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Document Type

Article

Abstract

Globalization and the rapid expansion in international trade over the past twenty years were made possible only by growth in international maritime shipping. International merchant shipping is the lifeblood of the global economy, assimilating nations economically and serving as the principal catalyst for the political and cultural phenomenon of globalization. In recent decades, the world’s marine transportation system has grown exponentially, accelerating interstate and transcontinental integration. As the number of container cargo ships, bulk carriers, and tanker vessels has increased, port facilities on every continent have expanded rapidly to accommodate additional maritime traffic. With international merchant shipping now playing a central role in joining together nations and continents commercially and politically, the system has become more vulnerable to misuse or attack. As the world marine transportation system has grown in importance, it has become a more attractive vector for militants, terrorists, international criminal organizations, and armed groups. Parasitic groups mask illicit activities throughout the marine cargo chain infrastructure, or exploit the system as part of a strategy of asymmetric warfare against prosperous and democratic states. Regional ethnic and clan-based pirates, extremists, and separatist and freelancing smugglers infect the marine transportation system for political, economic, and military purposes. Leveraging the anonymity afforded by the vast tyranny of time and distance in the oceans, the resulting lawlessness destabilizes nations on every continent. To counter these threats, maritime law enforcement, coast guards, and naval forces conduct constabulary patrols and maritime security operations (MSO). States employ warships and law enforcement vessels, as well as submarines and aircraft, to patrol the ocean commons, particularly throughout the coastal zone. Ideally, threats can be disrupted on the land, before they manifest an immediate danger, or along the seashore interface in port facilities, roadsteads, and inshore waters. It is more practical, and often easier, to respond to threats on land than it is at sea, as authorities on land can more quickly coordinate and bring to bear against a threat a wider variety of intelligence assets and security forces. For this purpose, nations operating port facilities may condition entry of port by foreign-flagged vessels on compliance with certain port state safety, security, environmental measures, and inspection regimes. Searching a large ship at sea is impossible—containers cannot be moved about deck and tanks cannot be fully explored unless they are emptied. On other occasions, however, it may be prudent or necessary to counter threats farther out to sea, such as in the 200-nautical-mile (nm) exclusive economic zone (EEZ) or beyond that limit and on the high seas. While MSO include a wide variety of marine constabulary functions, naval forces employ doctrine and tactics, techniques and procedures for vessel interdiction or maritime interception operations (MIO). The term “MIO” itself encompasses a small assortment of naval missions, including naval control and protection of shipping, diversion of vessels away from an area or into port, escort or protection of endangered vessels, and maintenance of maritime security zones and restricted access to sea areas. MIO also includes visit, board, search, and seizure (VBSS) of ships, and associated capture of dangerous persons or seizure of ships and cargoes. The interception and boarding of a ship during peacetime involves the physical act of intercepting a vessel, which may include approaching and querying the ship (approach and possibly visit), stopping the vessel, sending a boarding team onto the ship (board), conducting an inspection or search of the ship and its cargo (search), and potentially apprehending persons on board and confiscating the ship or cargo (seizure). Maritime interception against suspect vessels may be conducted in consensual, permissive, or non-permissive environments, and in a wide variety of circumstances. Consequently, legal analysis for MIO and VBSS can become complex because it involves addressing two questions of mixed fact and law. First, the commanding officer of the intercepting ship must acquire and maintain situational awareness of the vessel to be boarded in relation to the maritime zones and navigational regimes reflected in the United Nations Convention on the Law of the Sea (UNCLOS). As a general rule, MIO may be conducted by an intercepting vessel either in its own territorial sea, or outside the territorial sea—sovereign water and airspace—of any other state. Coastal states exercise sovereignty over their territorial sea, which normally extends 12 nm from the low water mark running along the shore. Although ships of all nations are entitled to exercise the right of innocent passage in the territorial sea, this right typically does not include the right to conduct VBSS. Interception of a vessel and executing a VBSS inside the territorial sea of a coastal state without its consent typically would be regarded as an interference with the sovereignty of a coastal state. Although ships enjoying the right of innocent passage may use force in self-defense, a coastal state has responsibility for the maintenance of maritime security and marine law enforcement inside the territorial sea. Assuming that the state conducting a VBSS has authority to exercise enforcement jurisdiction in the water space of the suspect vessel—that is, the boarding is occurring either inside its own territorial sea or beyond other nations’ territorial seas—a second and perhaps more complex line of inquiry must be addressed: the legal rationale for the boarding. Normally vessels are subject to the exclusive jurisdiction of the flag state—the nation in which the ship is registered. A warship may always exercise enforcement jurisdiction over its own ships as a matter of international law. If the vessel to be boarded is a foreign-flagged ship, however, there must be some additional basis for a warship to exercise enforcement jurisdiction over it. Exceptions to exclusive flag state jurisdiction exist in times of war or armed conflict, such as the belligerent right of visit and search of a vessel to determine the enemy character of the ship or its cargo. The belligerent right of visit and search, which is a product of the law of naval warfare, is a separate legal right from peacetime MIO and VBSS. Belligerent parties to a conflict are entitled to board neutral ships anywhere in the oceans outside the territorial sea of a neutral state for the purpose of ascertaining the enemy character of the ship or its cargo. This wartime right is distinct from the aforementioned peacetime rule, in which the warship of one nation normally may not assert jurisdiction or control over a ship registered in another state. In time of peace, VBSS may only occur against a foreign-flagged ship subject to some other legal rationale that serves as an exception to exclusive flag state jurisdiction. Generally, the state in which a ship is registered—the flag state— exercises exclusive enforcement jurisdiction over vessels flying its flag. There are exceptions to this universal rule, however. In contrast to the special ship boarding regimes applicable during times of war, the legal rationale for boarding foreign-flagged vessels in peacetime are more numerous, and in several respects more complicated. While the law of naval warfare is a rather discrete body of authority with well-developed ship boarding measures, the rules for ship boarding during peacetime draw on a milieu of sources, and they arise more often. In both war and peace, however, only warships or government vessels on noncommercial service, such as marine law enforcement or coast guard ships, may exercise VBSS. The terrorist attacks against the United States on September 11, 2001, and the broadened sense of vulnerability to weapons of mass destruction (WMD) has drawn even greater variation into the peacetime composite of norms and regimes. The 2001 attacks illustrated a shocking breach of security in the aviation transportation system, and in doing so also exposed glaring vulnerabilities in the maritime domain and worldwide cargo chain. This Article focuses on the sources of international law that states may invoke as a legal basis for boarding foreign-flagged ships in time of peace. In many nations, additional implementing legislation provides a domestic basis for the activity in municipal law. Furthermore, states conducting VBSS have developed an entire retinue of associated norms, regimes, regulations and doctrine that provide additional fidelity to custom and state practice. In U.S. waters, for example, boarding U.S. vessels for law enforcement purposes is most often conducted by the U.S. Coast Guard. The Coast Guard uses the term “boarding” to mean an “armed intervention aboard a vessel to detect [or] suppress violations of applicable law.” Once on board a ship, Coast Guard officers may conduct inquiries, boat inspections, searches, seizures, and arrests to enforce U.S. law. The Coast Guard’s authority may be exercised on waters subject to the jurisdiction of the United States, or against U.S. ships on the high seas. The U.S. Navy also has extensive doctrine on the conduct of VBSS in unilateral, joint, or combined operational environments. The Navy and Coast Guard are partner armed forces, and they often conduct VBSS together, with individual boarding teams comprised of U.S. Coast Guard Law Enforcement Detachments operating in conjunction with Navy boarding teams, which may include trained sailors, special operations forces, or U.S. Marine Corps commandos. Much larger organizations, such as the 2,200-person Marine Expeditionary Units (Special Operations Capable) or MEU/SOC of the U.S. Marine Corps, also are prepared to execute a VBSS or MIO throughout the peace-war continuum. There are a handful of especially crucial international rules and institutions that naval forces, coast guards, and maritime law enforcement authorities invoke as legal authority for boarding foreignflagged merchant ships. The July 28, 2010, entry into force of a newly negotiated ship boarding regime—the 2005 Protocol to the 1988 Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA)—provides a timely point of departure for taking stock of the array of VBSS authorities in international law. There exist more legally comprehensive treatments of some aspects of VBSS, particularly within the best volume on the topic by Douglas Guilfoyle. The present study, however, is distinct in that it provides both a maritime operational context for the architecture of VBSS authorities in international law, connecting them to the naval forces that actually implement ship boarding operations, and also includes some background on United States approaches to development of the law. The original 1988 SUA treaty was adopted in the wake of the Palestinian terrorist attack on the Italian-flagged cruise ship, Achille Lauro. With the deposit of its instrument of ratification on April 29, 2010, the Republic of Nauru became the twelfth country to ratify the 2005 SUA Protocol. The twelfth ratification triggered a ninety-day clock, which ushered the treaty into force on July 28, 2010. Bulgaria became the seventeenth state to ratify the 2005 Protocol on October 7, 2010. As important as it is, the SUA treaty is only one international legal authority for boarding ships at sea, and the entry into force of the 2005 Protocol gives rise to the need for a broader understanding of the rest of the tools in the legal toolkit available to maritime security forces. Maritime security forces that seek to board a foreign-flagged merchant ship may obtain flag state permission, the consent of the master of the vessel, and under certain circumstances, board the ship as an exercise in lawful self-defense or pursuant to a U.N. Security Council Resolution adopted under Chapter VII. The exercise of port state control measures may facilitate boarding a ship at the pier, and foreign-flagged ships that violate certain coastal state laws may be boarded in the territorial sea or contiguous zone.

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