The Legal Implications of Consensual Boarding

States with large navies that may occasionally wish to board and inspect ships flagged to other States on the high seas (or in an exclusive economic zone) do not have a uniform view on a crucial aspect of so-called ‘consensual boarding’ – i.e. one not relying on the right of visit under Article 110 of the United Nations Convention on the Law of the Sea, but rather conducted with permission. They have different answers to the question: From whom must the permission be sought? Some States believe it is sufficient to seek the permission of the Master, others that it is necessary to obtain the permission of the flag State.

Discuss both: (a) which view is more likely to be correct purely as a matter of law; and (b) which view is sounder legal policy.

In looking to discuss the idea that States with large navies may occasionally wish to board and inspect ships flagged to other States on the high seas (or exclusive economic zones), it is to be appreciated that they do not have a uniform view on a crucial aspect of ‘consensual boarding’ – i.e. one not relying upon the right of visit under Article 110 of the United Nations Convention on the Law of the Sea (UNCLOS) 1982, but instead conducted with permission. This is because it will be considered as to how they have been recognised as having different answers to the question of from whom must the permission to board a particular vessel be sought? The reason for this is that it will be shown that, whilst some States believe it is sufficient to seek the permission of the Master, other States believe that it is necessary to obtain the permission of the flag state with a view to discussing – (a) which view is more likely to be correct purely as a matter of law; and (b) which view is sounder legal policy particularly with regard to the searching for Weapons of Mass Destruction (WMD). Finally, this essay will look to conclude with a summary of the key points derived from this discussion in relation to which the aforementioned views is correct purely as a matter of law and which is sounder legal policy.

For the purpose of this discussion it is to be appreciated that the legal enforcement measures for the purpose of boarding, search and further steps for maritime interdiction presuppose a relationship that is hierarchical due to there being a basic inequality between the entity that looks to enforce the law and the object of the enforcement action taken. [1] Such operations as this commonly look to involve those powers being exercised by the particular authorities that are deemed appropriate from the interdicting state with a view to seeing that order is maintained and also serving to guarantee entities within the jurisdiction of the interdicting state serves to observe the regulations and laws considered to be relevant. [2] In view of countries apparent sovereign equality along with the absence concomitantly of a relationship hierarchically speaking between them, it is to be appreciated that the enforcement jurisdiction’s exercise against another state’s entities without there being unequivocal consent or authority provided by international law’s permissive rule will principally prove to be unlawful in the circumstances. [3] As a result, the international law of the sea has served to provide recognition for the immunity of both warships along with those others that are associated with the government that are run for purposes that are essentially non-commercial. [4] Moreover, with a view to looking to discuss interdiction action so as to be better placed to then combat WMDs transportation illicitly this serves to denote a particular country’s lack of legal authority. [5] In addition, United Nations Security Council (UNSC) Resolution 1540 [6] served to define a ‘non-state actor’ as being what would be referred to as being an “individual or entity” that was not acting under an individual country’s lawful authority in looking to conduct activities involving the transfer or transport, inter alia, of WMDs. [7] Furthermore, as opposed to there being any proliferation by actors that are considered to be non-State addressed by UNSC Resolution 1540, [8] beyond those norms that are included within the treaties of non-proliferation, there is no universally applicable norm that serves to prevent transfers between countries of WMDs as part of the maritime interdiction of ships suspected of WMD trafficking. [9]

Nevertheless, that is not to say that, when it comes to the matter of non-government foreign flagged ships, opportunities for law enforcement will exist necessarily in practice. But issues of enforcement against ships that fly a flag of convenience needs to be covered. [10] This is because, whilst the UNCLOS 1982 states at Article 91 there is a need for there to be a genuine link between a ship flying a particular state’s flag and the state itself, this criteria is not actually a precondition for a given ship’s registration – although it does ensure the flag state’s exercise of jurisdiction and control over the particular ship. [11] Indeed, the UNCLOS 1982 provides at Article 94(6) that, listing the flag state’s duties to exercise both control and jurisdiction over their nationals ships, states are not able to refuse to recognise a ship’s flag because there is no genuine link. [12] Moreover, except where there are several exceptions established in the circumstances of a given case, a ship that is at sail on the high seas is exclusively subject to the state’s jurisdiction whose flag it actually sails under. [13] With this in mind, it should be noted that, with regard to the further relevancy of suspect ships’ status for possible interdiction that 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”. [14]

On this basis, the UNCLOS 1982 at Article 110(1) has served to allow for the exercise of the right of visit, inter alia, against stateless ships [15] or ships that fly a foreign flag or refuse to show a flag, [16] but are actually the same nationality as the interdicting ship. This is because, generally, there is a recognised right of visit of a vessel under Article 110 of UNCLOS 1982 serves to justify the boarding of a foreign ship on the high seas to verify a given ships right to fly its particular national flag if there is reasonable ground for suspecting that the particular ship is engaged in piracy or some other illicit activity. [17] In the event that this is proved to be the case, the courts of the state that undertook the seizure may decide upon the penalties that are to be imposed and the actions to be taken regarding the aforementioned ship subject to the rights of third parties in good faith – although the arrest and prosecution of pirates fall within the precinct of a state’s national law. [18] On this basis, it is to be appreciated that successful prosecution is dependent on whether the corresponding national legal standard exists and the degree the enforcing state has adopted the ‘universal jurisdiction’ over piracy as an international crime that is subject to both arrest and prosecution anywhere in the world. [19] Conversely, under Article 8 of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) 1988 (as amended), it has been recognised that some experts expected that concern over proliferation would then lead a large number of states to ratify the 2005 Protocol to the SUA Convention 1988. [20] That this has proved to be the case is because it has been recognised that the Protocol’s amendments to Article 3 will extend the prohibitions on the transfer or transport of Weapons of Mass Destruction (WMD), whilst amendments to Article 8 will then serve to provide new authority for boarding by states other than those that are labelled as being ‘flag states’. [21]

However, there is also a need to recognise that, whilst demand for interdiction operations may rise appreciably, it is doubtful that, for example, the US Navy or Marine Corps will have authority under American domestic law to take enforcement action under it so that this would then mean that any maritime enforcement internationally would then be carried out by the US Coast Guard. [22] This is because the former American President George W. Bush unveiled the Proliferation Security Initiative (PSI) in Poland at the end of May 2003. [23] PSI was looked upon as a new channel for interdiction cooperation between nations beyond the remit of treaties and regimes of multilateral export control [24] and informally expanded the number of cooperating countries without expanding membership in export control groups. [25] At the end of 2002 under the National Strategy to Combat Weapons of Mass Destruction (WMD) Proliferation the Bush Administration looked to recognise and endorse the significance of countering proliferation and managing the consequences of the proliferation of WMDs transference between nations so the interdiction of related goods has since gained considerably greater prominence. [26] On this basis, US policy in this regard that looked to bring about the effective enhancement of “the capabilities of our military, intelligence, technical, and law enforcement communities to prevent the movement of WMD materials, technology, and expertise to hostile states and terrorist organizations”. [27]

Nevertheless, with a view to bringing about an effective assessment of the PSI’s success, this could also be gauged by the level of completeness of membership in this regard – particularly those countries with what may be considered the highest proliferation of transshipment concerns. It is of substantial concern to many including the US that countries like Pakistan are not members of the PSI. [28] However, some countries that are not ready to sign up as full participants do still participate fully as observers in PSI exercises. [29] Other countries may participate indirectly in interdictions or information exchanges that are related to WMD proliferation without becoming full participants in PSI and the US is seeking to encourage India to join PSI with little success. [30] An additional issue affecting PSI’s successful implementation is the conclusion of agreements for the purpose of ship-boarding particularly with regard to those countries that rely upon ‘flags of convenience’. [31] When a merchant ship registers under a foreign flag for the purpose of avoiding taxes, save on wages or avoid government restrictions it is referred to as a flag of convenience. Flags of convenience are of particular concern for proliferation of reasons because of looser government regulations over their shipments and the ease with which ships can switch from one registry to another with Panama and Liberia said to have the highest volume of global trade under flags of convenience. [32] Nevertheless, despite such problems, the US has looked to sign at least nine ship-boarding agreements that share in the fact that they commonly permit two hours to deny US personnel the right to board a ship regardless of if this was recognised under the UNCLOS 1982 at Article 110. [33]

There is still a need to appreciate, however, that flags of conveniences realities will all too commonly serve to determine ships status [34] so that flag state jurisdiction’s exclusivity is broadly looked upon as being unsatisfactory with regard to the achievement of enforcement effectively. [35] On this basis, it has come to be looked upon as being relatively unsurprising enforcement questions, particularly those that involve other states measures with regard to the inability or unwillingness of flag states to be compliant with international obligations in relation to vessels flying their flag are amongst what are considered to be the law of the sea’s “most intractable questions”. [36] As for the matter of perils of proliferation presently being considered, particular concerns have arisen with regard to the chances for those that would traffic dangerous weapons to take advantage of flags of convenience or utilise ships that are flagged by states that steadfastly refuse to consent to others high seas jurisdiction. [37] With regard to the issue of a flag state’s refused consent, in view of the focus of this essay there is a need to evaluate the controversy surrounding the practice of seeking to request consent from the master of a ship or the flag state itself for the purpose of boarding a given vessel with a view to determining (a) which view is more likely to be correct purely as a matter of law; and (b) which is sounder legal policy. [38] This is because, by way of illustration, whilst practically obtaining the master of a vessel’s consent will serve to significantly diminish the difficulties and dangers that could otherwise serve to confront a non-compliant interdiction operation at sea, legally the significance of a given vessel’s master’s consent has been considered to be subject to some controversy. [39] In addition, although numerous states may consider the vessel’s master’s consent to be sufficient for the purpose of implying flag state consent, other states have looked to adopt the approach that for a boarding to conform with current understandings of international law, there is still a need for explicit prior consent provided for by the flag state. [40]

Clearly, in view of the fact that the issue of ‘consensual boarding’ is the focal point for this essay’s discussion, a number of points need to be made in this regard. For one thing there is a need to have an understanding of the position of a flag state that is seeking the consent of a particular vessel’s flag state because it is not considered to be necessary in the event that the master of the particular ship provides consent to the interdiction. [41] However, this can be subject to questioning in view of the fact that the flag state’s right to be able to exercise jurisdiction exclusively over its vessel except where a limited set of exceptions are found to relate to the flag state as opposed to the master of the given ship. [42] In addition, there is also a need to show an appreciation of the fact that relevant practice usually needs there to be procedures detailed with regard to requests for flag state consent. This is because, whilst it has been recognised that the ship boarding provisions of many interdiction agreements also include procedures which serve to provide for the consent of flag states implicitly, this practice could be looked upon as confirming that, unless it is specifically provided for in practice, then there is a need for consent to be from the flag state explicitly. [43] However, conversely it could prove to be reasonable to argue in specific circumstances that the master of a given ship’s consent could be considered sufficient with a view to then implying the consent of a flag state. [44] This is because a flag state’s domestic legislation could confer upon a given vessel’s master the authority to be able to either grant or deny the consent that is required for specific actions of law enforcement that another state has performed [45] – although the particular nation’s legal regime could require someone like the master on board a given vessel to provide consent as and where it may be needed in the circumstances of a given case. [46]

In addition, whilst there is a need for there to be consent from a given flag state, [47] for example, decades of international maritime drug interdiction practice under which the US Coast Guard’s national authority to undertake the performance of these kinds of interdictions is founded upon legislation that serves to permit flag states to consent to be communicated with informally, and may also include the master of a given vessel’s consent, that has not led to other states protesting. [48] Finally, it is reasonable to hold that whilst, at least in principle, explicit flag state consent is needed, circumstances may serve to vary somewhat with regard to individual nations domestic legislation or

treaty arrangements, the master of a particular vessel’s consent could be taken to serve to imply that the consent of a flag state has actually been given indirectly. [49] However, there is still a need to appreciate that, with regard to as to whether an individual vessel’s master’s consent is sufficient with a view to implying that the consent of a flag state has actually been given, this should not be confused practically with the process of consensual boarding that is being undertaken pursuant to the master of a given vessel’s voluntary consent to be able to then take on board a boarding party. [50] With this in mind, there is also a clear need to look to provide for the recognition of there being a distinction drawn between the consent to be able to exercise jurisdiction of enforcement over a particular foreign vessel along with other actions that do not involve the law’s assertion of a given authority for the purpose of enforcement. [51]

On this basis, it may be considered to be instructive in this regard to look to quote the US Commander’s Handbook on the Law of Naval Operations [52] that serves to explain the way in which the practice of ‘consensual boarding’ is undertaken at the master of a given vessel’s invitation that is not otherwise considered to be subject to the particular boarding officer’s jurisdiction. [53] However, whilst this is a well-established preposition of international law, the master of a particular ship’s voluntary consent serves to allow for the boarding of a vessel by a given authority, it does not permit the assertion of authority for the purpose of law enforcement activities like the arrest of someone on board or the seizure of particular property. [54] This effectively means that the practice of ‘consensual boarding’ is not considered to be an effective exercise of the enforcement jurisdiction that has been provided for through the application of maritime law. [55] But, whilst these ‘other measures’ are not really considered to effectively constitute what is considered to be an exercise of national jurisdiction over a particular vessel in a given case, they could nevertheless prove to be important with a view to then permitting both the safe and prompt ‘(dis)confirmation’ of what is deemed to be a reasonable suspicion of WMDs illegal transport and/or transfer between parties that are based in different countries. [56] However, in the event that suspicions involved with the transfer of WMDs are considered to have been further confirmed in the circumstances, it is arguable that steps could be taken with a view to then bringing about the securing of further legal foundations for the implementing more measures for the purpose of the undertaking of subsequent interdiction. [57]

It is also to be noted a state that acts as a ‘flag of non-compliance’ with regard to its recognised obligations under UNSC Resolution 1540 [58] and refusing to consider providing for consent/cooperation with a request that is made reasonably ad hoc or engage in a negotiation-request with regard to agreements relating to ship boarding for interdiction could be considered to be in breach of the UN Charter 1945 at Article 25 regarding their legal obligations internationally. [59] In the event that a state, whose legitimate request for consent to the interdiction of a ship suspected of trafficking WMDs has unjustifiably been refused, could then have a case that is justiciable that may be brought before the International Tribunal for the Law of the Sea (ITLOS) to then be decided upon. [60] On this basis, so long as both states in a given case are recognised as signatories to the UNCLOS 1982 and have chosen to accept the ITLOS’ jurisdiction under the Convention at Article 290, the state that wants to seek to provide for a particular vessel’s interdiction is able to look to request of the ITLOS for authorisation to act promptly. [61]

In conclusion, it is clear that, as a matter of law at least, there is a need to look to get the consent of the flag state for the purpose of boarding a vessel to search it in order to avoid potential problems in the future relating to the politics of the matter. This is because, as has already been recognised, whilst a particular vessel’s flag state’s consent is not considered to be necessary when the master of the vessel provides consent for an interdiction, [62] this is open to question since the flag state has a right to exercise jurisdiction exclusively over its vessel except where a limited set of exceptions are found to relate to the flag state and not the ship’s master. [63] Moreover, relevant practice usually needs there to be procedures detailed regarding requests for consent from flag states since the ship boarding provisions of many interdiction agreements also include procedures which provide for the consent of flag states implicitly, unless it is specifically provided,there is a need for consent to be from the flag state explicitly. [64] However, this may also provide scope for the contrary argument with regard to which approach is sounder legal policy since the master of a given ship’s consent could be considered sufficient to imply the consent of a flag state. [65] The reason for this is that a flag state’s domestic legislation could confer upon a given vessel’s master the authority to either grant or deny the consent needed for law enforcement that another state has performed [66] – although the particular nation’s legal regime could need someone like the master on a given vessel to provide consent in a given case as and when it arises. [67] As a result, however, it is interesting to note that it may in fact be something of an oxymoron in practice to say that the sounder legal policy in relation to the process of consensual boarding is for the particular ship’s master in a given case to look to give consent because this kind of consensual boarding is still actually derived from the power that is granted to the given vessel’s master by a particular flag state.