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MARITIME JURISDICTION AND THE RIGHT TO BOARD
Stuart Kaye[1]
Abstract
International law provides to States a range of circumstances in which they may order the boarding of a foreign vessel at sea. Such circumstances include traditional forms of jurisdiction, based on nationality and territory, as well as the old customary right to board to establish identity. Boardings have also been justified through a grant of authority from a flag State, a ship’s master, or the United Nations Security Council. This article considers the law around the right to board, and its application to a variety of situations at sea.
I Introduction
The extension of maritime jurisdiction in the latter half of the 20th century, which began with the Truman Proclamation[1] and the Santiago Declaration,[2] placed a vast area of national jurisdiction under the authority of coastal States. The benefits accruing to coastal States were substantial, but it is often overlooked that with a widening of jurisdiction came an implicit obligation to have the capacity to enforce the jurisdiction of the coastal State. Since the far and away most important, and until relatively recently, the only practical method of law enforcement upon the ocean was the physical boarding of a vessel, the rights of a coastal State to board a vessel are therefore most important. Nevertheless, the rights of a coastal State to undertake a boarding are typically poorly understood.
This article considers the underlying rights of a coastal State to undertake a boarding of a vessel at sea. It will consider the types of jurisdiction that permit a boarding, as well as those circumstances where a boarding can be undertaken in peacetime without any basis in the national jurisdiction of a coastal State.
II Flag State Jurisdiction
The regime of flag State jurisdiction has been a feature of international law from the earliest times. It provides, regardless of a ship’s location, that a State of registration will have jurisdiction over that ship. This will be the case on the high seas, when the ship is beyond coastal State jurisdiction, but will also be the case when the ship is within the exclusive economic zone (EEZ), territorial sea, or docked alongside in a port in a coastal State. When a ship is within another State’s territorial or internal waters, the flag State retains a prescriptive jurisdiction, but does not possess an enforcement jurisdiction to take action against the ship without either the ship leaving waters subject to the sovereignty of another State or the concurrence of the coastal State to permit its exercise of jurisdiction.
While the mechanics of ship registration is left to each State, Article 92 of the United Nations Convention on the Law of the Sea sets out the basic principles under which nationality may be assigned to a ship:
1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.[3]
It is clear from this provision that a ship may only possess one nationality at a time, and may not change its nationality during the course of a voyage. Jurisdiction over the ship on the high seas, that is beyond the jurisdiction of a coastal State, is exclusive, meaning that in the ordinary course of events a ship in waters beyond national jurisdiction can only be boarded by or under the consent of its flag State.
If a vessel has lost its nationality, or is not registered with any one State, it is regarded as stateless. Stateless vessels are not committing an offence at international law merely by lacking registration, but their position is a precarious one. Stateless vessels are subject to the jurisdiction of all States, and may be boarded by authorised ships of any State.[4]
A flag State may authorise another State to exercise its jurisdiction on its behalf. This is usually done because the ship is geographically remote from the flag State, or the flag State lacks the capacity to enforce its law. The Law of the Sea Convention does not explicitly contemplate enforcement under the authority of another State against vessels flying its flag, with the agreement of the flag State and enforcing State, but there is no prohibition on such an arrangement. While examples are relatively rare, there are instances of flag States authorising other States to enforce flag State law, including on an ad hoc basis, such as Belize’s authorisation to Australia in respect of illegal, unreported and unregulated (‘IUU’) fishing by a Belizean vessel on the South Tasman Rise, or under standing arrangements such as the United States’ ship boarding agreements with a number of flag States, including Liberia and Panama[5], to allow ships to be stopped and searched for weapons of mass destruction (‘WMD’), or related materials, in certain circumstances.
Similarly, States have a more limited ability of States to board ships flagged in other States where both are parties to the United Nations Straddling and Highly Migratory Fish Stocks Agreement (‘UNFSA’) and both are participating in a common regional fisheries management organization.[6] However, under the UNFSA the right to stop and board a third State vessel is very limited, and does not equate to the powers a warship or government vessel would have over a vessel flagged in its own State.
In the context of the efforts to prevent the proliferation of WMD, the United States has concluded a series of ship boarding agreements with a number of flag States. These agreements vary slightly in application and operation, but essentially permit the United States to board flag State registered vessels in circumstances where a vessel is suspected of carrying WMD or their precursors with the consent of the flag State.[7]
III Nationality Jurisdiction
Another basis for jurisdiction at international law is nationality – although in this context, it is the nationality of persons and corporate entities rather than ships which is in issue. Individuals are always subject to the jurisdiction of their State of nationality regardless of where in the world they might be, although their State of nationality can only enforce its law when circumstances permit. That is to say, a State only possesses enforcement jurisdiction over its nationals when they are in its territory, or aboard a ship in circumstances where the State has a right to enforce its law on some other basis. As such, an individual’s presence aboard a ship will not provide a basis alone for the assertion of an enforcement jurisdiction by the State of nationality of the individual.
This limitation does not prevent a State from applying its law to its nationals abroad, whether in the territory of another State, or aboard a ship or aircraft registered in another State. The State of nationality retains a prescriptive jurisdiction, but cannot enforce its law over its nationals until it also possesses an enforcement jurisdiction.
Nationality jurisdiction has been used by a number of States in the context of marine environmental protection. For example, in Australia, under s 229 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the Parliament has made it an offence for any Australian national to participate in whaling activities, even aboard vessels registered in other States, in waters beyond Australian jurisdiction.[8]
Since an individual may have more than one nationality, potentially more than one State may be able to assert jurisdiction over such individuals. However at sea, enforcement jurisdiction will be clear as under Article 92 of the Law of the Sea Convention, ships can only possess one State of registration or be Stateless.
IV Universal Jurisdiction
Although jurisdiction based on flag is the primary basis for enforcement of law on the high seas, international law does permit the exercise of jurisdiction by States over foreign vessels beyond national jurisdiction in limited circumstances. This form of jurisdiction, known as universal jurisdiction, is outlined in Article 110 of the Law of the Sea Convention:
1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:
(a) the ship is engaged in piracy;
(b) the ship is engaged in the slave trade;
(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;
(d) the ship is without nationality; or
(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.
3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.
4. These provisions apply mutatis mutandis to military aircraft.
5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service.
Ships engaged in the slave trade, unauthorized broadcasting and piracy in waters beyond the territorial sea of another State may be the subject of enforcement action by a State's warships or other appropriately marked government vessels. In the cases of piracy and the slave trade, both are regarded as serious international crimes, which the international community recognized should be suppressed by all States, wherever it occurs. This argument is less persuasive when applied to unauthorized broadcasting, but strong British pressure during the negotiation of the Convention was ultimately successful.[9] Stateless vessels possess no nationality, and therefore may be able to be regulated by all, and vessels of the flag State seeking to disguise their identity should also be, logically, under their true flag's jurisdiction.
In recent times, the United Nations Security Council has sought to permit a limited extension of universal jurisdiction with respect to piracy to off the Horn of Africa. In certain limited circumstances, the Security Council has authorised States to enter Somalia's territorial sea to undertake anti-piracy operations.
V Right of Visit and Consent to Board
The boarding of a foreign ship on the high seas by a Government vessel of another State raises a number of issues in international law. The most significant of these is ensuring the boarding is consistent with Article 110 of the Law of the Sea Convention.
The provision sets out the circumstances in which a foreign-flagged vessel may be stopped and boarded on the high seas, or by virtue of Article 58(2) of the Law of the Sea Convention[10], to vessels stopped and boarded within the EEZ of a State, without the boarding being pursuant to the EEZ jurisdiction of the coastal State.
Article 110 of the Law of the Sea Convention sets certain conditions on the right of visit on the high seas. A threshold requirement, contained in Article 110(5) is the boarding takes place from an appropriately marked and authorised government vessel. In relation to this, it seems clear that all warships, coast guard vessels and customs vessels would clearly meet these criteria.
There are good reasons to suggest that the list in Article 110 is not an exhaustive expression of the right to board a vessel on the high seas. First, there is no confirmation of the right to stop and board vessels of the warship’s own flag. This is assumed under the Convention, as evidenced indirectly in Article 91. The right to stop and board a State’s own flagged vessels in waters beyond another State’s sovereignty is beyond question, and therefore Article 110 is not intended to be a comprehensive statement of all possible boarding rights in all circumstances.
Second, the rights conferred under Article 110 of the Law of the Sea Convention appear to relate to the exercise of ‘acts of interference’ in circumstances other than where these are conferred by treaty. If Article 110 amounts to a codification of all boarding rights, then consent by a flag State through the mechanism of a treaty would be needed to board a foreign flagged vessel on the high seas. Since there appears to be no objection within the international community to consent by a flag State to a boarding via diplomatic means, it would suggest that Article 110 does not exhaustively set out the situation for boardings on the high seas in all circumstances.
Third, the definition of interference is significant. It could be argued that a boarding made at the request of the ship’s master does not fall within the scope of Article 110, as such boarding would be voluntary in character, and therefore would not ‘interfere’ with the ship’s freedom of navigation.[11] On the other hand if interference has a wide definition, it might be equated with any form of visit to the ship and therefore Article 110 could be said to amount to a codification of visit on the high seas.
‘Acts of interference’ are not formally defined under the Law of the Sea Convention, although the term ‘interference’ is used in a variety of contexts in other articles. For example, in what appears to be a similar context[12], it is used in Article 60(7), in relation to artificial islands, structures and installations causing interference to international navigation in the EEZ. Similarly in Article 78(2), a coastal State’s use of its continental shelf cannot cause unjustifiable interference with the rights of other States under the Convention, including presumably navigation, overflight and the laying of submarine cables and pipelines. Article 194(4) provides a similar context with respect to activities designed to limit pollution in the marine environment. These uses of interference suggest some impediment to the exercise of a right, such as the right of navigation being affected by some obstruction constructed by the coastal State. A similar use, albeit in the negative is also found in Article 261 the title of which indicates that marine scientific research cannot cause an obstacle with shipping routes. The definition in these circumstances would seem to equate interference with some interruption or impediment with freedom of navigation, which of itself would leave open the possibility that a ship’s master consenting to a boarding was distinct from an act of interference.
In order to clarify the meaning of the term interference, it is valid to make use of extrinsic material to seek further information of the term. Article 32 of the Vienna Convention on the Law of Treaties provides that such material can be used as a subsidiary means of interpretation where the meaning of the word is ‘ambiguous’[13], so it is not unreasonable to look at the travaux préparatiores of the Law of the Sea Convention at the Third United Nations Conference on the Law of the Sea (‘UNCLOS III’) for assistance.
As is the case with so many provisions within the Law of the Sea Convention, the travaux préparatoires of the Law of the Sea Convention are not of tremendous assistance in bringing meaning to terms. Article 110’s text was largely derived from Article 22 of the 1958 Convention on the High Seas:
1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant ship on the high seas is not justified in boarding her unless there is reasonable ground for suspecting:
(a) That the ship is engaged in piracy; or
(b) That the ship is engaged in the slave trade; or
(c) That though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
2. In the cases provided for in subparagraphs (a), (b) and (c) above, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.
3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.
As is evident, Article 110 of the Law of the Sea Convention is closely based on the above provision, with the addition references to military aircraft and a right to board in respect of statelessness and unauthorised broadcasting. The use of the phrase ‘acts of interference’ in Article 22 of the High Seas Convention is identical and used in the same context as Article 110, so its definition should be a legitimate aid to interpretation of the later provision.
Unfortunately, ‘acts of interference’ are not defined in the High Seas Convention, so it is again necessary to consider the travaux préparatoires. In this case, the First United Nations Conference on the Law of the Sea (‘UNCLOS I’) made extensive use of the work of the International Law Commission (‘ILC’) in the preparation of the final text, so it is logical to examine the ILC’s consideration of the draft of what was to become Article 22 of the High Seas Convention.
Interestingly, an earlier draft of Article 22 was titled ‘Right of Stoppage’. The title was changed after the observation of the Commission’s Secretary, Mr Liang, that a more appropriate title should be used. Sir Gerald Fitzmaurice suggested that ‘Right of Visit’ might be more appropriate. There was also originally a proposal for a form of jurisdiction based on stopping vessels during ‘times of imminent peril to the security of the State’, but this was dropped as potentially being too open to abuse.[14]
Nothing in the commentary to the draft nor in the discussion of the Commission gives any indication that boarding a vessel with the consent of the master is not permissible. The instances dealt with stopping and potentially boarding a vessel to ascertain its character with reference to the then extant categories of universal jurisdiction. The commentary states:
In these three cases the warship is authorized to request a ship not flying its flag to show its colours. If the suspicion is not allayed the warship may proceed to check the ship’s papers. To this end it must send a boat to the suspect ship. As a general rule, the warship may not require the merchant ship to put out a boat to the warship. That would be asking too much of the merchant ship, and a ship’s papers must not be exposed unnecessarily to the risk of getting lost. If the examination of the merchant ship’s papers does not ally the suspicions, a further examination may be made on board the ship. Such examination must in no circumstances be used for purposes other than those which warranted stopping the vessel. Hence the boarding party must be under the command of an officer responsible for the conduct of his men.[15]
It is worth noting there is no discussion as to obtaining or seeking the consent as an adjunct or in the alternative to these procedures, nor is there any reference to the ship’s master. It is submitted that this indicates the categories of boarding described in Article 22 of the High Seas Convention, ultimately extended and incorporated into the Law of the Sea Convention, were not exhaustive of all circumstances, but rather were applicable where the ship to be boarded and its flag State had not given consent for the vessel to be stopped and boarded in the specific case.
Finally, master’s consent as a basis for jurisdiction is used in Article 27(1)(c) of the Law of the Sea Convention with respect to an assertion of jurisdiction by a coastal State over vessels passing through its territorial sea. Under the innocent passage regime, a coastal State would not ordinarily be able to assert criminal jurisdiction over a foreign vessel passing through its waters, unless one of a number of alternative criteria were met by the alleged offence and circumstances of the case. One of these criteria was a request from the master to investigate.
It is submitted this use of master’s consent can be distinguished from the present situation. In the present case, there is no question that the boarding warship’s flag State can assert its criminal jurisdiction in respect of offences committed abroad.[16] All that is possible is to board the vessel with the consent of the master. Were the master’s consent withdrawn, in the absence of another basis to be aboard, the boarding party would be obliged to quit the boarded vessel immediately.[17]
Regulation 8 of Chapter XI-2 of the International Ship and Port Security Code (‘ISPS Code’) is also relevant. It deals with the master’s authority with respect to access to the ship. It provides:
1. The master shall not be constrained by the Company, the charterer or any other person from taking or executing any decision which, in the professional judgement of the master, is necessary to maintain the safety and security of the ship. This includes denial of access to persons (except those identified as duly authorized by a Contracting Government) or their effects and refusal to load cargo, including containers or other closed cargo transport units.
2. If, in the professional judgement of the master, a conflict between any safety and security requirements applicable to the ship arises during its operations, the master shall give effect to those requirements necessary to maintain the safety of the ship. In such cases, the master may implement temporary security measures and shall forthwith inform the Administration and, if appropriate, the Contracting Government in whose port the ship is operating or intends to enter. Any such temporary security measures under this regulation shall, to the highest possible degree, be commensurate with the prevailing security level. When such cases are identified, the Administration shall ensure that such conflicts are resolved and that the possibility of recurrence is minimised.
It would seem inconsistent with the central role assigned the master under the ISPS Code to ignore his/her authority to make a decision with respect to the security of the ship in consenting to a boarding.
State practice is also supportive of master’s consent being a basis to board a vessel at sea. The United States strongly adheres to the view that the consent of a ship’s master will always be a sufficient basis to board a vessel on the high seas. The Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations under the heading of ‘Consensual Boarding’ states:
A consensual boarding is conducted at the invitation of the master (or person-in-charge) of a vessel which is otherwise not subject to the jurisdiction of the boarding officer. The plenary authority of the master over all the activities related to the operation of his[/her] vessel while in international waters is well established in international law and includes the authority to allow anyone to come on board his[/her] vessel as his[/her] guest, including foreign law enforcement officials.[18]
The US has undertaken numerous boardings upon such vessels outside the territorial sea on the basis of master’s consent.
In addition, Wilson notes the United States has concluded ship boarding agreements with 19 States in respect of drug interdiction and/or proliferation of weapons of mass destruction.[19] The agreements include Antigua and Barbuda, Belgium, Costa Rica, Croatia, Dominica, the Dominican Republic, Grenada, Guatemala, Guyana, Honduras, Malta, Nicaragua, Panama, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Surinam and Trinidad and Tobago. To this list could be added Mongolia, which has subsequently concluded a shipboarding agreement with the US.[20] Each of these agreements indicates it is not intended to replace existing bases of boarding vessels upon the high seas, including master’s consent.[21] These agreements encompass a geographically wide array of States, and represent in excess of 50% of world tonnage.[22]
Finally, it is interesting to note that a number of high profile boardings have been undertaken outside of territorial waters without the consent of the flag State, apparently without objection by the flag State, or significant international concern. The boarding and redirection of the BBC China in 2003 under the Proliferation Security Initiative was undertaken by the US, UK and Italy and facilitated by Germany. Although it was reported the vessel was German, the reality was the vessel’s owner was a company headquartered in Germany. The shipowner directed the master to cooperate with boarding personnel. The flag State, Antigua and Barbuda, was not involved.[23]
On 3 January 2002, the Israeli Defence Force stopped and inspected the Tongan registered Karine A outside Israeli territorial waters. The vessel was found to be carrying a large stockpile of weapons, apparently bound for the Gaza Strip.[24] Tonga’s response to this was to express its concern that weapons were carried aboard, and its support for anti-terror actions by the United Nations and the United States. There is no evidence that a protest was made to Israel with respect to the stopping of the Karine A, or to the United States and Malta with respect to their searching two other Tonga-registered vessels immediately prior to the Karine A incident.[25]
Similarly, more recent reports about the disappearance and tracking of the Arctic Sea by the Russian Navy in August 2009 largely neglected the fact the vessel was registered in Malta. Reports the vessel had been seized by pirates do not appear to be true, and the vessel proceeded back to Russia under the control of a Russian naval steaming party. Again, the flag State, in this case Malta, did not object.[26]
It seems logical that if State practice will permit a shipowner to give permission for the boarding of a vessel, then the consent of the master will be sufficient. Such consent however, confers no jurisdiction on the part of the boarding State. If asked to leave the boarding party must do so. Any basis for a boarding party to be on board must be based on a separate head of jurisdiction as already discussed.
Finally, it seems at odds with the authority typically vested in the position that the master of a vessel at sea would lack sufficient power to permit persons to board while on the high seas. It is submitted that in the absence of a legal prohibition imposed by the flag State upon a master, prohibiting a boarding, it is entirely consistent with the authority of a master that he or she can stop their vessel and invite aboard whomever they wish. The master is vested with control of the vessel, and should therefore have authority to determine who may board and in what circumstances.[27] Again, it should be stressed that a boarding based on master’s consent would not give the boarding State jurisdiction over the ship, so the master’s action will not materially alter the authority and jurisdiction of the flag State of the boarded vessel. A boarding of this type has been described as Approach Assist Visit (‘AAV’).
VI United Nations Security Council Resolutions (‘UNSCRs’)
Jurisdictional limitations can be overcome through a resolution of the United Nations Security Council. The Security Council’s mandate to uphold international peace and security has permitted action to be taken from time to time to authorise the interdiction of vessels in circumstances that otherwise might be ultra vires at international law.
A number of examples of this form of authorization can be given. United Nations Security Council Resolution 217 (1965) provided for a response to the Unilateral Declaration of Independence by the Rhodesian Government in 1965. It provided:
8. Calls upon all States to refrain from any action which would assist and encourage the illegal regime and, in particular, to desist with providing it with arms, equipment and military material, and to do their utmost in order to break economic relations with Southern Rhodesia, including an embargo on oil and petroleum products;
9. Calls upon the Government of the United Kingdom to enforce urgently and with vigour all the measures it has announced, as well as those mentioned in paragraph 8 above;
The UK interpreted this Resolution to justify a blockade of the port of Beira in Mozambique, on the basis this port was being used to ship embargoed material to Rhodesia. Royal Navy ships commenced a blockade in 1966, but would only stop and board tankers with the consent of the flag State. When Greece refused to give permission with respect to a tanker flying its flag, the UK sought a new resolution that authorised the use of force to stop tankers reaching Beira with oil bound for Rhodesia. This authorisation was forthcoming in Resolution 221 (1966).
In the period following the Iraqi invasion of Kuwait, the United Nations Security Council supported a full trade embargo of Iraq, subject only to humanitarian necessity.[28] To give effect to this embargo, the Security Council adopted Resolution 665 (1990), which provided in part:
1. Calls upon those Member States co-operating with the Government of Kuwait which are deploying maritime forces to the area to use such measures commensurate to the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping in order to inspect and verify their cargoes and destinations and to ensure strict implementation of the provisions related to such shipping laid down in resolution 661 (1990)
This provision was interpreted to authorise the maritime inception operations undertaken in the Persian Gulf up until 2003.
The United Nations Security Council has responded to the rise of pirate attacks from Somali waters with a series of resolutions empowering the international community in certain circumstances to interdict pirates in the territorial sea of Somali. The first of these resolutions, UNSCR 1816 (2008) provided:
7. Decides that for a period of six months from the date of this resolution, States cooperating with the TFG in the fight against piracy and armed robbery at sea off the coast of Somalia, for which advance notification has been provided by the TFG to the Secretary-General, may:
(a) Enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and
(b) Use, within the territorial waters of Somalia, in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery;
8. Requests that cooperating states take appropriate steps to ensure that the activities they undertake pursuant to the authorization in paragraph 7 do not have the practical effect of denying or impairing the right of innocent passage to the ships of any third State;
9. Affirms that the authorization provided in this resolution applies only with respect to the situation in Somalia and shall not affect the rights or obligations or responsibilities of member states under international law, including any rights or obligations under the Convention, with respect to any other situation, and underscores in particular that it shall not be considered as establishing customary international law, and affirms further that this authorization has been provided only following receipt of the letter from the Permanent Representative of the Somalia Republic to the United Nations to the President of the Security Council dated 27 February 2008 conveying the consent of the TFG.
While Security Council Resolution 1816 (2000) had a sunset clause, the resolution has been continually renewed in the years since in a series of resolutions since that time, in the same form.[29] A large number of States have subsequently been engaged in anti-piracy patrols in the waters around the Horn of Africa, including JTF-151, OP ATALANTA and a number of vessels operating outside of these efforts from a number of States including India and China.[30]
VII Conclusion
International law affords States a wide range of circumstances in which a boarding of a foreign vessel may be undertaken at sea. These include traditional forms of jurisdiction, based on nationality and territory, as well as long standing rights to establish identity, as well as through the mechanism of other authority, from a flag State, a ship’s master, or the United Nations Security Council. It is therefore within the competence of most States, alone or in concert with members of the international community, to find a way to lawfully board a vessel at sea.
[1] Director and Distinguished Professor of Law, Australian National Centre for Ocean Resources and Security, University of Wollongong, Australia. Formerly Professor and Head of the School of Law, James Cook University (2001-2002).
[1] Proclamation by the President of the United States of America, 28 September 1945: Proclamation No.2667 ‘Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf’ 10 Federal Register 12303.
[2] Declaration of the Maritime Zone, done at Santiago 18 August 1952: Revista Peruana de Derecho Internacional, tomo XIV, No 45 (1954) 104.
[3] United Nations Convention on the Law of the Sea, opened for signature on 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994), Article 92.
[4] Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge, 2009) 16-18.
[5] See State Department, Ship Boarding Agreements, <http://2009-2017.state.gov/t/isn/c27733.htm> . Mary Beth Nifkin, Proliferation Security Initiative (PSI), 9 August 2018
<https://fas.org/sgp/crs/nuke/RL34327.pdf>.
[6] For example see Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature 4 December 1995, [2001] ATS 8 (entered into force 11 December 2001), Article 20.
[7] At the time of writing the United States had concluded ship boarding agreements with Antigua and Barbuda; Bahamas; Belize; Croatia; Cyprus; Liberia; Malta; Marshall Islands; Mongolia; Panama; and, St. Vincent and the Grenadines: see <http://2009-2017.state.gov/t/isn/c27733.htm> .
[8] See definitions in Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 224.
[9] MH Nordquist (ed.), United Nations Convention on the Law of the Sea, 1982: A Commentary (Martinus Nijhoff, 1995) Vol.3, 233.
[10] Article 58(2) of the Law of the Sea Convention provides:
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.
[11] See Craig H Allen, Maritime Counter-proliferation Operations and the Rule of Law (Greenwood, 2007) 129.
[12] Interference is also used in Article 109 of the Law of the Sea Convention in the context of radio transmissions, which would seem a distinct meaning that is not applicable here. Similarly, Article 145(a) refers to interference with the ecological balance of the marine environment, which would also seem different to the context in Article 109.
[13] Article 32 of the Vienna Convention on the Law of Treaties provides:
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
[14] See [1955] 1 Yearbook of the International Law Commission at 229.
[15] See [1955] 2 Yearbook of the International Law Commission at 284.
[16] A similar point is made by Allen: Allen, supra n 11, 129.
[17] This is consistent with the US practice: see infra note 18.
[18] Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, (US Naval War College, 1997) para.3.11.2.5.2.
[19] DG Wilson, ‘Interdiction on the High Seas: The Role and Authority of a Master in the Boarding and Searching of his Ship by Foreign Warships’ (2008) 55 Naval Law Review 157 at 201.
[21] For example, Article 9 of the agreement with Belize provides:
Except as expressly provided herein, this Agreement does not apply to or limit boardings of vessels conducted by either party seaward of any nation's territorial sea, whether based on the right of visit, the rendering of assistance to persons, vessels, and property in distress or peril, the consent of the vessel master, or an authorization from the flag state to take law enforcement action.
Maritime Counter-Drug Operations – Agreement between the United States and Belize, done 23 December 1992, TIAS 11914 (entered into force 23 December 1992).
[23] SL Hodgkinson, E Cook, T Fitcher, C Fleming, J Shapiro, J Mellis, B Boutelle, J Sanoski and GP Noone, ‘Challenges to Maritime Interception Operations in the War on Terror: Bridging the Gap’ (2007) 22 American University International Law Review 583 at 660.
[24] Ibid. at 623-624.
[25] Israel Ministry of Foreign Affairs, Seizing of the Palestinian Weapons Ship Karine A, <http://www.israel.org/MFA/PressRoom/2002/Pages/Seizing%20of%20the%20Palestinian%20weapons%20ship%20Karine%20A%20-.aspx> .
[26] Chris Irvine, ‘Arctic Ghost Ship ‘was carrying weapons to Iran’, The Telegraph, 6 September 2009, <http://www.telegraph.co.uk/news/worldnews/europe/russia/6145336/Arctic-Sea-ghost-ship-was-carrying-weapons-to-Iran.html> .
[27] This is evidenced by the level of authority vested in the master under a range of other instruments concluded since 1982: The International Safety Management Code of 1995, and revisions to SOLAS in 1995 and under the ISPS Code in 2002: Hodgkinson, Cook, Fitcher, Fleming, Shapiro, Mellis, Boutelle, Sanoski and Noone, supra note 23, 599.
[28] UNSCR 661 (1990).
[29] For example see UNSCR 1846 (2008); UNSCR 1851 (2008); UNSCR 1897 (2009); UNSCR 1918 (2010); UNSCR 1950 (2010); UNSCR 1976 (2011); UNSCR 2020 (2011); UNSCR 2124 (2013); UNSCR 2125 (2013).
[30] See generally A. Forbes (ed.), Australia’s Response to Piracy: A Legal Perspective (Sea Power Centre – Australia, 2011).
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