Volume 46, Number 1, Winter 2005 The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea † Michael A. Becker * I. Introduction The oceans of the world at once separate and connect us. As much as the sea provides a formidable natural barrier between the continents, it also pro- vides a means of contact and communication, a navigable expanse and plen- tiful resource that has long been exploited for both individual and collective gain. 1 Over the course of history, powerful maritime states have played the primary role in shaping the public order of the oceans. Although state prac- tice continues to play a dramatic role, the twentieth century also witnessed prolonged and repeated efforts to codify that practice into a veritable treaty- based Law of the Sea. 2 In 1967—between one international effort at codiªcation and another— Malta’s Ambassador to the United Nations, Arvid Pardo, famously urged the U.N. General Assembly to take “immediate action to prevent the breakdown of law and order on the oceans” in the face of growing concern that exactly such a breakdown was imminent. 3 On December 10, 1982, the United Na- tions Convention on the Law of the Sea (“UNCLOS”), the product of decade- long negotiations, was opened for signature at Montego Bay, Jamaica. 4 Hav- † An earlier version of this Article was awarded the Ambrose Gherini Prize in the ªeld of interna- tional law or conºict of laws at Yale Law School. * J.D., Yale Law School, 2004; B.A., Amherst College, 1999. I am grateful to Professor W. Michael Reisman for his support of this research. Thanks also go to Jason File, Sinéad O’Gorman, and Jeremy Rossman for their helpful suggestions, and especially to Alan Becker for his comments on an earlier draft. All opin- ions, omissions, and errors are my own. 1. Professors McDougal and Burke describe this distinctive characteristic of the oceans as “the spatial- extension resource, principally useful as a domain for movement . . . .” Myres S. McDougal & William T. Burke, The Public Order of the Oceans—A Contemporary International Law of the Sea, at vii (1962). 2. For an overview of the efforts at codiªcation leading up to and including the Third United Nations Conference on the Law of the Sea (UNCLOS III), see 1 D. P. O’Connell, The International Law of the Sea 20–28 (1982). 3. U.N. Div. for Ocean Affairs And The Law of The Sea, Oceans: The Source of Life— United Nations Convention on the Law of the Sea—20th Anniversary 9 (2002), available at http://www.un.org/Depts/los/convention_agreements/convention_20years/oceanssourceoºife.pdf (last visited Nov. 17, 2004) [hereinafter Oceans: The Source of Life]. 4. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397