France and Britain: Opposing traditions of the law of the sea

Every year since 1895, the Proms, the famous British summer concert series, has concluded with the anthem ‘Britannia Rule the Waves’ played by the BBC Philharmonic Orchestra and sung by boisterous crowds in Hyde Park and the Royal Albert Hall. The Royal Navy still occupies a central position in the life of many Britons.

Some 100 kilometres further south in France, maritime power too remains of acute interest, particularly to those who deplore the ‘sea blindness’ of their fellow countrymen. For centuries, France and the United Kingdom (UK) have had different perspectives on land and sea; international maritime law is structured by the opposition between a ‘peasant’ desire for appropriation and the imperative of ‘merchant’ liberalisation, bringing with it antagonistic strategic approaches.

Yet, from the second half of the 20th century onwards, the foundations of this opposition began to erode as both became net-importers subject to the same geostrategic threats and challenges, and as the United States grew in strength to become the world’s preeminent naval power. But what remains true today of these opposing strategic cultures, and what lessons can be drawn to strengthen Britain and France’s maritime policies of tomorrow?

‘Peasants of the sea’ versus ‘merchants of the ocean’

On 21st July 1997, the British Parliament announced its intention to accede to the United Nations Convention on the Law of the Sea (UNCLOS), known as the ‘Montego-Bay Convention’. The UK thus became, 15 years after the conclusion of the Convention in 1982 and not without controversy, its 119th State Party.

This did not come easy. Some might find it strange that the ‘mother of all maritime powers’ found it difficult to validate the greatest maritime legal text in history. But this would be to forget that the British, or at least, the English, favoured what would later be called ‘territorialisation’ of the sea. Indeed, the UK obstructed previous attempts at codification (such as the Geneva Conventions of 1958 and 1960). 

It was in England that, on the orders of King Charles I, the concept of the ‘territorialisation of the sea’ was created: according to John Selden, an English jurist, the entire English Channel, as far as the Spanish coasts, belonged to the King of England, on the basis of an ancestral usage, already reported in ancient times by Pomponius Mela, the earliest known Roman geographer. Two centuries later, the ‘Territorial Waters Jurisdiction Act’ of 1878 limited British territorial waters to three nautical miles (far less than the range of His Majesty’s (HM) coastal batteries). 

On the other hand, the UK has always supported the broadest possible definition of the ‘innocent passage’ of ships, regularly opposing any form of advance notice, notification or restriction. This conflicted position was naturally inspired by the thoughts of Hugo Grotius, a Dutch jurist, in his famous work Mare Liberum, where he defined the sea as an international territory that all nations were free to use for trade. This work was published at the twilight of Dutch maritime power, but it was the sea power of England that put it into practice better than anyone else.

While France would constantly push back against Britain’s territorial claims on the seas adjacent to its own coasts, from the end of the 18th century onwards, the Royal Navy’s naval supremacy allowed it to enforce openness – or deny enemies access to the sea – through British cannon fire. 

With the emergence of the United States Navy, Britain and France gradually came around to the argument that freedom of navigation is a common asset of humanity, to be preserved at all costs. Yet, one could make the same criticism of freedom of navigation as Ha-Joon Chang, Research Professor of Economics at SOAS, did of free trade: that it is a doctrine invented by the dominant power, imposed on the weakest by force, and then erected without fundamental debate as a universal and unquestionable virtue. 

The first turning point: Cognitive dissonance

In 1974, Resolution 3201 of the United Nations (UN) General Assembly called for a reduction in inequality, the accelerated development of all developing countries, sovereignty to be exercised over natural resources and economic activities, the regulation and supervision of transnational corporations, and the non-reciprocal transfers of technology. This idealist statement had deep consequences for maritime governance.

The year before, as the appetite for hydrocarbons soared and the discovery of polymetallic nodules in the seabed raised hopes of a new ‘gold rush’, deep offshore drilling techniques were only available to the most developed countries. These techniques, which made it possible to explore and exploit the seabed beyond the territorial sea, created tensions between the interests of developed states and those of newly independent states, with potential wealth on their doorstep but no means to exploit it or title to protect it. 

It is precisely this concern ‘Exclusive Economic Zones’ (EEZ) were designed to address in the Montego Bay Convention. The intention was clear: to allow the potential wealth of a state’s coastal waters to be protected from predatory developed countries until they gain access to the technologies which will allow them to be exploited.

In spite of the differences in national narratives, and in spite of economic, geographical or regulatory differences, it would seem that on both sides of the Channel exist maritime powers which are more interested in, or in any rate, more spoiled by, their coastlines than by the open sea.

However, the geometric formula used to define these EEZs was to benefit one of the developed countries at the forefront of offshore exploration and exploitation technologies: France. In 1982, thanks to its so-called ‘confetti of empire’ – small islands scattered around the Indian and Pacific oceans – France woke up overnight as the holder of new sovereign rights to over 11 million square kilometres of sea, for a land area (including the overseas departments and regions) of only 630,000 square kilometres. By way of comparison, the maritime area under the jurisdiction of the US is also around 11 million square kilometres, but for a land area of 9.8 million square kilometres. 

Today, the UK’s EEZ is about 770,000 square kilometres, to which must be added about 6 million kilometres square under the British Overseas Territories. Those occupying the latter have much autonomy in leveraging their EEZ as they exercise total sovereignty over fishing and the exploitation of marine subsoil. The irony here is, a century after the Pax Britannica and thanks to the law of the sea rather than military power, France now exercises sovereignty over a much larger maritime area than the UK. 

Second turning point: The trade balance

According to the famous syllogism of Walter Raleigh: ‘for whosoever commands the sea commands the trade; whosoever commands the trade of the world commands the riches of the world, and consequently the world itself.’ Many historians, including François Crouzet, have questioned this chain of logic. According to him, the economic might of the UK was born above all from exporting mass consumption goods, starting with wool and cotton sheets. Naval power was then born of the need to protect the merchant ships which exported these goods.  

In fact, the UK remained an exporting power until the aftermath of the Second World War. It was the first oil crisis of 1973 that caused the balance of payments to plummet, which, apart from a brief period in the early 1980s, saw the UK become a net-importer. Registrations of commercial vessels under the British flag also plummeted. At the end of 2022, the UK share of the world trading fleet was 0.6% by gross tonnage, compared with 33% at the height of its glory in 1939. 

France’s recent trajectory is remarkably similar. France’s balance of payments dipped into the negative for the first time in 1974, becoming positive again for a few years between 1991 and 2005, then plunging again from 2006 onwards and reaching a record deficit in 2021 of US$114 billion (£91.5 billion). As for its merchant fleet, it currently comprises only 425 merchant ships with a gross tonnage of over 100. Thus, in half a century, the UK and France became two net-importing nations with very little of their own flagged ships to defend.

Third turning point: Energy

In 1976, ‘France has no oil, but it has ideas’. Around the same time, the UK began profiting greatly from the oil fields discovered in the North Sea, largely due to the two successive oil shocks of 1973 and 1979. This is how Britain, despite its opposition in principle to the full ‘territorialisation of the sea’, became a net oil exporter again in 1981.

And it was France, which, as an oil importer, put more resources towards defending the freedom of navigation of its oil tankers in the Strait of Hormuz in 1988-1989, mobilising a complete carrier strike group for 14 months (the UK also contributed through the Armilla Patrols). It was also at that time the tragedy of the Amoco Cadiz, which ran aground in March 1978 on the coast of Portsall (North Finistère) causing an oil spill, occurred. This disaster was the starting point for the cross-government organisation of the ‘State’s Action at Sea’, which was gradually strengthened by crises and, by the mid-1990s, had become a robust organisation capable of monitoring the entire French coastline. By placing all French resources under a unified command, exercised locally by maritime prefects under the aegis of the prime minister through the intermediary of the secretary general for the sea, the organisation has the ability to intervene in the face of threats as diverse as maritime pollution, illegal fishing, drug trafficking, terrorism or illegal immigration.

A common territorial and heritage approach 

It is difficult not to see in France’s State’s Action at Sea at least in part, the heritage, once again, of the ‘peasants of the sea’. The title of maritime ‘prefect’ leaves little room for doubt as to the parallelism with the territorial organisation of rural France. On the other hand, despite the contemporary fight against illegal immigration in the Strait of Dover, the UK does not have such an organisation. Each British administration, and sometimes each region, has its own specialised resources, sometimes only competent for one type of offence (fishing, immigration, etc.), with, on the whole, a network of fixed surveillance resources (semaphores and radars) which are much less tightly woven than on the French coast, and with fewer means for intervention.

In spite of the differences in national narratives, and in spite of economic, geographical or regulatory differences, it would seem that on both sides of the Channel exist maritime powers which are more interested in, or in any rate, more spoiled by, their coastlines than by the open sea. Nonetheless, they retain a symbolic and idealised vision of themselves as open sea powers, illustrated in particular by sporadic missions to assert freedom of navigation at the other end of the world.

Moreover, it is clear that the force structure of the Marine Nationale and Royal Navy reflect, over the last thirty years, the emergence of a more ‘territorial’ mindset: with amphibious means still important; aircraft such as the F-35B utilised for ground attack; aircraft carriers deployed for ‘power projection’ in support missions for land operations; and ‘escort ships’ less numerous, in relative as well as in absolute value, than in the past. 

The French Navy’s focus, like the Royal Navy’s, has undoubtedly shifted away from protecting maritime trade in the high seas as they did in the North Atlantic during the two world wars, towards ‘action towards land’, ‘first entry’ or ‘power projection’ missions. The ‘bedrock’ mission par excellence will nevertheless remain the protection of the (distant and close) approaches to the respective sanctuaries of the Faslane and Brest continuous at-sea deterrents, where the word ‘ploughing’ is frequently on the lips of the frigate and mine hunter sailors concerned. 

Ultimately, while the size of the ‘field’ has increased significantly (out to EEZs of 200 nautical miles in radius since UNCLOS), it is all about defending the field, which is, even more so for the UK, a Copernican revolution. 

It is time to remember, however, that the British Empire’s good fortune may not have been due to its maritime power. In order to become the dominant commercial power from the 18th century onwards, the UK had benefited, from the 17th century onwards, from capital contributions derived from a more ingenious exploitation of agriculture, itself born of a need to compensate for natural conditions which were less favourable than in France. 

So perhaps the issue is not just land versus sea, peasant versus merchant, but more importantly who can innovate most ingeniously to make the most of the natural resources available, on land and sea, at home and far away, from offshore wind farms to submarine cables, and from carbon capture to sustainable fishing.

Julien Lalanne de Saint-Quentin has been an officer in the French Navy for 27 years.