From Taiwan to the Philippines, Chinese Illegal Dredging Ships Wreak Environmental Havoc,” Diplomat, August 12, 2020, https://thediplomat.com/2020/08/from-taiwan-to-the-philippines-chinese-illegal-dredging-ships-wreak-environmental-havoc/. The excavators, however, continued to arrive.

Black Sea

International treaties ban attacks on merchant vessels carrying civilians and/or civilian goods.49Charles Cheney Hyde, “Attacks on Unarmed Enemy Merchant Vessels,” US Naval Institute Proceedings 44, 4, 182 (1918), https://www.usni.org/magazines/proceedings/1918/april/attacks-unarmed-enemy-merchant-vessels#:~:text=In%20accordance%20with%20the%20general,attempt%20to%20escape%20or%20offer. Even so, Russia has regularly struck merchant vessels in the Black Sea since its 2022 invasion of Ukraine. As it became clear that war was imminent, insurers raised the Russian and Ukrainian parts of the Black Sea to their highest risk level, a status that requires shipping lines to obtain special permission from their insurers before sailing into the affected waters.50Elisabeth Braw, “The Last Thing Ukraine Needs Is a Shipping Crisis. But It’s About to Have One,” Prospect, February 17, 2022, https://www.prospectmagazine.co.uk/world/the-last-thing-ukraine-needs-is-a-shipping-crisis-but-its-about-to-have-one-russia-conflict. The resulting slump in shipping from the world’s breadbasket led the United Nations, aided by Turkey, to negotiate with Russia for a “grain corridor” that allowed vessels carrying commercial food and fertilizer to leave three Ukrainian ports and sail through the Black Sea to the Bosphorus and on to their destinations in middle- and low-income countries. The corridor, agreed to in July 2022, was initially successful. But by July 2023, Russia was no longer complying with it and called merchant vessels legitimate targets.51Patrick Wintour, “What Was the Black Sea Grain Deal and Why Did It Collapse?” Guardian, July 20, 2023, https://www.theguardian.com/world/2023/jul/20/what-was-the-black-sea-grain-deal-and-why-did-it-collapse.

Since then, Russia has directly or indirectly (through attacks on Ukrainian ports) attacked merchant vessels in the Black Sea. For example, in September 2024, Ukraine reported that Russia had struck a merchant vessel carrying Ukrainian grain to Egypt just after it left Ukrainian territorial waters.“52Ukraine War Briefing: Russia Accused of Unprecedented Missile Attack on Grain Ship in Black Sea,”
Guardian, September 13, 2024, https://www.theguardian.com/world/2024/sep/13/ukraine-daily-briefing-russia-accused-of-unprecedented-missile-attack-on-grain-ship-in-black-sea.

“The acceleration in attacks coincides with harvest season in Ukraine, a country which remains a major supplier of agricultural produce, crucial for global food security,” the UK government reported in October 2024.53“Prime Minister Warns Russian Threat to Global Stability Is Accelerating as Putin Ramps Up Attacks on Black Sea,” UK Prime Minister’s Office, October 22, 2024,
https://www.gov.uk/government/news/prime-minister-warns-russian-threat-to-global-stability-is-accelerating-as-putin-ramps-up-attacks-on-black-sea.

South China Sea

In the South China Sea, vessels belonging to the China Coast Guard (CCG) and the Chinese Maritime Militia have, together with the People’s Liberation Army Navy (PLAN), long marked China’s presence in waters legally belonging to the Philippines, Vietnam, Brunei, Indonesia, Malaysia, and Taiwan. Beijing claims these waters belong to China under its “nine-dash line,” which it first proclaimed in 1947 and which covers 90 percent of the South China Sea.54Rebecca Strating, “Defending the Maritime Rules-Based Order: Regional Responses to the South China Sea Disputes,” East-West Center, January 1, 2020, 5, http://www.jstor.org/stable/resrep25045. Because the nine-dash line could give China rights to fishing and natural resources in these waters, it is perhaps unsurprising that Beijing has tried to unilaterally change established maritime borders in the South China Sea.

For the past fifteen years or so, China has asserted its unilateral interpretation of these maritime boundaries by alternately sending PLAN, CCG, and Maritime Militia vessels to patrol them in what is known as the cabbage-leaf strategy. It has done so not just through harassment of civilian vessels in waters officially belonging to the Philippines, Vietnam, or other countries over whose waters Beijing claims jurisdiction, but also through the construction of artificial islands to solidify its claims there. (See the section on construction of artificial islands below.) As Rebecca Strating, a scholar focusing on the maritime domain in Southeast Asia, notes, this has “raised concerns that as it grows more powerful and confident, China will be able to access maritime resources that it is has no legitimate right to under international law by using economic coercion or stand-over tactics.” In 2016, an UNCLOS tribunal ruled against China in a case brought by the Philippines.55Ibid., 8.

For several years, the Philippines refrained from enforcing the tribunal’s ruling; since 2022, by contrast, it has attempted to enforce it. These efforts have included delivering regular supplies to the skeleton crew manning a naval ship deliberately grounded in 1997 to mark Philippine waters.56Jon Hoppe, “The Measure of the Sierra Madre, Originally the USS LST-821,” US Naval Institute Proceedings 36, 1 (2022), https://www.usni.org/magazines/naval-history-magazine/2022/february/measure-sierra-madre. Vietnam also tries to enforce its jurisdiction over parts of the South China Sea, as does Indonesia. Companies conducting surveys for potential oil and gas exploration in Indonesia’s EEZ, which is partly within the nine-dash line, must do so escorted by Indonesian law-enforcement and naval vessels due to the risk of harassment by China.57“Seismic Strife: China and Indonesia Clash over Natuna Survey,” Asia Maritime Transparency Initiative, October 28, 2024, https://amti.csis.org/seismic-strife-china-and-indonesia-clash-over-natuna-survey/.

Indeed, vessels from the PLAN, the CCG, and the Chinese Maritime Militia regularly harass ships in the EEZs of the Philippines, Vietnam, Indonesia, and other countries. They have, among other actions, directed military-grade lasers against Philippine supply boats and deliberated rammed them.58“Territorial Disputes in the South China Sea,” Council on Foreign Relations, last updated September 17, 2024, https://www.cfr.org/global-conflict-tracker/conflict/territorial-disputes-south-china-sea. It is no surprise that the harassment is escalating, as China’s 2021 Coast Guard Law gives agencies the right to board, inspect, and detain foreign vessels and individuals in waters China considers to be under its jurisdiction.59“Coast Guard Law of the People’s Republic of China,” 25th Meeting of the Standing Committee of the 13th National People’s Congress, January 22, 2021, https://www.airuniversity.af.edu/Portals/10/CASI/documents/Translations/2021-02-11%20China_Coast_Guard_Law_FINAL_English_Changes%20from%20draft.pdf. On June 15, 2024, China’s Coast Guard Order #3, an addition to the 2021 Coast Guard Law, came into effect. Under it, Chinese authorities “can detain any foreign vessel or individual suspected of violating Chinese law in waters within ‘Chinese jurisdiction’ for up to 60 days without trial.”60Chloe Yeung and Karen Hui, “China’s New Coast Guard Regulations Up the Ante in Tense South China Sea,” Asia-Pacific Foundation of Canada, July 4, 2024, https://www.asiapacific.ca/publication/chinas-new-coast-guard-regulations-in-south-china-seas. In August 2024, there were two separate collisions involving Chinese and Philippine vessels in the Philippines’ EEZ. In December, following an incident during which Chinese ships fired water cannons and sideswiped a Philippine fisheries bureau vessel, Beijing accused Manila of having “provoked trouble” in the South China Sea with US backing.61“China Says Philippines Has ‘Provoked Trouble’ in South China Sea with US Backing,” Reuters, December 13, 2024, https://www.reuters.com/world/asia-pacific/china-says-philippines-has-provoked-trouble-south-china-sea-with-us-backing-2024-12-13. CCG vessels also regularly patrol gas projects in the EEZs of Malaysia, Vietnam, and Indonesia to demonstrate China’s claim on the waters, frighten companies from doing business there, or both.62“Seismic Strife.”

The CCG, already the world’s largest maritime law-enforcement body, has also been expanding its fleet. In 2023, it began receiving twenty-two corvettes from the PLAN, which gives it a fleet of more than 150 patrol vessels with a displacement of one thousand tons.63Alex Wilson, “China Adds 22 Ships to World’s Largest Coast Guard Fleet, Japanese News Agency Says,” Stars and Stripes, February 2, 2023, https://www.stripes.com/theaters/asia_pacific/2023-02-02/china-coast-guard-rapid-expansion-9015285.html. Corvettes are warships extremely rare in coast guard fleets; the US Coast Guard’s fleet includes no corvettes.“64Coast Guard Operational Assets,” US Coast Guard, last visited December 6, 2024, https://www.uscg.mil/About/Assets/. The CCG also operates 350 smaller vessels with displacements between 100–999 tons.65Military and Security Developments Involving the People’s Republic of China,” US Department of Defense, 2023, 80, https://media.defense.gov/2023/Oct/19/2003323409/-1/-1/1/2023-MILITARY-AND-SECURITY-DEVELOPMENTS-INVOLVING-THE-PEOPLES-REPUBLIC-OF-CHINA.PDF. Warships would not be necessary for standard maritime law enforcement; instead, China uses its coast guard fleet to enforce its unilateral claims in the South China Sea. The large fleet also allows the CCG to patrol waters far from China’s territorial waters, its EEZ, and the South China Sea. In October 2024, CCG cutters were sighted in the Arctic Bering Sea together with Russian Border Guard vessels.66John Grady, “China Coast Guard Now Operating in the Bering Sea,” USNI News, October 3, 2024, https://news.usni.org/2024/10/03/china-coast-guard-now-operating-in-the-bering-sea.

The maritime harassment signals China’s rejection of UNCLOS and other parts of the global maritime order. “It’s getting more aggressive, they’re getting more bold and it’s getting more dangerous,” Admiral John Aquilino, then commander of the US Indo-Pacific Command, said in April 2024.67Demetri Sevastopulo, “US Pacific Commander Says China Is Pursuing ‘Boiling Frog’ Strategy,” Financial Times, April 28, 2024, https://www.ft.com/content/f926f540-d5c2-43f2-bd8f-c83c0d52bcda. He explained that China was increasing its aggressive conduct through a “boiling the frog” strategy, adding that “there needs to be a continual description of China’s bad behavior that is outside legal international norms.”68Ibid. In July 2024, China’s Foreign Ministry spokesman Lin Jian made the following accusation at a press conference.

  • The US and the EU disregard the history and facts on the South China Sea issue, act against the UN Charter, and misinterpret UNCLOS and other international law [and] the US has gone back on its public commitments of not taking a position on sovereignty issues in the South China Sea. It encouraged the Philippines to launch the arbitration on the South China Sea, and blatantly released a statement to endorse the award. This is political manipulation aimed at using allies to destabilize the South China Sea and the region and advance the nefarious agenda of going after China.69“Foreign Ministry Spokesperson Lin Jian’s Regular Press Conference on July 12, 2024,” Ministry of Foreign Affairs, People’s Republic of China, July 12, 2024, https://www.mfa.gov.cn/eng/xw/fyrbt/lxjzh/202407/t20240730_11463258.html.

(There is no evidence that the United States prompted the Philippines to submit its case to the tribunal.)

The maritime harassment is already causing anxiety among shipping lines and even manufacturers, because many manufacturers are looking to friendshore to Vietnam and the Philippines and away from China. “The situation in the South China Sea hasn’t really affected the shipping industry in itself, but where the rules-based order is being challenged, it will affect the shipping industry in a much bigger sense,” said Line Falkenberg Ollestad, an adviser at the Norwegian Shipowners’ Association.70Interview with the author, November 13, 2024.

China’s construction of artificial islands to claim more sea territory

In 2013, China began constructing artificial islands on undersea rock formations—that is, reefs—in waters also claimed by one or more of the South China Sea coastal nations of the Philippines, Vietnam, Brunei, Indonesia, Malaysia, and Taiwan. On these reefs, collectively known as the Paracel Islands and the Spratlys, China has created more than 3,200 acres of new land.71“China Island Tracker,” Asia Maritime Transparency Initiative, last visited December 6, 2024, https://amti.csis.org/island-tracker/china/#Spratly%20Islands. The country now possesses islands that already host military equipment and infrastructure, and could also host troops and further equipment. As noted earlier, an UNCLOS Arbitral Tribunal unanimously ruled against China in a 2016 case brought by the Philippines involving China’s artificial islands and other UNCLOS violations in its waters. It found that “Beijing’s claims to ‘historic rights’ within the nine-dash line were inconsistent with international law,” “none of the features subject to the arbitration could be legally classified as islands,” and “the features had no entitlements to an EEZ or continental shelf.”72Strating, “Defending the Maritime Rules-Based Order,” 35. The marine features within the nine-dash line that China considers islands (Chinese islands, to be specific) are, the tribunal explained, “rocks that cannot sustain human habitation or economic life of their own [. . .] and generate no entitlement to an exclusive economic zone or continental shelf.”73“PCA Case Nº 2013-19, In the Matter of the South China Sea Arbitration, Before an Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China,” Permanent Court of Arbitration, July 12, 2016, 496,
https://docs.pca-cpa.org/2016/07/PH-CN-20160712-Award.pdf; “Territorial Disputes in the South China Sea.”

Had the tribunal sided with China, it “would have resulted in extensive sovereign rights to living and non-living resources within the EEZs of these features,” including the South China Sea’s “estimated 11 billion barrels of untapped oil and 190 trillion cubic feet of natural gas.”74Keating, “Rock or Island?” 513. Instead, the tribunal sided with the Philippines, also providing definitions of a rock and an island. As Strating notes, the “UNCLOS arbitral award is only final and binding on China and the Philippines, yet it nevertheless has the potential to set a high legal standard on what constitutes an island as opposed to a rock, which may have implications for the maritime claims of other regional states that may be considered ‘excessive.’”75Strating, “Defending the Maritime Rules-Based Order,” 39. (China has also challenged a recognized island that belongs to Japan, and thus generates an EEZ belonging to Japan, on the basis that the island should be considered a rock.76Ibid., 9.)

Had the maritime order worked as intended by UNCLOS and other treaties, China would have abided by the tribunal’s decision, dismantled its artificial islands—especially because these are located in waters also claimed by other countries—and ceased its maritime harassment around the islands. Instead, Beijing rejected the tribunal’s jurisdiction, kept the artificial islands, continued to construct and equip them, and has increased its harassment of civilian vessels there. In December 2024, the Philippines announced it is gathering evidence of Chinese UNCLOS violations with the intention of filing a “foolproof, solid case” against China with the UNCLOS tribunal.77Kathrin Hille, “Philippines Considers New UN Case against Beijing over South China Sea Activity,” Financial Times, December 12, 2024, https://www.ft.com/content/d16f314b-a602-44ce-a304-83f850a50d81.

The fact that China systematically violates UNCLOS in the South China Sea doesn’t mean that all other countries fully uphold it. Though less severe, such violations—which result from different interpretations of UNCLOS—also undermine the global maritime order. They are discussed in the section on compliance with maritime rules.

Manipulation of navigational tools

SOLAS requires all vessels that conduct international voyages and have a gross tonnage of three hundred and above, as well as all passenger ships, to have and use an automatic identification system (AIS).78“AIS (Automatic Identification System) Overview,” NATO Shipping Center, last visited December 6, 2024, https://shipping.nato.int/nsc/operations/news/2021/ais-automatic-identification-system-overview#:~:text=SOLAS%20requirements%3A%20The%20IMO%20Convention,size%20to%20carry%20AIS%20onboard. This rule, which was created in response to collisions between vessels, is another example of how the maritime order’s components have been established to increase the safety of maritime activities.

AIS benefits all vessels and is “is the mariner’s most significant development in navigation safety since the introduction of radar.”79Ibid. Much like the Global Positioning System (GPS), it “is a digital positional awareness system operating in the Very High Frequency (VHF) maritime band. Its purpose is to help identify ships, assist in target tracking, assist in search and rescue operation, simplify information exchange and provide additional information to assist situational awareness.”80Ibid. The US Coast Guard describes AIS as “a shipboard radar or an electronic chart display that includes a symbol for every significant ship within radio range, each with a velocity vector (indicating speed and heading). [. . .] With this information, you can call any ship over VHF radiotelephone by name, rather than by ‘ship off my port bow’ or some other imprecise means. Or you can dial it up directly using [Global Maritime Distress and Safety System] equipment. Or you can send to the ship, or receive from it, short safety-related email messages.”81“Automatic Identification System (AIS) Overview,” Navigation Center, United States Coast Guard and US Department of Homeland Security, last visited December 6, 2024, https://www.navcen.uscg.gov/automatic-identification-system-overview.

In recent years, however, Russia has occasionally and deliberately jammed AIS, initially in the Black Sea. In June 2017, for example, the US Maritime Administration sent out an alert informing recipients that a “maritime incident has been reported in the Black Sea in the vicinity of position 44-15.7N, 037-32.9E on June 22, 2017 at 0710 GMT. This incident has not been confirmed. The nature of the incident is reported as GPS interference. Exercise caution when transiting this area.”82“2017-005A-Black Sea-GPS Interference,” US Department of Transportation Maritime Administration, last visited December 6, 2024, https://www.maritime.dot.gov/msci/2017-005a-black-sea-gps-interference. Since then, AIS incidents linked to Russia have increased and spread to other bodies of water, including the Baltic Sea. Between 2016 and 2022, the think tank C4ADS identified 9,883 suspected instances of interference in AIS and GPS across ten locations, affecting 1,311 civilian-vessel navigation systems.83“Above Us Only Stars: Exposing GPS Spoofing in Russia and Syria,” C4ADS, 2022, https://c4ads.org/wp-content/uploads/2022/05/AboveUsOnlyStars-Report.pdf. The report focuses on four geographic areas. In October 2024, Finnish officials said navigational interference had increased in the Gulf of Finland, the Baltic Sea’s easternmost part.84Anne Kauranen, “Finland Detects Satellite Navigation Jamming and Spoofing in Baltic Sea,” Reuters, October 31, 2024, https://uk.news.yahoo.com/finland-detects-satellite-navigation-jamming-101744355.html.

The Gulf of Finland is home to Russia’s large ports of Ust-Luga and St. Petersburg, which a large share of Russia’s shadow fleet uses. This might explain why Russia would want to disguise the vessels’ journeys, though the increase in navigational disturbance could also be an attempt to disrupt traffic in the Baltic Sea. Either way, such navigational interference violates SOLAS’s maritime safety provisions. For vessels sailing in the affected waters, the interference means that crews cannot be sure which navigational information to trust. Although ships also have Electronic Chart Display and Information Systems (ECDIS)—another SOLAS requirement—as well as paper charts, navigational interference causes delays and could also cause accidents.

“During that time, it was not very common that the Russians or anybody else entered the wrong AIS symbols into their computers or the like,” retired Rear Admiral Anders Grenstad, chief of the Swedish Navy between 2005 and 2011, said. “That came after 2012 and 2013, and especially 2014, when they started to disguise their military ships, and some of the cargo ships also stopped using AIS system or spoofed it. Now it’s getting more and more common. Of course that changes the security situation in the Baltic Sea.”85Interview with the author, November 20, 2024.

In the South China Sea, the Philippines has accused China of engaging in manipulation of navigational tools. After residents in the Philippine province of Zambales reported seeing Chinese vessels near a local dredging site in early December 2024, the Philippine Coast Guard (PCG) investigated and found the dredgers elsewhere. Presenting a sixty-day AIS analysis of one of the ships, PCG spokesman Commodore Jay Tarriela said the vessel “could not realistically navigate those routes.”86“Philippines Accuses Chinese Coast Guard of Using Dredgers for AIS Spoofing,” Maritime Executive, December 13, 2024, https://maritime-executive.com/article/philippines-accuses-chinese-coast-guard-of-using-dredgers-for-ais-spoofing.

Gradual maritime border alteration

China’s construction of artificial islands on undersea rocks in waters that belong to other countries under international law is a clear case of maritime border alteration. However, such acts are difficult for the wronged country to stop because they are conducted gradually. Even if the affected country notices the activity, it’s not clear at what stage it should intervene, especially if the country engaging in the construction is much more powerful.

In the case of China’s artificial islands, it was difficult for the Philippines and other states with rights to the waters to prove China’s intentions in the Spratlys and the Paracel Islands, even though they suspected China was planning to build artificial islands. When it was undeniable that China was building islands, the Philippines brought its case to the UNCLOS tribunal—but when China rejected the tribunal’s ruling, it was unclear what else could be done. The islands are now a fait accompli.

Maritime border alterations can be gradual not just in a temporal sense but in a spatial one. In May 2024, Russia removed the buoys in the Narva River that demark the maritime border between Russia and Estonia.87“Statement of the Estonian Ministry of Foreign Affairs Regarding the Border Incident on the Estonian-Russian Border in the Narva River,” Republic of Estonia Ministry of Foreign Affairs, May 23, 2024, https://www.vm.ee/en/news/statement-estonian-ministry-foreign-affairs-regarding-border-incident-estonian-russian-border. Had Russia tried to alter the land border in a similar fashion, that action would likely have been considered an attack under NATO’s Article 5, but unilateral alterations of maritime borders are less dramatic and less likely to trigger a decisive response. Still, such unilateral alterations violate UNCLOS and contribute to the deterioration of the global maritime order. “Since Russia has already removed buoys in the Narva River, one must ask what might happen in the Black Sea,” Markussen observed. “And when countries undertake such unilateral border alterations, in each case we’ll have a fight over control. They will use such means to challenge us in every way they can.”88Interview with the author, November 1, 2024.

Sabotage of sea-based infrastructure

In September 2022, unknown perpetrators blew up the Nord Stream 1 and 2 pipelines in the Baltic Sea EEZs of Sweden and Denmark.89Laura Gozzi, “Nord Stream: Denmark Closes Investigation into Pipeline Blast,” BBC, February 26, 2024,
https://www.bbc.co.uk/news/world-europe-68401870.
Five months later, a Chinese fishing boat and a Chinese freighter severed the two pipelines connecting the Matsu Islands with Taiwan proper.90Elisabeth Braw, “China Is Practicing How to Sever Taiwan’s Internet,” Foreign Policy, February 21, 2023, https://foreignpolicy.com/2023/02/21/matsu-islands-internet-cables-china-taiwan/. In October 2023, two undersea cables and one pipeline in the Baltic Sea EEZs of Sweden, Finland, and Estonia were sabotaged; Finnish and Estonian investigators later identified the Chinese-owned, Hong Kong-flagged boxship Newnew Polar Bear as the likely perpetrator.91“National Bureau of Investigation Has Clarified Technically the Cause of Gas Pipeline Damage,” Polisen, October 24, 2023, https://poliisi.fi/sv/-/centralkriminalpolisen-har-tekniskt-klarlagt-vad-gasrorets-skada-orsakats-av?languageId=en_US; Elisabeth Braw, “Finland Identifies Pipeline Sabotage Ship,” AEIdeas, American Enterprise Institute, October 25, 2023, https://www.aei.org/foreign-and-defense-policy/finland-identifies-pipeline-sabotage-ship/

Then, in November 2024, two other undersea cables in the Baltic Sea—one connecting Sweden and Lithuania and one connecting Finland and Germany—were severely damaged within the course of twenty-four hours. Investigators quickly zeroed in on the Yi Peng 3, a Chinese-owned bulk carrier flagged and owned in China that had just left Russia’s Baltic port of Ust-Luga. After the ship sailed out of the Baltic Sea toward the Atlantic, Danish naval vessels followed it through the Danish Straits. After leaving the Great Belt, the Yi Peng 3 stopped just outside Denmark’s territorial waters, which gave Danish authorities far fewer rights to detain it and its crew than if it had halted within Danish territorial waters.92Johan Ahlander, “Danish Military Says It’s Staying Close to Chinese Ship After Data Cable Breaches,” Reuters, November 20, 2024, https://www.reuters.com/world/europe/kremlin-says-absurd-suggest-russia-involved-baltic-sea-cable-damage-2024-11-20/ “If you focus on the sabotage, you’re missing the picture,” Wang said. “The real objective for Russia is to show the China-Russian cohesion to the entire world. They didn’t even try to conceal the sabotage. What they did, however, was that the Yi Peng 3 stopped just outside territorial waters in order to expose our impotence.”93Interview with the author, November 22, 2024.

Harming undersea infrastructure violates Article 113 of UNCLOS, which stipulates that “[e]very State shall adopt the laws and regulations necessary to provide that the breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done willfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking or injury of a submarine pipeline or high-voltage power cable, shall be a punishable offence. This provision shall apply also to conduct calculated or likely to result in such breaking or injury.”94“United Nations Convention on the Law of the Sea,” Article 113.

Punishing those involved, however, has been difficult for the countries in whose waters these and similar incidents have occurred. In the case of the 2023 sabotage of the undersea cables and the pipeline in the Baltic Sea, the Newnew Polar Bear immediately left the scene, and China and Hong Kong SAR have not cooperated with the investigation despite their obligations under UNCLOS.95“Foreign Minister Meets with PRC Counterpart, Urges Newnew Polar Bear Cooperation,” ERR, September 27, 2024, https://news.err.ee/1609472497/foreign-minister-meets-with-prc-counterpart-urges-newnew-polar-bear-cooperation. In the case of Nord Stream, Swedish and Danish investigators have closed the cases after being unable to file criminal charges.96Gozzi, “Nord Stream.” This was hardly surprising, given coastal states’ limited law-enforcement powers in their EEZs, and it also illustrates the limitations of criminal justice when it comes to suspected maritime gray-zone aggression.

The UN Security Council has also been unable to reach a resolution on the matter. Sweden, Denmark, or both could file a case with the International Tribunal for the Law of the Sea—the body that typically adjudicates UNCLOS matters—against the country they suspect of instigating the sabotage. Given that China has set a precedent for ignoring the tribunal’s rulings, such a ruling would, however, be unlikely to have a significant effect.97“At Security Council Meeting on Sabotage of Nord Stream Pipeline, Many Speakers Condemn Attacks on Critical Infrastructure, Stress Need for Accountability,” United Nations, press release, October 4, 2024, https://press.un.org/en/2024/sc15844.doc.htm.

Although (and because) it’s often impossible to prove state involvement, sea-based infrastructure remains highly vulnerable to state-linked harm. While Taiwan did not identify Chinese state involvement in the severing of the two cables connecting the Matsu Islands with Taiwan proper, the fact that the cables were severed rendered the islands disconnected from the rest of the world. The post-Cold War world’s expansion of sea-based infrastructure, especially the internet communications cables that power modern economies, has been based on the assumption that nations and companies will abide by maritime rules. This is no longer the case, and the current expansion of offshore windfarms creates another large category of sea-based infrastructure that will be vulnerable to harm.

Although NATO launched a Critical Undersea Infrastructure Network in May 2024, it’s unclear what the network can do apart from monitoring threats to this infrastructure.98“NATO Holds First Meeting of Critical Undersea Infrastructure Network,” NATO, May 23, 2024, https://www.nato.int/cps/en/natohq/news_225582.htm The same is true for governments, which can monitor sea-based infrastructure in their territorial waters and EEZs but would be hard pressed to find a suitable response if they detected sabotage in progress. They could arrest perpetrators in their territorial waters, but this would be difficult in an EEZ and virtually impossible on the high seas. A military or other forceful response to sabotage would be escalatory and, therefore, highly unlikely. For their part, the owners and operators of sea-based infrastructure have increased monitoring of their installations but don’t have the legal power to punish saboteurs, though they can alert authorities to suspicious behavior.

Illegal fishing

Illegal, unreported, and unregulated fishing (IUUF) has taken place for decades. Such fishing is a violation of national laws, international treaties, and UNCLOS’s Article 61, which stipulates that “[s]uch measures shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities.”99“United Nations Convention on the Law of the Sea,” Article 61.

China engages in such fishing on a larger scale than any other country through its distant-water fishing fleet. The fleet, which is not government owned but whose activities are tolerated or even encouraged by the Chinese government, is estimated to encompass nearly seventeen thousand vessels.100Miren Gutiérrez, et al., “China’s Distantwater Fishing Fleet Scale, Impact and Governance,” Overseas Development Institute, June 2020, 8, https://odi.cdn.ngo/media/documents/chinesedistantwaterfishing_web.pdf. The vast majority of these vessels fish outside Chinese waters, especially in low-income countries’ territorial waters. Fishing in other countries’ territorial waters does not in itself violate international maritime rules, but IUUF does. A small but significant number of the Chinese distant-water fishing fleet—eighty-three vessels, according to a comprehensive study published in 2018—engages in IUU. That’s more than twice as many vessels as those coming from the second-worst offender, Fiji, which was found to have forty vessels engaged in the practice.101Ibid., 27. The other offenders among the top five—Senegal, Panama, and Kiribati—had thirteen, eight, and eight vessels, respectively, engaged in the practice.

IUUF is a considerable concern for the affected coastal states because it doesn’t just involve the fishing itself. “It’s a web of criminal activity,” said Captain Matthew Michaelis of the US Coast Guard, who serves as division chief at US Africa Command’s Counternarcotics and Transnational Threats Program. “It may involve forced labor on these fishing vessels, and the methods of payment may go into other illicit means and cross multiple countries.”102Interview with the author, November 26, 2024.

Challenging UNCLOS

Ordinarily, disputing the validity of a treaty or a piece of legislation would not count as a violation of it. However, in addition to violating UNCLOS and ignoring an UNCLOS tribunal’s ruling against it, China regularly disputes the validity of the convention itself. In 2022, for example, Foreign Minister Wang Yi explained that “it is important to stay open-minded and move forward. UNCLOS is not isolated or insulated, but rather inclusive and adjustable. It should keep pace with the times to better adapt to international maritime practices.” The world should, Foreign Minister Wang said, “join hands to usher in a new journey of maritime governance.”103“Wang Yi Attends ‘UNCLOS at 40: Retrospect and Prospect,’” Embassy of the People’s Republic of China in Great Britain and Northern Ireland, September 2, 2022, http://gb.china-embassy.gov.cn/eng/zgyw/202209/t20220904_10761900.htm. China is not the only country to have publicly challenged the purpose of treaties it has signed. For example, the United States left the Anti-Ballistic Missile Treaty with Russia (previously the Soviet Union) during the George W. Bush administration and left the Joint Comprehensive Plan of Action (commonly known as the Iran Nuclear Deal) during the Donald Trump administration.104“The Anti-Ballistic Missile (ABM) Treaty at a Glance,” Arms Control Association, last updated December 2020, https://www.armscontrol.org/factsheets/anti-ballistic-missile-abm-treaty-glance; Kali Robinson, “What Is the Iran Nuclear Deal?” Council on Foreign Relations, last updated October 27, 2023, https://www.cfr.org/backgrounder/what-iran-nuclear-deal.

Compliance with maritime rules

The global maritime order has never enjoyed complete compliance from all the nations of the world, and complete compliance is unlikely.

Nations’ differing approaches to maritime rules and regulations begin with their differing interpretations of the treaties and agreements that constitute the maritime order. One issue on which countries’ interpretations differ concerns naval vessels’ right of innocent passage. Referring to countries in and around the South China Sea, Strating notes that “across the region, states—even like-minded states—have different interpretations of the activities that international law permits, including the rights of warships to innocent passage or to conduct military activities such as surveys.”105Strating, “Defending the Maritime Rules-Based Order,” 9. For example, some countries differentiate between innocent passage for commercial vessels and naval ships, while others—including the United States—argue that all categories of ships have the right of innocent passage. Some nations—including China and South Korea—demand that naval vessels provide notification before any journeys through their waters and require such vessels to await permission before transiting. (China insists on notification by foreign military vessels in its own waters, but typically does not notify other countries when its own military vessels sail through their waters.106Ibid., 17.) Other nations—including the United States—maintain that innocent passage is truly innocent and should not be curtailed by demands for notification. China’s unilateral declaration of the nine-dash line turns high seas and other countries’ EEZs into a Chinese EEZ, while China’s insistence that Taiwan is part of China gives Beijing significant rights over the Taiwan Strait.

Differing interpretations are the reason why the United States conducts freedom of navigation operations (FONOPs) through both waters that are indisputably at risk of blockade or other hostile action and those of friendly nations. In 2023, the United States conducted FONOPs through the waters of fellow NATO member states Croatia and Latvia to signal opposition to these countries’ demands for notification prior to passage. It conducted FONOPs in Taiwanese waters for the same reason, and conducted FONOPs in Japanese waters to highlight that Japan’s use of baselines does not conform with UNCLOs. Further FONOPs took place in the waters of Cambodia, Colombia, China, the Dominican Republic, Iran, the Maldives, Malta, Oman, Russia, Thailand, the United Arab Emirates (UAE), Vietnam, and Yemen.107“Report to Congress: Annual Freedom of Navigation Report, Fiscal Year 2023,” US Department of Defense, 2023, https://policy.defense.gov/Portals/11/Documents/FON/DoD%20FON%20Report%20for%20FY23%20(Corrected).pdf. This laudable and resource-intensive effort in support of the global maritime order is, however, undercut by the fact that, while it adheres to the convention’s obligations, the United States itself has not signed UNCLOS.

“UNCLOS does not explicitly address which, if any, military activities are permissible within coastal states’ EEZs and which ‘high sea freedoms’ may be exercised in EEZs,” Strating notes. “Under Article 87, UNCLOS provides that high sea freedoms ‘shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.’”108Strating, “Defending the Maritime Rules-Based Order,” 17. Most countries take this wording to mean that only peaceful exercises may be conducted in other countries’ EEZs, and many request permission to conduct such exercises. UNCLOS, however, does not expressly ban naval exercises in EEZs.

Russia has exploited this legal ambiguity by, inter alia, holding naval exercises in the EEZs of Ireland and Norway. In January 2022, the Russian government informed the government of Ireland that it intended to hold a naval exercise in Ireland’s EEZ off the country’s southern coast, an area traversed by most undersea communications cables connecting northern Europe and the US east coast. Although Dublin declared the exercise “not welcome and not wanted,” Russia proceeded with its plans.109Molly Killeen, “Irish Fishing Industry Meets Russian Ambassador over Planned Naval Exercises,” Euractiv, January 28, 2022, https://www.euractiv.com/section/politics/short_news/irish-fishing-industry-meets-russian-ambassador-over-planned-naval-exercises/. It only called off the exercise after Irish fishermen announced they would stage the fishing equivalent of a sit-in, swarming the waters with their fishing boats and preventing the Russian Navy from conducting the exercise.110Elisabeth Braw, “How Irish Fishermen Took on the Russian Fleet and Won,” Defense One, January 31, 2022, https://www.defenseone.com/ideas/2022/01/how-irish-fishermen-took-russian-fleet-and-won/361377. In August 2023, Russia similarly informed Norway that it would hold a major naval exercise in Norway’s EEZ in the Arctic Barents Sea.111Eskil Johansen, “Norske Fiskefartøy Trosser Russiske Missiltester: Vi Blir Værende,” NRK, August 12, 2024, https://www.nrk.no/tromsogfinnmark/norske-fiskefartoy-trosser-nordflaten-_-nekter-a-flytte-ut-av-missil-testomrader-1.16514160. This time, too, local fishermen announced they would remain in the waters to contest the exercise. In both cases, however, Russian military vessels had the right to be in the waters under UNCLOS, and the convention is unclear regarding the nature of military activities that are acceptable in another country’s waters.

Nor has compliance ever been perfect. China has conducted nine-dash-line activities since the 1940s and, as Wang observed, “the Cuban missile crisis is a very visible example of how you can interpret the law of the sea to your benefit in order to blockade, in this case, Russian armaments bound for Cuba.”112Interview with the author, November 1, 2024.

Indeed, the officials and leaders who negotiated and signed UNCLOS and other maritime treaties and agreements were not so naïve as to believe the agreements were perfect. “UNCLOS is simply the least bad compromise available, and it has allowed a huge number of nations to benefit from some degree of maritime order,” Wang noted. “With UNCLOS, you have the advantage that it is generally accepted. But UNCLOS does not take care of all eventualities and some of the ambiguities that might be in the convention can then be interpreted and pushed to your own advantage.”113Ibid.

Implications of systematic and state-linked violations of the global maritime order

Although the global maritime order has never been perfect, the intensity of rule violations has increased and has now reached an alarming level. Potts noted the following.

  • Wherever you look at the world, we’re seeing problems in the maritime domain. It starts in the Red Sea where we now see proxies armed with complex weapons and supported by states. It’s absolutely threatening, and it’s taking place in one of the world’s great trading routes. In the South China Sea we’re seeing China, a signatory of the UN Convention of Laws of the Sea, asserting territorial claims, expanding what they consider they can claim by artificial fabrication, challenging all those innocent-passage rights. And then we start to see other things coming up, like Russia and China cooperating launching patrols in the High North. It feels as though that fundamental freedom that enables global trade is under more pressure today than it has been since the end of the Second World War.114Interview with the author, November 3, 2024.

Ringbakken also noted the challenge of countries violating the maritime order.

  • It’s not just an issue of those directly breaking the rules; it’s also an issue of the governments that engage with those breaking the rules. If, for example, the governments where shadow vessels load or discharge their cargo wanted to do something about it, they certainly have the international framework of regulation to do so [by refusing to let the vessels dock], but they don’t. That’s because it’s probably both politically and economically advantageous for them not to. They have a double incentive. Certainly for some of the states that are receiving the cargo it’s economically beneficial to do it that way. But I think it’s also deeper than that. These violations are also part of a wider challenge to the international maritime regime.115Interview with the author, November 18, 2024.

Because the global maritime order relies on its participants voluntarily following the rules, the fact that key participants now openly violate them makes further deterioration likely, or even inevitable. This is beginning to create a split in the global maritime order. On one side are the countries that adhere to virtually all the obligations laid down in treaties, rules, and conventions; on the other side are countries that openly violate one or more of these rules and even challenge the validity of the rules altogether. “The balance of power and influence is undoubtedly changing in the world,” Potts observed. “Those building blocks that we have taken as a given for the last fifty years are definitely at the point of being challenged. And for a lot of people, it has thrown the light on how important the high seas are.”116Interview with the author, November 3, 2024. Simon Lockwood, head of shipowners at Willis Towers Watson, noted, “We’ve almost got a bifurcated model now: there are those countries that sit within the norm, and then we have the creation of a parallel system—the shadow system, the dark system.”117Interview with the author, November 1, 2024.

One often-floated potential measure dramatically illustrates the dilemma facing nations committed to the maritime order. A blanket ban on suspected shadow vessels in Western waters would violate vessels’ right of innocent passage and would give the impression that Western countries only adhere to the maritime rules that suit them.

Indeed, the state of the global maritime system is a harbinger of the state of the rules-based international order, and its deterioration is taking place at a time when the oceans are becoming even more important. “I don’t think it’s the case that China doesn’t want a rule-based world,” Markussen noted. “They just want to write the rules themselves. The global maritime order is definitely under pressure. I can’t see where it will end, but challenging the global maritime order seems to part of a bigger strategy.”118Ibid.

Referring to the impact of rules violations on the shipping industry, Falkenberg Ollestad said the following.

  • Accidents caused by rules violations are the short-term perspective. All of this is happening as the shipping industry is trying to execute a big green transition. Owners are making huge investments in a whole new technology. And if the green transition is to be successful, we need to commit by common rules or else there’s going to be a loophole for some to continue to use fuels that harm the environment but are much less expensive. We need to have a pricing mechanism decided at the IMO. But if not everybody abides by what’s decided at the IMO, we’re going to see two different playing fields. That will also ultimately make it more difficult to green the industry, which desperately needs to become greener. The whole industry is based on common international rules and orders.119Interview with the author, November 13, 2024.

Commenting on the shadow fleet, she added, “The structural problems created by rules violations are what we’re seeing when 25 percent of the tanker fleet has left adequate insurance schemes.”120Interview with the author, November 12, 2024.

This increasing divide will affect not just rule-abiding shipping lines but the entire maritime sector. “It will create a two-tier market where the compliant companies are attracting costs,” Ringbakken observed. “It’s never free to comply with rules and regulations, and compliant companies are now attracting compliance costs that some of these other actors don’t have. And when you have a two-tier market, it’s going to be less effective.”121Interview with the author, November 18, 2024. He added, “Commercially, it means that some of the cargoes, let’s say in the liquid oil trades, will no longer be available [because they are being shipped by noncompliant, lower-cost companies]. This reduces the volume of cargoes that is available to compliant companies and increases, of course, the volume of cargo available to the dark fleet and other noncompliant actors.”122Ibid.

Roberts made similar observations.

  • Seaborne trade is critical, it is vulnerable, and it depends on peace. If you don’t have peace, it cannot function as it has been functioning, and if it doesn’t function as it has, then there will be an increased cost of some kind. Over time, supply chains have been honed to maximum efficiency. Shipping is incredibly efficient and there are obviously economic anomalies where you transport prawns from South America to Europe and back, which is just pointless, but that’s been allowed because it’s so efficient. If that efficiency is impaired, then perhaps some things won’t happen anymore.123Interview with the author, November 1, 2024.

He continued.

  • Ships navigate from one port to another and deliver the goods and then carry on. They are independent of foreign policy. But if they can’t count on peace in the waters, they have to go another way. And the question is what happens if their alternative way is also blocked. There’d be big delays, more delays, more cost. If it becomes impossible to do trans-oceanic trade, then the world will look very different very quickly because countries depend on this trade, and they don’t have the resources in their own countries for most of the goods being transported by sea.124Interview with the author, November 1, 2024.

In addition to the economic impact, such bifurcation will also have an impact on safety beyond the harms already being caused by the shadow fleet. “Almost all the rules that govern maritime activities are experience based; they are safety rules,” Ringbakken said. “If you have a large portion of the global merchant fleet not operating to the standards that have been developed over the years based on experiences from previous accidents, they will be more prone to accidents. Incidents risk going uncompensated or having to be compensated by those that adhere to the regimes, namely the compliant countries and companies. That threatens the viability of the rules-based maritime system in the longer term.”125Interview with the author, November 18, 2024.

Indeed, the rule violations are likely to cause a split in the painstakingly built global maritime order, with one side represented by countries and companies complying with virtually all rules and the other side by countries and companies that frequently violate them. “There’s been a massive growth in undersea communications cables over the last few years,” Potts noted. “If we start looking at minerals, especially the rare-earth minerals that are essential for a transition to an electric economy, China has already secured almost exclusive access to many of those, but the main reserves on land are insufficient and the reserves that are known about are in the high seas. At a time when the world needs a consensus about what we do with 70 percent of the Earth’s surface, it seems that the world is fracturing into blocs that are going to be in competition for this space.”126Interview with the author, November 3, 2024.

The US military, especially the US Navy, remains the default protector of the global maritime order. But even under normal circumstances, the US Navy is already stretched. “The US Navy is emphatically not big enough to combat all these rules violations. Never has been, never will be,” noted retired Vice Admiral Andrew Lewis, a former commander of the US Second Fleet and the NATO Joint Force Command for the Atlantic.127Interview with the author, November 18, 2024. Indeed, some of the rule violations, such as the Houthis’ campaign against Western shipping, seem designed to tie down the US Navy. That, of course, limits its ability to provide constabulary duties in other parts of the world. “All the resources we use to protect shipping in the Red Sea are in effect used to protect Russian and Chinese merchant vessels there, because most Western-linked merchant vessels are rerouting to the Cape of Good Hope,” Markussen noted. “That means that we use American warships to protect Chinese shipping in the Black Sea.”128Interview with the author, November 1, 2024.

Commenting on the shipping sector, Falkenberg Ollestad added, “We’re seeing increased polarization within an industry that is so reliant on global unity, and it’s only the beginning. This polarization seems likely to continue to increase because it has become apparent to some that it’s in their interest and that it can create new markets and opportunities.”

Another challenge facing countries and companies wanting to uphold the maritime order is that they have few tools with which to enforce the rules under the current set of rules, treaties, and conventions. Falkenberg Ollestad noted the following.

  • Those violating the rules are outside of the jurisdiction of the ones wanting to fix the system. We have freedom of navigation and the right of innocent passage. When it comes to the shadow fleet, this is a real dilemma. The West has helped create the shadow fleet by imposing the oil price cap, and you can’t curtail the shadow fleet by undermining UNCLOS [by preventing all suspected shadow vessels from traversing Western EEZs], because then you’re just doing the same as them: violate maritime rules. We have to find solutions in a different way, and that’s where we are now.129Interview with the author, November 13, 2024.

That is, indeed, where the world is now. The freedom of the seas, toward which the world’s nations (and companies) had been making progress for generations, is at risk of dangerous deterioration. The following section outlines measures countries committed to the global maritime order can take to shore up the system.

Potential measures to strengthen the global maritime order

Expanded freedom-of-navigation operations

Freedom-of-navigation operations have long been a pillar of constabulary efforts in support of the global maritime order, with the US Navy as the lead practitioner. The US Freedom of Navigation Program, of which FONOPs are just one part, is “a US-specific program with legal, diplomatic, and operational stages that challenge different types of excessive maritime claims and demonstrate a commitment to protecting its maritime freedoms” and “targets excessive maritime claims from allies and foes alike and includes the use of bilateral diplomacy, diplomatic protests, and operational assertions known as FONOPs.” The program contests “restrictions on innocent passage that do not accord with UNCLOS; impermissible EEZ and airspace use limitations; improperly drawn baselines or archipelagic claims; and excessive historic waters claims.”130Starting, “Defending the Maritime Rules-Based Order,” 24. The United Kingdom’s Royal Navy also conducts FONOPs, though they are fewer in number and typically only challenge rival states. In 2020, for example, it conducted a FONOP in the Barents Sea, and it has long conducted FONOPs in the Red Sea.131“UK and Allies Uphold Freedom of Navigation above Arctic Circle,” Royal Navy, September 7, 2020, https://www.royalnavy.mod.uk/news/2020/september/07/200907-sutherland-north-atlantic. “All Government ships, including naval ships, enjoy the right of innocent passage in the territorial sea and freedom of navigation in the contiguous zone and the exclusive economic zone under UNCLOS,” Minister for Asia Nigel Adams told the UK Parliament in March 2020. “As part of the Royal Navy’s persistent presence in the region, five ships have transited the South China sea since April 2018, most recently HMS Enterprise in February.”132“South China Sea: Freedom of Navigation, Volume 679: Debated on Thursday 3 September 2020,” UK Parliament Hansard, September 3, 2020, https://hansard.parliament.uk/commons/2020-09-03/debates/99D50BD9-8C8A-4835-9C70-6E9A38585BC4/SouthChinaSeaFreedomOfNavigation.

In September 2024, the German Navy performed a rare freedom-of-navigation journey when two of its ships—the frigate Baden-Württemberg and a supply ship—sailed through the Taiwan Strait on a journey from South Korea to the Philippines. “International waters are international waters, it is the shortest route, it is the safest route given the weather conditions, and it is international waters, so we are going through,” explained Boris Pistorius, Germany’s defense minister.133Sven Lemkemeyer, “China Sieht ‘Falsche Signale’: Deutsche Marine Passiert Erstmals Seit 22 Jahren die Taiwanstraße,” Tagesspiegel, September 13, 2024, https://www.tagesspiegel.de/politik/es-sind-internationale-gewasser-pistorius-bestatigt-passage-von-taiwanstrasse-durch-deutsche-marine-12367745.html. In accordance with the right of innocent passage, Germany also did not provide the Chinese government with prior notification. (Beijing, which considers the entire Taiwan Strait to be Chinese waters, and which demands notification prior to any passages by foreign military vessels, took umbrage.) A few weeks later, a Canadian frigate also sailed through the Taiwan Strait together with a US Navy ship. A few days after that, a French frigate made the same journey.134Jonathan Chin, “French Navy Sails Frigate through Taiwan Strait,” Taipei Times, October 30, 2024,
https://www.taipeitimes.com/News/taiwan/archives/2024/10/30/2003826102.

Germany publicized its journey, explicitly making the case for freedom of navigation.

These freedom-of-navigation journeys, including by countries that were until recently reluctant to irritate Beijing, send an unmistakable signal that Western countries are willing to support the global maritime order. Western countries and other partners could expand such navigations, including through journeys involving more than one country. This would allow smaller countries, and countries with smaller navies, to participate, and the signal could be amplified through public messaging about the journeys. Freedom-of-navigation journeys would also allow Western countries to team up with countries outside the Western family of nations in support of the global maritime order. This is in the interest of many countries, such as Vietnam, that otherwise disagree with the West on numerous policy issues.

Further involvement by navies and other armed services

Enforcement of UNCLOS’s rules governing territorial waters and EEZs are typically the responsibility of coast guards, except in cases involving naval assaults. Yet with maritime rule violations becoming a tool with which some states stake out geopolitical claims, undermine the global maritime order, or both, countries committed to the protection of the global maritime order could consider using their navies collectively and in functions beyond freedom-of-navigations operations.

Doing so as a matter of policy would signal that these countries are willing to enforce the global maritime order. It would be the maritime equivalent of beat cops or neighborhood watch patrols. Like freedom-of-navigation operations, such tasks would also allow Western countries—the default protectors of the rules-based international system—to team up with non-Western countries committed to protecting the global maritime order. These countries could include a range of countries in different regions, from the UAE to Indonesia.

Some countries, which could range from Finland and Denmark to Malaysia, would have an interest in participating in “neighborhood patrols” to discourage shadow vessels. (Of course, under UNCLOS it is impossible to ban all suspected shadow vessels.) Other countries, primarily those in the South China Sea, would likely be interested in neighborhood patrols there. Like freedom-of-navigation operations, maritime neighborhood patrols would allow the United States and other Western nations to cooperate with countries that are not part of the Western camp and that disagree with many Western policy positions, but which are committed to the global maritime order. This commitment would not always be ideological. In most cases, it would likely be based on enlightened self-interest: the majority of the world’s countries, and nearly all smaller and coastal states, depend on a functioning maritime order for imports, exports, or both, as well as for the safety of their seafarers. (The world has some 1.9 million seafarers, most of whom are nationals of developing and emerging countries.135“Seafarer Supply, Quinquennial, 2015 and 2021,” United Nations Trade and Development, last updated 18 July 2023, https://unctadstat.unctad.org/datacentre/dataviewer/US.Seafarers) Indeed, the protection of maritime rules could allow regional neighbors that otherwise rarely collaborate in a systematic fashion to join forces. Vietnam, the Philippines, Malaysia, Indonesia, and Singapore have the potential to form a strong group.

Naval force-structure innovation

In 2005, then Chief of US Naval Operations Mike Mullen introduced a bold idea: a “thousand-ship navy.” As Dan Uhls notes, this force would not be a fleet exclusively serving US interests, “but rather a global maritime security arrangement, designed to synergize the collective maritime capabilities of our allies to further security in the maritime domain. Admiral Mullen’s initiative was born partly out of the globalization driven need ensure free, and unfettered access to the global commons by legitimate merchant traffic, and the realities of an ever shrinking American fleet’s inability to conduct global sea-control unilaterally.”136Dan Uhls, “Realizing The 1000-Ship Navy,” Naval War College, 2006, 2, https://apps.dtic.mil/sti/pdfs/ADA463750.pdf. Though little came out of the idea at the time, the thousand-ship navy remains a desirable arrangement, especially in light of the world’s growing geopolitical tensions. It’s a rare opportunity for the US Navy and other Western navies to collaborate with countries that are not part of the Western family of nations, as described below in the section on further involvement by navies and other armed services. “The goal of the thousand-ship navy was to be able to operate with a unified intent of keeping the maritime commons free and open for trade, which is ultimately what we have navies for,” Lewis noted.137Interview with the author, November 18, 2024.

The potential combined fleet would, of course, need a command-and-control structure for its designated duties. It would also need the right combination of vessels, which would involve a great degree of collaborative planning, and even acquisition, among participating countries. Lewis explained the logistics.

  • We would need a combination of types of ships. There’s a way to leverage artificial intelligence and autonomous vessels to expand the global fleet. But that’s only one aspect of it. You have to have small combatants. You have to have medium-sized combatants and large combatants and depending upon where you’re operating, how far you are from land. We would need to include aviation assets and space assets to support such a fleet, and we’d also need vessels of different propulsion where you can stay at sea for long periods of time, i.e., nuclear powered or ones that have capabilities with battery power and so on, where we can keep the fleet at sea longer for longer periods of time.138Interview with the author, November 18, 2024.

But simply having one thousand vessels dedicated to the protection of the global maritime order will in no way guarantee maritime order, as Lewis noted.

  • Patrolling the oceans involves vast areas, and the oceans also get busier all the time, especially at choke points and in critical areas and where there’s friction, whether it be in the South China Sea and First Island Chain, Second Island Chain, or in the Atlantic and the Strait of Gibraltar and the Mediterranean down into the Middle East or up into the Arctic and in the Barents. There are all sorts of choke points and vital areas that need to be patrolled regularly to maintain that order. And the globe is a big place. If you’re operating in the Pacific, it’s vast, and there are not many countries around there. Even the Atlantic is vast. And even a thousand ships, is it big enough to have what I would call a man on man-type force? Not really. It’s difficult to be everywhere, even with a vast naval capability.139Ibid.

Indeed, the threats to the global maritime order may have reached such an extent that no amount of multilateral innovation will create a naval force large and powerful enough to dependably protect the maritime order.

Collaboration with the private sector

Governments and companies active in different parts of the maritime domain, including as part of NATO’s Critical Undersea Infrastructure Network, informally exchange information on an unclassified basis. Requirements around fair competition and security clearance make it difficult for Western governments to maintain a formal information-exchange system with private-sector executives and companies, but more governments could invite private-sector representatives to informal conversations. This would be a mutually beneficial arrangement, as many companies in the maritime domain maintain highly sophisticated monitoring of maritime activities and can alert governments to anomalies.

In the first instance, governments would do well to create such informal information-exchange channels with the shipping and maritime insurance sectors. The exchange that already takes place among certain officials and executives has proven useful for both sides. Governments and companies should also consider collaboration with the space-based imagery sector. Space-based imagery is essential to many crucial activities, and such imagery is especially useful in areas—such as oceans—that neither navies nor commercial fleets can fully cover. Cooperation with space-imagery firms would naturally need to be based on contracts rather than informal conversations. But with such collaboration in place, those involved could also provide the respective other side with occasional and informal updates.

AFRICOM’s maritime collaboration with African coastal states

As a unified combatant command, the United States Africa Command (AFRICOM) covers far more than maritime issues. But because the African continent has a vast coastline with thirty-eight littoral states, maritime-order cooperation with these states is an AFRICOM priority. Ambassador Robert Scott, deputy to the commander for civil-military engagement, noted that “a lot of the countries have a lot of interest in issues such as IUUF and maritime domain awareness securing their natural resources, whether they’ve got current existing gas or oil strikes out there, or they’re anticipating gas or oil strikes. So there’s a lot of interest in talking to us about what we can provide to assist them in their goals. On IUUF, we do a lot of work through exercises and capacity building. We provide small boats and training for troops to be able to board ships.”140Interview with the author, November 26, 2024.

It’s a multi-US agency effort led by AFRICOM, involving a total of twenty-one agencies ranging from the US armed forces to the US Agency for International Development (USAID), and it involves African countries including Kenya on the east coast and Senegal on the west coast. Components include both maritime and land-based exercises—for example, moot courts that allow judges and other court staff to exercise maritime violation cases. US Naval Forces Africa (NAVAF) and USAID have also teamed up to provide some navies in the region with SeaVision, a maritime situational-awareness tool.141“SeaVision,” US Department of Trade, last visited December 6, 2024, https://info.seavision.volpe.dot.gov/#overview. Having such situational awareness, Scott said, is essential for these countries, whose navies are often small and function more like coast guards. “How do I analyze what is happening in my waters? And how do I determine when I should go out and expend my scarce resources to do something about it? Having this additional information may let you know we need to go check out this boat, or you may need to go check out this area because something’s happening there.”142Interview with the author, November 26, 2024.

He added, “That’s something we’re incorporating more and more into our exercises. How do you board a ship? If a trawler is brought in, how do they arrest the crew? How do they take that to their judiciary? And how does the judiciary evaluate its own laws in order to come up with the correct penalties? What we’re trying to do is work with our partners so that they can go after those who are paying no attention to their sovereignty and resources.”143Interview with the author, November 26, 2024.

AFRICOM’s collaboration with African coastal states demonstrates the potential for Western maritime collaboration with countries that don’t belong to the immediate Western community of nations but want to protect the maritime order in their own waters and beyond.

Updating the definition of war

Article 51 of the United Nations Charter states that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”144“Charter of the United Nations,” United Nations, last visited December 6, 2024, https://legal.un.org/repertory/art51.shtml. NATO’s Article 5, in turn, states that “[t]he Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all.”145“The North Atlantic Treaty,” NATO, last visited December 6, 2024, https://www.nato.int/cps/en/natohq/official_texts_17120.htm.

With gray-zone aggression increasing, including in the maritime domain, treaties’ lack of definition for what constitutes an armed attack presents a loophole for gray-zone aggression to continue with impunity. In the same vein, international humanitarian law—often called the law of war—only defines armed military violence as acts of war, and only military combatants as perpetrators of acts of war. This strict divide, too, provides loopholes for acts of gray-zone aggression.

It is extremely unlikely that the member states of the United Nations would be able to agree on a definition in the near future, but NATO could strive for such clarification. Individual countries that are not members of NATO could do the same. A definition of armed attack more expansive than the traditionally understood kinetic attack by another country’s armed forces would, however, force the targeted country to respond with force, which would bring the risk of escalation.

Conclusion

Compliance with global maritime rules has never been perfect, but rules violations are increasing quickly. The violators include different countries and proxies, and the rules they violate cover a wide range, from China’s construction of artificial islands and harassment of civilian vessels (which violates UNCLOS) to the Russian-led shadow fleet (which violates rules regarding safe shipping) to the Houthis’ campaign against Western-linked shipping (which violates UNCLOS’s fundamental right of innocent passage).

Past violations, primarily piracy, were manageable because the perpetrators faced the community of nations, which teamed up to protect the maritime order. Today, however, the perpetrators include two of the world’s most important governments, those of Russia and China. They violate maritime rules for what appear to be dual reasons: for economic advantage and to communicate their opposition to the global maritime order as it has been built over generations, especially since World War II. Because Russia and China consider this order a Western-led construct, they appear determined to undermine it. Indeed, China has said it supports the scrapping of UNCLOS and its replacement with a new constitution of the oceans.

This reality presents enormous challenges to the freedom of the seas. If the Western-based shipping industry can’t count on innocent passage—and if officially sailing vessels face the risk of colliding with ghost vessels and being attacked for geopolitical reasons—shipping lines and insurers will no longer be able or willing to operate in certain part of the world. The same is true for owners and operators of sea-based infrastructure, while China’s enforcement of its unilaterally declared maritime borders makes these waters unsafe for the countries to which the waters officially belong. The freedom of the seas is at risk of fatal deterioration—that is, of the freedom only being applicable to part of the world’s oceans.

The Atlantic Council is grateful to the Smith Richardson Foundation for its support of this report.

About the author

Elisabeth Braw is a senior fellow at the Atlantic Council’s Transatlantic Security Initiative, focusing on geopolitics and the globalized economy as well as gray-zone and hybrid threats. She’s also a columnist with Foreign Policy and Politico Europe and the author of the award-winning Goodbye Globalization: The Return of a Divided World (Yale University Press, 2024) and the upcoming Undersea War (2026). At the Atlantic Council, Elisabeth leads the Threats to the Global Maritime Order initiative. She was previously a senior research fellow at the Royal United Services Institute (RUSI) in London. She’s the author of God’s Spies, about the Stasi’s church division (2019), and The Defender’s Dilemma: Identifying and Deterring Gray-Zone Aggression (2022). Elisabeth is a member of the UK National Preparedness Commission and a member of the Krach Institute for Tech Diplomacy’s advisory council. Before joining academia, she worked in the private sector following a career as a journalist. She is a regular op-ed contributor to the Financial Times, The Wall Street Journal, and The Times (of London).

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About the program

The Transatlantic Security Initiative, in the Scowcroft Center for Strategy and Security, shapes and influences the debate on the greatest security challenges facing the North Atlantic Alliance and its key partners.

Image: A view shows cargo vessels in Nakhodka Bay near the port city of Nakhodka, Russia, December 4, 2022. REUTERS/Tatiana Meel