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Authorizations for maritime law enforcement operations

Published online by Cambridge University Press:  18 August 2017

Rob McLaughlin
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Abstract

Although there are areas of uncertainty and overlap, authorizations for maritime law enforcement operations are beholden to a different regime from that which governs the conduct of armed conflict at sea. This article seeks to briefly describe five regularly employed authorizations for maritime law enforcement operations at sea: flag State consent, agreed pre-authorization, coastal State jurisdiction, UN Security Council resolutions, and the right of visit.

Keywords

maritime law enforcementlaw of the seajurisdiction at sea
Type
Maritime operations
Information
International Review of the Red Cross , Volume 98 , Issue 902: War and security at sea , August 2016 , pp. 465 - 490
Copyright
Copyright © icrc 2017 

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References

1 See “Argentina Coast Guard Sinks Chinese Fishing Vessel Illegally in South Atlantic”, ABC News, 16 March 2016, available at: www.abc.net.au/news/2016-03-16/argentina-coast-guard-sinks-chinese-fishing-vessel/7250208 (all internet references were accessed in June 2017); “Argentina Coast Guard Sinks Chinese Fishing Boat”, The Diplomat, 16 March 2016, available at: http://thediplomat.com/2016/03/argentina-coast-guard-sinks-chinese-fishing-boat/.

2 A general definition of “authorized vessels” is those official State vessels, including warships, coast guard cutters, marine police vessels and other specifically identified State vessels on non-commercial service, which are authorized to engage in MLE operations on behalf of their State. The 1982 UN Convention on the Law of the Sea (UNCLOS) contains no single definition, but the category is iteratively definable by tracing the definitional thread evident in (inter alia) Articles 29 (definition of warship), 31 (responsibility for damage caused by a warship or other government ship on non-commercial service), 32 (immunities), 95–96 (immunities of warships and ships on government non-commercial service on the high seas), 107 (ships entitled to seize other vessels on account of piracy), 110 (right of visit), 111 (hot pursuit), 224 (enforcement with respect to Part XII, which deals with protection and preservation of the marine environment), 236 (sovereign immunity in the context of Part XII) and 298(b) (disputes concerning military and law enforcement activities).

3 See, for example, UNCLOS, Art. 73. A further illustration is provided by a recent series of incidents involving the Republic of Korea and the Peoples Republic of China: “Appalling: Shots on Chinese Fishing Vessels by R. O. Korea Coast Guards”, South China Sea Bulletin, Vol. 4, No. 11, 2016Google Scholar, available at: http://dspace.xmu.edu.cn/bitstream/handle/2288/127434/South%20China%20Sea%20Bulletin%20Vol.%204.%20No.11%EF%BC%88November%201,%202016).pdf?sequence=1&isAllowed=y; “Chinese Fishing Boats Sink a Korean Coast Guard Vessel”, Korea Herald, 9 October 2016, available at: www.koreaherald.com/view.php?ud=20161009000240; Gabriel Samuels, “China ‘Very Dissatisfied’ after South Korean Coast Guard Fires Machine Guns at Chinese Fishing Boats”, The Independent, 5 November 2016, available at: www.independent.co.uk/news/world/asia/china-south-korea-fire-fishing-boats-response-a7398186.html.

4 For example, in accordance with the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Protocol), Article 4(7), adding a new Article 3ter to the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention): “Article 3ter: Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally transports another person on board a ship knowing that the person has committed an act that constitutes an offence set forth in article 3, 3bis or 3quater or an offence set forth in any treaty listed in the Annex, and intending to assist that person to evade criminal prosecution.’ See International Maritime Organisation, Adoption of the Final Act and any Instruments, Recommendations and Resolutions Resulting from the Work of the Conference: Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, LEG/CONF.15/21, 1 November 2005, available at: www.unodc.org/tldb/pdf/Protocol_2005_Convention_Maritime_navigation.pdf.”

5 See, for example, UNCLOS, Arts 73, 110, 111. These authorizations and powers are also often specifically enumerated in national legislation domesticating UNCLOS and other associated international law – for example, section 50 of Australia's 2013 Maritime Powers Act (Commonwealth, available at: www.legislation.gov.au/Details/C2013A00015) specifically details a non-exhaustive list of “maritime powers” for MLE agents:

Maritime powers may be exercised only in accordance with Part 2 and include the following:

  1. (a)

    (a) boarding and entry powers;

  2. (b)

    (b) information gathering powers;

  3. (c)

    (c) search powers;

  4. (d)

    (d) powers to seize and retain things;

  5. (e)

    (e) powers to detain vessels and aircraft;

  6. (f)

    (f) powers to place, detain, move and arrest persons;

  7. (g)

    (g) the power to require persons to cease conduct that contravenes Australian law.

6 See, for example, McLaughlin, Rob, “The Continuing Conundrum of the Somali Territorial Sea and Exclusive Economic Zone”, International Journal of Marine and Coastal Law Vol. 30, No. 2, 2015CrossRefGoogle Scholar.

7 For example, in MV Saiga (No. 2), the International Tribunal for the Law of the Sea (ITLOS) determined (inter alia) that Guinea's application of “customs” laws in its EEZ, but beyond the contiguous zone (in which such customs law enforcement is permissible), was invalid, and thus that the hot pursuit, arrest and prosecution that followed were also invalid in accordance with UNCLOS. ITLOS, The M/V Saiga (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July 1999, paras 110–152, available at: www.itlos.org/fileadmin/itlos/documents/cases/case_no_2/merits/Judgment.01.07.99.E.pdf. Another example is found in the Arctic Sunrise arbitration, where the Permanent Court of Arbitration (PCA) dealt with the validity of Russian MLE action taken by reference to a decreed 3-nm warning zone around the Prirazlomnaya platform, and the validity or otherwise of this action when assessed against the UNCLOS Article 60(5) authorization for 500-metre “safety zones” around such installations. PCA, The Arctic Sunrise (Netherlands v. Russia), Case No. 2014-02, Merits Award, 14 August 2015, paras 202–220, available at: www.pcacases.com/web/sendAttach/1438.

8 See for example, R. McLaughlin, above note 6, pp. 312–314.

9 Such a situation might arise where, for example, a seizure for piracy is challenged on the jurisdictional basis that the statute creating the offence of piracy is in some way generally limited by a jurisdictional reference to the statute applying in “the territory” of the State – see, for example, High Court of Kenya, R v. Mohamud Mohamed Hashi and Eight Others, Misc. Appl. 434, 2009; later overturned in Court of Appeal of Kenya, AG of Kenya v. Mohamud Mohamed Hashi and Eight Others, Civil Appeal 113, 2011, both cases available at: www.unicri.it/topics/piracy/database/.

10 See, for example: O'Connell, D. P., The International Law of the Sea, ed. Shearer, Ivan, Vol. 2, Clarendon Press, Oxford, 1982, Ch. 28Google Scholar; Allen, Craig, “Limits on the Use of Force in Maritime Operations in Support of WMD Counter-Proliferation Initiatives”, International Law Studies, Vol. 81, 2006Google Scholar; Kaye, Stuart, “Threats from the Global Commons: Problems of Jurisdiction and Enforcement”, Melbourne Journal of International Law, Vol. 8, No. 1, 2007Google Scholar. Excellent monographs relating to MLE include Moore, Cameron, ADF on the Beat: A Legal Analysis of Offshore Enforcement by the Australian Defence Force, Ocean Publications, Wollongong, 2004Google Scholar; Guilfoyle, Douglas, Shipping Interdiction and the Law of the Sea, Cambridge University Press, Cambridge, 2009CrossRefGoogle Scholar; Klein, Natalie, Maritime Security and the Law of the Sea, Oxford University Press, Oxford, 2011CrossRefGoogle Scholar; Kraska, James and Pedrozo, Raul, International Maritime Security Law, Martinus Nijhof, Leiden, 2013CrossRefGoogle Scholar; Papastavridis, Efthymios, The Interception of Vessels on the High Seas, Hart, Oxford, 2014Google Scholar. National doctrine publications dealing specifically with MLE include Australian Defence Force, Australian Maritime Jurisdiction, ADFP 06.1.2, 28 June 2010, available at: www.defence.gov.au/adfwc/Documents/DoctrineLibrary/ADFP/ADFP%2006.1.2.pdf; US Navy/US Marine Corps/US Coast Guard, The Commander's Handbook on the Law of Naval Operations, NWP 1-14M, July 20017 (US Commander's Handbook), Ch. 3, available at: http://usnwc.libguides.com/ld.php?content_id=2998109; German Navy, Commander's Handbook: Legal Bases for the Operations of Naval Forces, 2002, Part I, available at: http://usnwc.libguides.com/ld.php?content_id=2998104.

11 See, for example, ITLOS, Saiga, above note 7, para. 156: “It is only after the appropriate actions fail that the pursuing vessel may, as a last resort, use force. Even then, the appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered”; Australian Defence Force, above note 10, para 8.32:

The requirements for firing at or into vessels may be considered to be as follows:

  1. a.

    a. The action must be a last resort. It must be absolutely necessary evidenced by patiently exhausting all less forceful means available, including warning shots, unless an urgent threat to life demands otherwise.

  2. b.

    b. The action must follow an explicit warning that shots are to be fired into the vessel.

  3. c.

    c. That all efforts are made to ensure that life is not endangered. Any appreciable risk to life would render the use of direct fire unlawful. A death would not necessarily render the action unlawful in itself provided that the risk of death from direct fire was extremely unlikely and mitigated against.

See, in general, Shearer, Ivan, “Problems of Jurisdiction and Law Enforcement against Delinquent Vessels”, International and Comparative Law Quarterly, Vol. 35, No. 2, 1986CrossRefGoogle Scholar.

12 See, for example, the US Drug Trafficking Vessel Interdiction Act (DTVIA), which was specifically designed to facilitate prosecution of those involved in the use of semi-submersibles to traffic drugs. Boarding such semi-submersibles in order to secure evidence was extremely dangerous for US MLE agents, as those in control of the submersibles, upon interdiction, scuttled the vessels. The DTVIA – leveraging the apparent vessel without nationality status of these submersibles – created the offence of operating such vessels, thus empowering US MLE agents to act against this particular drug trafficking modus operandi with reduced risk to life. See US Code, Title 18, § 2285(a); Wilson, Brian, “Submersibles and Transnational Criminal Organisations”, Ocean and Coastal Law Journal, Vol. 17, 2011Google Scholar; J. Kraska and R. Pedrozo, above note 10, pp. 590–598.

13 For example, the challenge faced by a number of States during counter-piracy operations off the coast of Somalia, where apprehended pirates were not able to be prosecuted in the apprehending jurisdiction because of an absence of, or incomplete implementation of, the offence of piracy within that State's law. See UNSC Res. 1819, 2010, op. para. 2: “[The Security Council c]alls on all States, including States in the region, to criminalize piracy under their domestic law and favourably consider the prosecution of suspected, and imprisonment of convicted, pirates apprehended off the coast of Somalia, consistent with applicable international human rights law.” See, generally, Treves, Tullio, “Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia” European Journal of International Law, Vol. 20, No. 2, 2009CrossRefGoogle Scholar; Guilfoyle, Douglas, “Counter-Piracy Law Enforcement and Human Rights”, International and Comparative Law Quarterly, Vol. 59, No. 1, 2010CrossRefGoogle Scholar; van Hespen, Ilja, “Developing the Concept of Maritime Piracy: A Comparative Legal Analysis of International Law and Domestic Criminal Legislation”, International Journal of Marine and Coastal Law, Vol. 31, No. 2, 2016CrossRefGoogle Scholar. Some States, for example, had legislated an offence of piracy without the attached universal jurisdiction, thus allowing prosecution of pirates in that State's jurisdiction only where there was a nexus to that State, such as the flag of the pirate vessel or pirated vessel, or where a pirate or victim held that State's nationality. In such situations, whilst that State's MLE agents (in this case, most often navies) could board pirate vessels and detain pirates, they were ultimately required either to release them or to transfer them to another jurisdiction which had the appropriate offence of universal jurisdiction in place within its domestic law.

14 UNCLOS, Art. 111, “Right of Hot Pursuit”. For an excellent study of the right of hot pursuit prior to its fuller elaboration in UNCLOS, see Nicholas Poulantzas, The Right of Hot Pursuit in International Law, Sijthoff, Leiden, 1969.

15 See, for example, Wilson, Brian, “Human Rights and Maritime Law Enforcement”, Stanford Journal of International Law, Vol. 52, 2016Google Scholar; Kim, Seunghwan, “Non-Refoulement and Extraterritorial Jurisdiction: State Sovereignty and Migration Controls at Sea in the European Context”, Leiden Journal of International Law, Vol. 30, No. 1, 2017CrossRefGoogle Scholar.

16 For example, the key “triptych” of cases and incidents comprised by I'm Alone, Red Crusader and MV Saiga, along with more recent cases such as Guyana/Suriname, Arctic Sunrise, and the South China Sea Arbitration (Philippines v. PRC). See SS I'm Alone (Canada v. United States), 3 RIAA 1609, 1935; “Claim of the British Ship ‘I'm Alone’ v. United States”, American Journal of International Law, Vol. 29, No. 2, 1935Google Scholar; Fitzmaurice, Gerald, “The Case of the I'm Alone” British Yearbook of International Law, Vol. 17, 1936Google Scholar; Danish Memorial, 15 November 1961, UK National Archives File TS 58/577; Danish Memorial, 12 January 1962, UK National Archives File TS 58/577; Memorial Submitted by the Government of the United Kingdom of Great Britain and Northern Ireland – Anglo-Danish Commission of Inquiry: Case Concerning Incidents Affecting the British Trawler “Red Crusader”, UK National Archives File TS 58/577; Investigation of Certain Incidents Affecting the British trawler Red Crusader: Report of 23 March 1962 of the Commission of Enquiry Established by the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Denmark on 15 November 1961, 3 RIAA 521, 23 March 1962, pp. 521–539; Johnson, D. H. N., “Notes: Law of the Sea”, International and Comparative Law Quarterly, Vol. 10, No. 3, 1961CrossRefGoogle Scholar.

17 See, for example, O'Connell, D. P., “The Juridical Nature of the Territorial Sea”, British Yearbook of International Law, Vol. 45, 1971Google Scholar, on the emergence and customary international law status of the territorial sea. See also International Court of Justice, North Sea Continental Shelf Cases, Merits Judgment, 20 February 1969, ICJ Reports 1969, pp. 70–78 – the essence of the judgment, in relation to this point, is that whilst the existence of the concept of the continental shelf was considered to have by then become part of customary international law, certain methods of delimitation between competing continental shelf claims had not.

18 UNCLOS, Art. 33(1).

19 Note that whilst the provisions on piracy apply – on their face – to the high seas (being that oceanspace outside all EEZ claims), UNCLOS Article 58 operates to import these high seas authorizations into all parts of EEZs seaward of the outer limits of territorial seas.

20 Some national doctrine publications employ this shorthand term – for example, US Commander's Handbook, above note 10, § 1.6.

21 See, inter alia, UNCLOS, Arts 2(1) (territorial sea), 21 (laws and regulations relating to innocent passage), 24 (duties), 25 (rights of protection), 27–28 (criminal and civil jurisdiction), 33 (contiguous zone) and 55 (EEZ).

22 See UNCLOS, Arts 17–21, 45, 52

23 UNCLOS also contains other, context-specific references to the duties and enforcement powers of flag States – for example, Article 217 in relation to pollution.

24 UNCLOS, Arts 69, 90.

25 ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion, 2 April 2015, para. 138.

26 See, for example, European Court of Human Rights (ECtHR), Medvedyev and Others V. France, Application No. 3394/03, Judgment, 29 March 2010, ECHR 2010-III, available at: www.echr.coe.int/Documents/Reports_Recueil_2010-III.pdf. Para. 10 states:

In a diplomatic note dated 7 June 2002, in response to a request from the French embassy in Phnom Penh, the Cambodian Minister for Foreign Affairs and International Cooperation gave his government's agreement for the French authorities to take action, in the following terms:

“The Ministry of Foreign Affairs and International Cooperation presents its compliments to the French embassy in Phnom Penh and, referring to its note no. 507/2002 dated 7 June 2002, has the honour formally to confirm that the royal government of Cambodia authorises the French authorities to intercept, inspect and take legal action against the ship Winner, flying the Cambodian flag XUDJ3, belonging to ‘Sherlock Marine’ in the Marshall Islands.”

27 ITLOS, The MV Saiga (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Admissibility and Merits, Judgment, 1999, para. 83.

28 ITLOS, MV Virginia G (Panama/Guinea-Bissau), Jurisdiction, Admissibility and Merits, Judgment, 14 April 2014, para. 110.

29 See, for example, the new Article 8bis(5) introduced by the SUA Protocol of 2005 (set out in Article 8(2) of that Protocol), which clearly reinforces the requirement for flag State consent. See, generally, Reuland, Robert, “Interference with Non-National Ships on the High Seas: Peacetime Exceptions to the Exclusivity Rule of Flag-State Jurisdiction” Vanderbilt Journal of Transnational Law, Vol. 22, 1989Google Scholar; Rayfuse, Rosemary, Non-Flag State Enforcement in High Seas Fisheries, Martinus Nijhof, Leiden, 2004CrossRefGoogle Scholar, Chs 1, 3. The issue of flag State consent to boarding was to some extent challenged in the early days of the Proliferation Security Initiative, when certain US officials appeared to float the idea that international law could accept non-consented boardings where the issue at stake was WMD – see, for example, John Bolton, “‘Legitimacy’ in International Affairs: The American Perspective in Theory and Operation”, Remarks to the Federalist Society, Washington, DC, 13 November 2003, available at: https://2001-2009.state.gov/t/us/rm/26143.htm. Bolton remarked that “[w]here there are gaps or ambiguities in our authorities, we may consider seeking additional sources for such authority, as circumstances dictate. What we do not believe, however, is that only the Security Council can grant the authority we need, and that may be the real source of the criticism we face.” Also see, generally, Byers, Michael, “Policing the High Seas: The Proliferation Security Initiative”, American Journal of International Law, Vol. 98, 2004, p. 527CrossRefGoogle Scholar inter alia.

30 For example, the Agreement between the Government of the United States of America and the Government of the Republic of Croatia Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials, 2005 (US–Croatia Shipboarding Agreement), Art. 4(3)–(4), available at: www.state.gov/t/isn/trty/47086.htm. Article 4(4)(b), for instance, states that “[t]he requested Party shall answer through its Competent Authority requests made for the verification of nationality and authorization to board and search within four (4) hours of the receipt of such written requests”.

31 Doswald-Beck, Louise (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Cambridge University Press, Cambridge, 1995CrossRefGoogle Scholar (San Remo Manual), Rule 118.

32 See generally, McLaughlin, Rob, “Towards a More Effective Counter-Drugs Regime in the Indian Ocean”, Journal of the Indian Ocean Region, Vol. 12, No. 1, 2016CrossRefGoogle Scholar.

33 ECtHR, Rigopoulos v. Spain, Appl. No. 37388/97, Decision, 12 January 1999, ECHR 1999-II, p. 439, available at: www.echr.coe.int/Documents/Reports_Recueil_1999-II.pdf.

34 See, for example, US–Croatia Shipboarding Agreement, Art. 13, “Claims”:

1. Injury or Loss of Life. Any claim for injury to or loss of life of a Security Force Official of a Party while carrying out operations arising from this Agreement shall normally be resolved in accordance with the laws of that Party.

2. Other Claims. Any other claim submitted for damage, harm, injury, death or loss, asserted to have resulted from an operation carried out by a Party under this Agreement may be submitted to the boarding Party or the flag State Party, and the claim shall be processed in accordance with the domestic law of the Party in which the claim is submitted and in a manner consistent with international law.

3. Consultation. If any damage, harm, injury, death or loss is suffered as a result of any action asserted to have been taken by the Security Force Officials of one Party in contravention of this Agreement, including action taken on unfounded suspicions, or if any improper, disproportionate or unreasonable action is asserted to have been taken by a Party, the Parties shall, without prejudice to any other legal recourse which may be available, consult at the request of either Party with a view to resolving the matter and deciding any questions relating to compensation or payment.

35 SUA Protocol, Art. 8.

36 E. Papastavridis, above note 10, pp. 63–66. See also US Commander's Handbook, above note 10, § 3.11.2.5.2: “A consensual boarding is conducted at the invitation of the master … of a vessel that is not otherwise subject to the jurisdiction of the boarding officer. … The voluntary consent of the master permits the boarding, but it does not allow the assertion of law enforcement authority. A consensual boarding is not, therefore, an exercise of maritime law enforcement jurisdiction per se. The scope and authority of a consensual boarding may be subject to conditions imposed by the master and may be terminated by the master at his discretion.”

37 See, for example, “HMS Monmouth Conducts Maritime Approach and Assist Operations”, Combined Maritime Forces, 24 March 2013, available at: https://combinedmaritimeforces.com/2013/03/24/hms-monmouth-conducts-maritime-approach-and-assist-operations/.

38 See, for example, the eleven ship-boarding agreements settled between the United States and a number of major flag States, available at: www.state.gov/t/isn/c27733.htm.

39 See Agreement Concerning Co-Operation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area, 2003 (UN Drug Convention), Art. 16, “Boarding”, available at: www.state.gov/s/l/2005/87198.htm. The Agreement states: “When law enforcement officials of one Party encounter a suspect vessel claiming the nationality of another Party, located seaward of any State's territorial sea, this Agreement constitutes the authorisation by the claimed flag State Party to board and search the suspect vessel, its cargo and question the persons found on board by such officials in order to determine if the vessel is engaged in illicit traffic, except where a Party has notified the Depositary that it will apply the provisions of paragraph 2 or 3 of this Article.”

40 For example, Amendment to the Supplementary Arrangement between the Government of the United States of America and the Government of the Republic of Panama to the Arrangement Between the Government of the United States of America and the Government of Panama for Support and Assistance from the United States Coast Guard for the National Maritime Service of the Ministry of Government and Justice, 2004. Article X(6) of the Supplementary Arrangement (available at: www.state.gov/t/isn/trty/32859.htm), which remained unaltered by the Amendment to the Supplementary Arrangement, provides that “[i]f there is no response from the requested Party within two (2) hours of its receipt of the request, the requesting Party will be deemed to have been authorized to board the suspect vessel for the purpose of inspecting the vessel's documents, questioning the persons on board, and searching the vessel to determine if it is engaged in illicit traffic”.

41 Agreement between the United States of America and Costa Rica Signed at San Jose, 1 December 1998, and Amending Protocol Signed at San Jose, 2 July 1999, available at: www.state.gov/s/l/treaty/tias/120164.htm.

42 UNCLOS, Art. 19(2)(a); whether it also constitutes an “armed attack” is a more problematic question which is beholden to the wider query as to whether non-State actors may perpetrate armed attacks that enliven Article 51, and the associated issues of scale and gravity that often accompany that debate.

43 See, for example, the arrangements in Part IIIAAA of the Australian Defence Act of 1903 (Commonwealth) in relation to the “offshore area”, available at: www.legislation.gov.au/Details/C2016C00955.

44 UNCLOS, Arts 2 (internal waters, territorial sea and archipelagic waters), 8 (internal waters), 27–28 (criminal and civil jurisdiction), 33 (contiguous zone), 49 (archipelagic waters), 56 (EEZ), 77 (continental shelf), 78 (high seas).

45 Sovereign immune vessels are those vessels – warships and State vessels on non-commercial service, including coast guard, marine police and customs vessels – which are authorized to, and which are, carrying out the orders of their sovereign. See, inter alia, UNCLOS, Arts 29–32, 58, 95–96, 102, 107, 110–111.

46 This issue formed the backdrop to the unsuccessful bid by Ghanaian authorities to execute civil process on behalf of a US court order to the benefit of a private US commercial entity against the State of Argentina, by arresting the Argentine Navy sail training vessel ARA Libertad whilst it was alongside in a Ghanaian port. The dispute was submitted to ITLOS, which determined that the Libertad was a warship and thus entitled to sovereign immunity (UNCLOS, Art. 32), and that, consequently, such civil orders could not be executed against her, including in a third State's internal waters. ITLOS, ARA Libertad Case (Argentina v. Ghana), Case No. 20, Order, 15 December 2012, available at: www.itlos.org/fileadmin/itlos/documents/cases/case_no.20/published/C20_Order_151212.pdf.

47 UNCLOS, Art. 27.

48 Ibid., Art. 28.

49 Ibid., Art. 33.

50 Ibid., Arts 87(1)(e), 116–120.

51 See, for example, the jurisdiction exercisable beyond the outer limits of EEZs in accordance with the United Nations 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, in force as of 11 December 2001, Art. 3, “Application”, available at: www.un.org/depts/los/convention_agreements/texts/fish_stocks_agreement/CONF164_37.htm. The Agreement states: “Unless otherwise provided, this Agreement applies to the conservation and management of straddling fish stocks and highly migratory fish stocks beyond areas under national jurisdiction, except that articles 6 and 7 apply also to the conservation and management of such stocks within areas under national jurisdiction, subject to the different legal regimes that apply within areas under national jurisdiction and in areas beyond national jurisdiction as provided for in the Convention.”

52 Which may extend, in certain cases, to no more than 350 nm from that coastal State's baselines: see UNCLOS, Art. 76.

53 PCA, Arbitral Tribunal Constituted Pursuant to Article 287, and in Accordance with Annex VII, of the United Nations Convention on the Law of the Sea in the Matter of an Arbitration between: Guyana and Suriname, Award, 17 September 2007, available at: www.pcacases.com/web/sendAttach/902.

54 UNCLOS, Art. 1(1)(1): “‘Area’ means the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.”

55 Ibid., Art. 30.

56 See, generally, McLaughlin, Rob, “United Nations Security Council Practice in relation to Use of Force in No-Fly Zones and Maritime Exclusion Zones”, in Weller, Marc (ed.), The Oxford Handbook of the Use of Force in International Law, Oxford University Press, Oxford, 2015Google Scholar, Ch. 11.

57 UNSC Res. 1816, 2008, op. para. 7:

[The Security Council d]ecides that for a period of six months from the date of this resolution, States cooperating with the TFG [Transitional Federal Government] 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:

  1. (a)

    (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

  2. (b)

    (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.

58 McLaughlin, Rob, “United Nations Mandated Naval Interdiction Operations in the Territorial Sea?”, International and Comparative Law Quarterly, Vol. 51, No. 2, 2002CrossRefGoogle Scholar.

59 As was not the case with respect to Libya, where mandatory UN Security Council sanctions under UNSC Res. 1973 (2011) were implemented by NATO at the same time as NATO maritime forces were engaged in IHL-governed operations in relation to Libya – see, inter alia, Fink, Martin, “UN-Mandated Maritime Arms Embargo Operations in Operation Unified Protector”, Military Law and the Law of War Review, Vol. 50, No. 1–2, 2011Google Scholar.

60 See, inter alia, the Maritime Powers Act of 2013 (Commonwealth), § 12:

When international agreements and decisions apply. An international agreement or international decision applies to a vessel, installation or aircraft at a particular time if:

  1. (a)

    (a) the agreement or decision provides for the exercise of powers by Australia in relation to the vessel, installation or aircraft at that time; and

  2. (b)

    (b) either:

  3. (i)

    (i) the agreement or decision is prescribed by the regulations; or

  4. (ii)

    (ii) the Minister has approved the exercise of powers under the agreement or decision in relation to the vessel, installation or aircraft, and the approval has not lapsed.

61 See, inter alia, Brian Wilson, “The Mediterranean Migrant Crisis: Key Considerations for the UN Security Council”, Harvard National Security Journal (online), 2015, available at: http://harvardnsj.org/wp-content/uploads/2015/10/Harvard-NSJ-The-Mediterranean-Migrant-Crisis-Wilson.pdf.

62 UNCLOS, Art. 110, “Right of Visit”.

63 Ibid., Arts 100–107.

64 For example, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2000, Art. 3(a), states: “‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

65 Principle 2 of the Princeton Principles on Universal Jurisdiction (2001, available at: https://lapa.princeton.edu/hosteddocs/unive_jur.pdf) certainly takes the view that the crime of slavery is subject to universal jurisdiction:

1. For purposes of these Principles, serious crimes under international law include: (1) piracy; (2) slavery; (3) war crimes; (4) crimes against peace; (5) crimes against humanity; (6) genocide; and (7) torture.

2. The application of universal jurisdiction to the crimes listed in paragraph 1 is without prejudice to the application of universal jurisdiction to other crimes under international law.

It is important – for the purposes of jurisdictional scope and offence/elements of offences characterization and analysis – to recall that slavery as a crime in general international law (and subject to routine MLE jurisdiction) can to some extent be differentiated from slavery as a war crime, and slavery as a crime against humanity.

66 UNCLOS, Art. 109, “Unauthorized Broadcasting from the High Seas”.

67 See, generally, Woodliffe, J. C., “The Demise of Unauthorised Broadcasting from Ships in International Waters”, International Journal of Estuarine and Coastal Law, Vol. 1, 1986CrossRefGoogle Scholar.

68 See, generally, Lewis, Angeline, “Flag Verification on the High Seas: Understanding Requirements for Masters and Commanders”, International Journal of Marine and Coastal Law, Vol. 30, 2015CrossRefGoogle Scholar; Bennett, Allyson, “That Sinking Feeling: Stateless Ships, Universal Jurisdiction, and the Drug Trafficking Vessel Interdiction Act”, Yale Journal of International Law, Vol. 37, 2012Google Scholar; Fritch, Charles, “Drug Smuggling on the High Seas: Using International Legal Principles to Establish Jurisdiction over the Illicit Narcotics Trade and the Ninth Circuit's Unnecessary Nexus Requirement”, Washington University Global Studies Law Review, Vol. 8, No. 4, 2009Google Scholar; McDorman, Ted, “Stateless Fishing Vessels, International Law and the UN High Seas Fisheries Conference”, Journal of Maritime Law and Commerce, Vol. 25, No. 4, 1994Google Scholar; van Zwanenberg, Anna, “Interference with Ships on the High Seas”, International and Comparative Law Quarterly, Vol. 10, No. 4, 1961CrossRefGoogle Scholar.

69 US Commander's Handbook, above note 10, § 3.11.2.3

70 See, for example, Ibid., § 3.11.2.4 (“vessels assimilated to statelessness”). In terms of judicial dealings, see, for example, US Court of Appeals, United States v. Cortes, 588 F.2d 106 (5th Circuit), 1979, p. 109, per Justice Rubin.

71 Maritime Powers Act, 2013 (Commonwealth), § 21:

Vessels without nationality

  1. (1)

    (1) An authorising officer may authorise the exercise of maritime powers in relation to a vessel if:

    1. (a)

      (a) the vessel is not flying the flag of a State; or

    2. (b)

      (b) the officer suspects, on reasonable grounds, that the vessel:

    3. (i)

      (i) has been flying the flag of more than one State; or

    4. (ii)

      (ii) is flying the flag of a State that it is not entitled to fly; or

    5. (iii)

      (iii) is not entitled to fly the flag of any State.

    6. Meaning of vessels without nationality authorisation

  1. (2)

    (2) An authorisation under subsection (1) is a vessels without nationality authorisation.

72 UK Privy Council, The Asya (Molvan v. The Attorney-General, Palestine), UKPC 42, 1948. See also Bishop, William Jr, “Molvan v. Attorney General for Palestine” American Journal of International Law, Vol. 42, No. 4, 1948Google Scholar.

73 UNCLOS, Art. 92, “Status of Ships”:

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.

74 See, for example, Kraska, James and Monti, Michael, “The Law of Naval Warfare and China's Maritime Militia”, International Law Studies, Vol. 91, 2015Google Scholar; Andrew Erickson and Conor Kennedy, “Countering China's Third Sea Force: Unmask Maritime Militia before They're Used Again”, The National Interest, 6 July 2016, available at: http://nationalinterest.org/feature/countering-chinas-third-sea-force-unmask-maritime-militia-16860; Andrew Erickson and Conor Kennedy, “China's Maritime Militia: What It Is and How to Deal with It”, Foreign Affairs, 23 June 2016, available at: www.foreignaffairs.com/articles/china/2016-06-23/chinas-maritime-militia; James Kraska, “China's Maritime Militia Upends Rules on Naval Warfare”, The Diplomat, 10 August 2015, available at: http://thediplomat.com/2015/08/chinas-maritime-militia-upends-rules-on-naval-warfare/; “South China Sea: Courting Trouble”, The Economist, 16 July 2016, available at: www.economist.com/news/china/21702069-region-and-america-will-now-anxiously-await-chinas-response-un-appointed-tribunal; Bill Hayton, The South China Sea: The Struggle for Power in Asia, Yale University Press, New Haven, CT, 2014, Chs 3, 4; McLaughlin, Rob and Nasu, Hitoshi, “The Law's Potential to Break – Rather than Entrench – the South China Sea Deadlock?”, Journal of Conflict and Security Law, Vol. 21, No. 2, 2015Google Scholar.

75 See, inter alia, San Remo Manual, above note 31. The indicia of “formal incorporation” into a State's maritime militia or auxiliary forces are unexplored, noting that San Remo Manual Rule 13(h) defines such status as follows: ‘auxiliary vessel means a vessel, other than a warship, that is owned by or under the exclusive control of the armed forces of a State and used for the time being on government non-commercial service”. However, coastal fishing vessels have long been considered to have a special status and a right to non-interference during armed conflict at sea. See ibid., Rule 47: “The following classes of enemy vessels are exempt from attack: … (g) small coastal fishing vessels and small boats engaged in local coastal trade, but they are subject to the regulations of a belligerent naval commander operating in the area and to inspection.” See also US Supreme Court, The Paquete Habana, 175 US 677, 1900, inter alia at p. 689, per Justice Gray: “The doctrine which exempts coast fishermen, with their vessels and cargoes, from capture as prize of war, has been familiar to the United States from the time of the War of Independence.” Similarly, at p. 708:

This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that, at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war.

The exemption, of course, does not apply to coast fishermen or their vessels if employed for a warlike purpose, or in such a way as to give aid or information to the enemy, nor when military or naval operations create a necessity to which all private interests must give way.

Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales or seals or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce.

The question that arises is whether all fishing activity in the South China Sea meets this “coastal” requirement, or whether some activity could be described more accurately – in line with the reasoning of Justice Gray above – as “deep sea” or “high sea” in nature.

76 See, for example, PCA, 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, Case No. 2013-19, Award, 12 July 2016, para. 1161, available at: https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf. “On the basis of the record set out above, the Tribunal finds that the essential facts at Second Thomas Shoal concern the deployment of a detachment of the Philippines’ armed forces that is engaged in a stand-off with a combination of ships from China's Navy and from China's Coast Guard and other government agencies. … Although, as far as the Tribunal is aware, these vessels were not military vessels, China's military vessels have been reported to have been in the vicinity. In the Tribunal's view, this represents a quintessentially military situation, involving the military forces of one side and a combination of military and paramilitary forces on the other, arrayed in opposition to one another.”

77 For example, the case of the Santa Maria in January–February 1961, where the Portuguese dissidents who seized the vessel claimed the status of insurgents engaged in (or seeking to commence) an armed conflict (revolution) against the Salazar dictatorship – a status that has a long history in the law of war as exempting its claimants from characterization as pirates. See, inter alia, “Part IV: Piracy”, American Journal of International Law Supplement, Vol. 26, 1932Google Scholar; Vali, Ferenc, “The Santa Maria Case” Northwestern University Law Review, Vol. 56, 1961–1962Google Scholar; Green, Leslie, “The Santa Maria: Rebels or Pirates”, British Yearbook of International Law, Vol. 37, 1961Google Scholar; Whiteman's Digest of International Law, Vol. 4, Department of State Publication 7825, US Government Printing Office, Washington, DC, April 1965, pp 665–666; Raby, David, “Transatlantic Intrigues: Humberto Delgado, Henrique Galvao and the Portuguese Exiles in Brazil and Morocco”, Portuguese Journal of Social Science, Vol. 3, No. 3, 2004CrossRefGoogle Scholar. See also the response to questions by Mr. C. Ian Orr-Ewing, Civil Lord of the Admiralty, House of Commons Debates, Vol. 633, 24 January 1961, cols 32–35, available at: http://hansard.millbanksystems.com/commons/1961/jan/24/.

78 Letts, David and McLaughlin, Rob, “Law of Naval Warfare”, in Liivoja, Rain and McCormack, Tim (eds), Routledge Handbook of the Law of Armed Conflict, Routledge, Abingdon, 2016, p. 268Google Scholar. See, generally, McLaughlin, Rob, United Nations Naval Peace Operations in the Territorial Sea, Martinus Nijhof, Leiden, 2009CrossRefGoogle Scholar.

79 On the analogous and similarly vexed issue of use of force at sea in terms of the MLE–UN Charter Article 2(4) delineation conundrum, see Kwast, Patricia Jimenez, “Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award”, Journal of Conflict and Security Law, Vol. 13, No. 1, 2008CrossRefGoogle Scholar.