Abstract
The visit of a foreign-flagged vessel is the core activity of maritime interception operations. The right of visit of foreign-flagged vessels comes in different manifestations, depending on the legal basis. This chapter analyses these different manifestations of the right of visit. One challenge is that today’s conflicts are often characterized as non-international in nature. As the law of naval warfare does not apply to non-international armed conflicts, the question remains whether a non-international armed conflict right of visit should exist and under what legal parameters.
The belligerent right of visit is not a substantive and independent right, it is a means justified by the end.
—A. P. Higgins
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Notes
- 1.
Higgins 1926, p. 43.
- 2.
Ministerie van Defensie, Eindevaluatie CTF 150, 18 September 2006.
- 3.
Interestingly, Article 2bis sub 2 of the SUA-Protocol mentions that the Convention does not apply to the activities of armed forces during an armed conflict, but does not exclude that the Convention applies also during armed conflict.
- 4.
See also McLaughlin 2015, pp. 267–268.
- 5.
In this context McLaughlin refers to an interesting situation during the 2003 operations against Iraq , in which the belligerent visit and search does not allow a warship to visit a vessel that comes from the enemy state (based on the fact that contraband needs to have an enemy destination), and where the co-existing resolution does provide the authority to stop merchant vessels for inspection of prohibited goods. McLaughlin 2015, p. 267.
- 6.
Gill 2010, pp. 229–234.
- 7.
Kraska 2010b, p. 11.
- 8.
Medvedyev, para 10.
- 9.
Medvedyev, paras 98–99.
- 10.
Other peacetime rights of visit may be found in article 111 UNCLOS, which regulates the right of hot pursuit. Arguably, also Article 98 UNCLOS implies a right of visit to secure the safety of persons in distress at sea. Also, outside the realm of international peace and security , more implicit rights of visit exist, for example, a right of visit that is implied in other authorities in which a state asserts their rights in the different maritime zones. The practical side to conduct the authorities given under Article 33 UNCLOS in the contiguous zone implies such a right for certain specific purposes.
- 11.
Klein 2005, p. 302.
- 12.
Article110 UNCLOS (excerpt) reads:
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:
- 13.
Article 110 sub 3 UNCLOS reads:
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.
- 14.
Wendel 2007, p. 113.
- 15.
- 16.
Article 105 UNCLOS reads:
On the high seas , or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.
- 17.
The Netherlands Criminal Code has made piracy punishable under Articles 381–385. The Netherlands Criminal Procedural Code in Article 359d opens the possibility that commanders of Netherlands warships are authorized to act against piracy.
- 18.
Heintschel von Heinegg 2010, p. 389.
- 19.
Article 1 of the EU Council Joint Action 2008/851/CFSP states:
2. The forces deployed to that end shall operate, up to 500 nautical miles off the Somali coast and neighbouring countries, in accordance with the political objective of an EU maritime operation, as defined in the crisis management concept approved by the Council on 5 August 2008.
- 20.
Den Heijer 2011, p. 236.
- 21.
Guilfoyle notes that this issue remains unclear. He concludes that some States, including the US, take the approach that jurisdiction may be asserted over a stateless vessel, which is a practice that, as he states, is unprotested. Guilfoyle 2009, pp. 341–342.
- 22.
Kraska and Pedrozo 2013, pp. 785–787.
- 23.
Antigua and Barbuda, Bahamas, Belize, Croatia, Cyprus, Liberia, Malta, Marshall Islands, Mongolia, Panama, St. Vincent and the Grenadines. See www.state.gov/t/isn/c27733.htm. All the BSA have also been published on this website.
- 24.
Kraska and Pedrozo 2013, p. 788.
- 25.
It is mentioned, however, in historical treaties. See Heintschel von Heinegg 1995.
- 26.
In, for instance, provisions of the (unratified) London Declaration of 1909, the Hague Convention (XI) relative to certain restriction with regard to the exercise of the right of capture in naval war of 1907 and the Paris Declaration of 1856, there is mention of capture, rather than explicitly expressing that there is a belligerent right of visit and search. Article 63 of the London Declaration (resistance to search) specifically mentions search.
- 27.
Pyke 1915, pp. 196–197.
- 28.
Colombos 1962, p. 712.
- 29.
Gioia and Ronzitti 1992, p. 232.
- 30.
It appears also that the US Coast Guard vessels during OIF have made use of the right. See Tripsas et al. 2004.
- 31.
Special warnings are warnings issued by the US to alert the maritime community of risks for maritime shipping in maritime zones. It can also contain information on what to expect when a merchant vessel is entering an operational area.
- 32.
Special Warning no. 121 Persian Gulf is reproduced in Kraska and Pedrozo 2013, p. 95.
- 33.
Colombos 1962, para 870.
- 34.
Heintschel von Heinegg (2003, p. 407) states that:
Enemy merchant vessels may not be attacked unless there is sufficient proof that they serve a function that renders them legitimate military objectives. They are, however, subject to visit, search and capture, unless they are in neutral waters.
- 35.
San Remo Manual, Commentary, p. 196.
- 36.
- 37.
Higgins 1926, p. 43.
- 38.
Colombos 1962, para 866.
- 39.
Rule no. 118 SRM reads:
In exercising their legal rights in an international armed conflict at sea, belligerent warships and military aircraft have a right to visit and search merchant vessels outside neutral waters where there are reasonable grounds for suspecting that they are subject to capture .
- 40.
Although Hague Convention no XII (1907) was supposed to establish an international prize court to adjudicate prizes in appeal, the Convention has never come into working.
- 41.
Paragraph 5.2.2. Helsinki Principles.
- 42.
The UK Manual on the Law of Armed Conflict (2005) mentions that:
The United Kingdom has not used prize courts for many years and unlikely to do so in the future. Where a vessel or aircraft is captured by United Kingdom armed forces it will normally be deemed to be the property of Her Majesty’s government UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford, 2005), para. 12.78.1. It is, however, remarkable that this paragraph is not repeated in the chapter on maritime operations.
The US and Israel still appear to accept the validity of having prize courts. Israel has submitted the Finnish vessel Estelle , captured while trying to breach the Gaza blockade in 2012, before a court (see http://opiniojuris.org/2014/01/13/lieblich-guest-post-yet-another-front-israelipalestinian-lawfare-international-prize-law/). According to Brown, during the Iraq War in 2003, the US prepared for prize taking and assigned competent court to do so. In 2002, The Netherlands has deleted from its domestic laws the competency of the Hoge Raad (the Supreme Court of the Netherlands) to judge prize cases, even though the Netherlands Maritime doctrine of the Netherlands Navy still recognizes the need for prize courts. See more elaborately on the current state of Dutch Prize Law, Fink 2013. The Hoge Raad (The Supreme Court of the Netherlands) has only once made use of its prize law competency. This took place in the Nyugat-case (1956) that concerned the capture made by the Netherlands Navy (Hr. Ms. Kortenaer) during the beginning of the Second World War in the Far East.
- 43.
For instance with regard to convoying neutral merchant vessels by neutral warships and the position that reasonable suspicion must exist that a vessel is carrying contraband at that very moment, not a reasonable suspicion that the vessel has carried contraband but is now empty and is already on its way back to a neutral port.
- 44.
The conditions of contraband and destination is also underlined in paras 5.2.1. and 5.2.3. of the Helsinki Principles on the law of maritime neutrality (1997).
- 45.
Gioia and Ronzitti 1992, p. 232. They mention that legal writers opine that the belligerent practice of enlarging contraband lists to comprise all goods considered to be useful for the enemy makes the difference between absolute and conditional obsolete.
- 46.
Conference report Council on Ocean Law and the Law of the Sea Institute 1988, p. 306.
- 47.
See on the effect of ius ad bellum on ius in bello Gill 2015.
- 48.
Rule 120 SRM, Article 61 LD. Heintschel von Heinegg 1994, pp. 5–34.
- 49.
Tucker 1955, p. 318.
- 50.
In the Asama Maru incident (1940) the UK took the position that even persons that were not yet military, but were returning to their homeland and could possible take up military service could also be taken prisoner. The Japanese Government protested against this view. See Dunham 1997.
- 51.
E.g. transporting passengers that are embodied in the armed forces of the enemy, gathering intelligence for the enemy or transporting a military detachment of the enemy.
- 52.
- 53.
Which, in rule number 4, states that a blockade must be effective for it to be established lawfully.
- 54.
One attempt of codifying the law of blockade can be found in the first 21 articles of the London Declaration (1909).
- 55.
SRM, rule 126(f), Articles 14, 17, 20 LD.
- 56.
A/HRC/15/21, for instance in para 56, by stating that ‘Thus, if there is no blockade , the only lawful basis for intercepting the vessel would be …’ implies that a right of visit is accepted within the context of blockade.
- 57.
See Heintschel von Heinegg 2013; Section IV SRM.
- 58.
See Article 4 Hague Convention no. XI (1907), Article 25 GCII and Section 136 SRM.
- 59.
Section 135 SRM. Heintschel von Heinegg 2013, p. 495.
- 60.
McLaughlin 2011 , p. 403.
- 61.
Heintschel von Heinegg 2007, p. 213.
- 62.
SRM, p. 73.
- 63.
During the Algerian Crisis of 1955–1962 in which France, based on self-defence , controversially used the belligerent visit and search during a NIAC . See Papastavridis 2013, pp. 95–97.
- 64.
- 65.
See e.g. Pejic 2007, p. 345.
- 66.
From October 2001 to June 2002.
- 67.
Brown 2003, pp. 303–307.
- 68.
Letters to parliament, 27 September 2004.
- 69.
Eindevaluatie CTF 150, Ministerie van Defensie, 18 September 2006, p. 4.
- 70.
The Eindevaluatie CTF 150 (18 September 2006) mentions (in Dutch):
De status van gewapend conflict heeft tot gevolg dat op het maritieme deel van OEF het zeeoorlogsrecht van toepassing is. Dit vormt dan ook de juridische grondslag voor het kunnen uitvoeren van boarding operaties, dat een wezenlijk onderdeel is van het maritieme optreden. Onder het zeeoorlogsrecht zijn combattanten bevoegd om neutrale scheepvaart te controleren, om vast te stellen of zij ook daadwerkelijk neutraal zijn. Daarbij wordt onder andere gekeken naar de scheepspapieren en de lading, zodat kan worden bezien of er geen mensen of goederen worden vervoerd ter ondersteuning van de tegenpartij.
[…]…Zoals gebruikelijk bij deelname aan OEF heeft Nederland de ROE voor de Nederlandse militairen zelf geschreven en ter beschikking gesteld aan de andere coalitiepartners. Hoewel CTF 150 deel uitmaakt van OEF en derhalve, zoals gesteld, deelneemt aan een gewapend conflict is alleen het mogen boarden van scheepvaart daarvan een weerslag in de ROE.
- 71.
During the beginning of the operation The Netherlands first did not authorize participating warships to board other vessels, but this changed during the course of the operation. See Leijnse and Weijne 2002, pp. 149–154. Also, in the Letters to Parliament of 27 September 2004 it is stated that:
Bij inspecties treden overigens alle maritieme eenheden van de operatie Enduring Freedom zoveel mogelijk op met instemming van de vlaggenstaat van het te onderzoeken schip. [Inspections will be conducted as far as possible with the consent of the flag State.]
- 72.
- 73.
Tabori-Szabo 2015.
- 74.
Klein 2011, p. 274. Interestingly, with regard to this operation Klein refers to the specific legal basis for action, whereas in fact the specific legal regime may be meant, as the legal basis for the military operation has been clear from the outset.
- 75.
Special Warning no. 120 is printed in Kraska and Pedrozo 2013, p. 95. They also explain that Special Warnings are used by the US to publish information about potential hazards that are caused by the political climate (at p. 88).
- 76.
O’Rourke 2003.
- 77.
Hodgkinson (2007) mentions that LIOs are legitimate as an exercise of self-defence as part of armed conflict. My assumption is that the latter part of the phrase implies the use of the law of naval warfare . In discussing the issue with several US Navy JAGs this point has not become any clearer.
- 78.
Van Dyke 2004, p. 25.
- 79.
This view is also coined by Wendel. Wendel 2007, p. 32.
- 80.
NATO Parliamentary Assembly, Committee Reports 2008 Annual Session (158 DSC 08 E bis)—NATO Operations: Current Priorities and Lessons Learned, para 105. At: www.nato-pa.int/default.asp?SHORTCUT=1476.
- 81.
158 DSC 08 E BIS—NATO Operations: Current Priorities and Lessons Learned, para 105.
- 82.
Kizanis 2008.
- 83.
Cesaretti 2005.
- 84.
Differently than OEF , OAE is a NATO operation with a set of rules of engagement (ROE) that has been drafted according to the usual NATO process of ROE drafting. Instead of coalition ROE, such as in OEF where in principle all states bring their national ROE, NATO ROE are usually one set that applies to all participating states, but with possible caveats attached if States for political, legal or operational reasons cannot concur with the ROE.
- 85.
In the case of Sierra Leone the resolution only authorized inward, not outward bound traffic. See SC Res. 1132 (1997).
- 86.
See para 13 of SC Res. 1973 .
- 87.
In general vessels will be hailed for inspection and directed to a waiting area to await inspection at sea. For different reasons such as that inspection at sea is not opportune due to weather circumstances, because the suspicion endures but needs more thorough inspection, or that prohibited items are found that need to be of leaded, vessels can be diverted to a port.
- 88.
E.g. MTF UNIFIL , Libya , Former Yugoslavia and Haiti .
- 89.
E.g. Libya , after the 2011 conflict, with SC Res. 2146 (2014).
- 90.
E.g. Iraq . The UNSC established a trade embargo of all products exported from Iraq and Kuwait and sale and supply to Iraq and Kuwait. SC Res. 678 relaxed embargo to allow humanitarian supplies. SC Res. 688 ended embargo against Kuwait.
- 91.
SC Res. 713 (1991).
- 92.
SC Res. 757 (1992).
- 93.
SC Res. 1973 (2011), para 13.
- 94.
- 95.
See Chap. 3 on this incident.
- 96.
ECJ, case. no. C-177/95, 27 February 1997.
- 97.
Fielding 1993, pp. 1220–1221. The area of operations for the MIF was established by special warning no. 80 (1990).
- 98.
Although this could have resulted into a completely different enforcement model, military planners derived from the resolution a military activity that resembled traditional maritime embargo operations off the coasts of the targeted State. That decision-makers had a traditional maritime-arms-embargo-type operation in mind when the resolution was adopted, can perhaps be deduced from the fact that there was no opposition against the implementation of these military activities; not even by the Sanctions Committee. In the end, NATO’s maritime operation was conducted only in the central Mediterranean Sea off the coasts of Libya . An established Maritime Surveillance Area (MSA) tied the actual maritime operations area to the Libyan coast. Notifications were sent out to inform the shipping community of the embargo’s existence and to establish a reporting system for vessels that were sailing to or from Libya.
- 99.
SC Res. 1973 (2011) and 2146 (2014). In the Libyan conflict the UNSC did not so much focus on the area of crisis, but authorized measures that could be taken on the territory of each member State. Before revising some paragraphs of Resolution 1970 through the adoption of Resolution 1973, the Council seemed to consider member States’ territory as the main geographical starting point for the embargo. Resolution 1973 then extended to the high seas the powers of member States with regard to the arms embargo (which had already been established by Resolution 1970). For naval enforcement operations at sea, this different ‘expanded authority’ approach brought the operational effect that the embargo could be enforced in the Libyan territorial sea. See more elaborately on this point, Fink 2011a.
- 100.
See for instance in the case of Libya : NAVAREA III 170/11 (081415 UTC Apr 11). Following the adoption of SC Res. 2009, NAVAREA III 170/11 was replaced by NAVAREA III 395/11. With NAVAREA 445/11, the MSA was terminated.
- 101.
During the MIF operations this led to oil smugglers that tried to reach Iranian territorial waters and then proceed to the Strait of Hormuz during which time the MIF was not able to stop them. See Shaw 1999, p. 5.
- 102.
In the case of Libya , the restriction to the high seas resulted in a gap in which vessels could move prohibited materiel from one city to another through the territorial sea only, or entered the Libyan territorial sea through the territorial seas of the neighboring States. When, however, one looks at the geographical limitation of the arms embargo in a wider perspective, including the whole mandate of SC Res. 1973 , one also ends up bringing to light some discrepancy with other authorized operations. The mandate to protect civilians under para 4 of the same resolution, for instance, does not state that enforcement operations have only to take place outside the Libyan territory. On the contrary, this part of the mandate solely focuses on the territory of Libya, which also includes the territorial sea. Maritime operations carried out under this part of the mandate—as long as they would not turn into occupation operations—were allowed to be implemented in the Libyan territorial waters . Since para 4 of Resolution 1973 authorized all necessary means to protect civilians and civilian-populated areas, arguably this could have also been an authority to enter the Libyan territorial sea. However, for the interception operations to be legitimately carried out, the latter should be aimed at stopping a threat to civilians and civilian-populated areas, and not at enforcing UN sanctions .
- 103.
Haussler 2011, pp. 161–211.
- 104.
Kamerbrief inzake beantwoording schriftelijke vragen over de maritime bijdrage aan UNIFIL (Letters to parliament answering written questions on the maritime support to UNIFIL), 11 October 2006.
- 105.
Notification, impartiality and effectiveness.
- 106.
Guilfoyle 2011, p. 84.
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Fink, M. (2018). The Right of Visit. In: Maritime Interception and the Law of Naval Operations. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-249-1_9
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