The Interception of Vessels on the High Seas

Contemporary Challenges to the Legal Order of the Oceans

Efthymios Papastavridis

• Publisher: Hart Publishing
• Year: 2014
• Print ISBN: 9781849466646
• eBook ISBN: 9781782250852
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The principal aim of this book is to address the international legal questions arising from the 'right of visit on the high seas' in the twenty-first century. This right is considered the most significant exception to the fundamental principle of the freedom of the high seas (the freedom, in peacetime, to remain free of interference by ships of another flag). It is this freedom that has been challenged by a recent significant increase in interceptions to counter the threats of international terrorism and WMD proliferation, or to suppress transnational organised crime at sea, particularly the trafficking of narcotics and smuggling of migrants. The author questions whether the principle of non-interference has been so significantly curtailed as to have lost its relevance in the contemporary legal order of the oceans. The book begins with an historical and theoretical examination of the framework underlying interception. This historical survey informs the remainder of the work, which then looks at the legal framework of the right of visit, contemporary challenges to the traditional right, interference on the high seas for the maintenance of international peace and security, interferences to maintain the 'bon usage' of the oceans (navigation and fishing), piracy j'ure gentium'and current counter-piracy operations off the coast of Somalia, the problems posed by illegal, unregulated and unreported fishing, interdiction operations to counter drug and people trafficking, and recent interception operations in the Mediterranean Sea organised by FRONTEX.

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Introduction

I. INTRODUCTORY REMARKS: ENQUIRING MARITIME INTERCEPTION ON THE HIGH SEAS

MARITIME INTERCEPTION, OR the right of visit, as it is called under the UN Convention on the Law of the Sea (article 110),¹ is the most significant exception to the fundamental principle of the freedom of the high seas, which is predominantly of a negative nature. According to the UN Memorandum on the Regime of the High Seas (1950):

The freedom of the high seas, essentially negative, may nevertheless contain positive consequences . . . All maritime flag-States have equal right to put the high seas to legitimate use. But the idea of the equality of usage comes only in second place. The essential idea underlying the principle of freedom of the high seas is the concept of the prohibition of interference in peacetime by ships flying one national flag with ships flying the flag of other nationalities.²

From this prohibition of interference with non-national vessels flows the principle of exclusivity of flag-state jurisdiction, namely that ships on the high seas are, as a general rule, subject to the exclusive jurisdiction and authority of the state whose flag they lawfully fly.³ This principle is firmly rooted in the axioms of state equality and of the freedom of the high seas.⁴ However, it is not an absolute rule from which no derogation is permitted. On the contrary, international law has recognised since the inception and consolidation of mare liberum certain instances where interference is permissible. Piracy, slave trade and illegal fishing are a few examples of cases, which have involved the exercise of the right of visit of foreign vessels on the high seas in peacetime, while it is undisputed that belligerent states may exercise this right against enemy and neutral merchant vessels in wartime.

Recently, the number of cases in which this right is exercised has significantly increased, with the result that the negative concept of the freedom of the high seas is, arguably, challenged. Besides the unexpected rise of piratical acts off the coast of Somalia since 2008 and more recently in the Gulf of Guinea,⁵ states have become increasingly involved in intercepting vessels on the high seas to counter threats, such as smuggling of migrants, drug trafficking, and the proliferation of weapons of mass destruction (WMD) at sea. Several partnerships in various forms have been established to this end, such as the Proliferation Security Initiative (PSI)⁶ or the Agency for the Management of Operational Cooperation at the External Borders of the European Union (FRONTEX),⁷ as well as numerous agreements concluded concerning the interdiction of suspect vessels in this regard. The 2005 SUA Protocol,⁸ the 2000 Smuggling Protocol⁹ and the 2008 CARICOM Maritime and Airspace Security Agreement¹⁰ are the principal examples of such multilateral treaties. Concurrently, the notion of mare clausum, namely that the high seas are subject to the appropriation of states, seems to have been reinvigorated, not in the traditional sense of claims for maritime dominion, but rather in the sense of claims for more functional jurisdiction on the high seas¹¹ or in the sense of a common ‘responsibility for the seas’ in an era of mare crisium.¹²

In essence, this book examines some of the legal issues that the relevant state practice has brought to the fore and thus aims at contributing to the current legal discourse on maritime interception on the high seas.¹³ Its principal theoretical question is: how can the various grounds of interference with foreign vessels on the high seas, especially the foregoing regarding WMD, illicit migration and drug trafficking, be theoretically conceptualised and legally justified under a coherent regulatory order of the oceans? Given that none of these issues, but for privacy, are addressed by the pertinent provision of LOSC (article 110), it is questioned to what extent the legal order of the oceans, which is predicated upon the principle of non-interference on the high seas, can accommodate such claims for enforcement jurisdiction on the high seas. It is the purpose of this book to respond, inter alia, to this question and ascertain the role and the significance of these interception activities for the contemporary legal order of the oceans. In addition, it will endeavour to delineate the legal contours of interception operations on the high seas and address the question whether a new ‘law of interdiction or interception’ is emerging. Furthermore, it will provide a detailed appraisal of contemporary maritime interception operations against the background of both the law of the sea and general international law.

The overarching tenet of the present enquiry is that the oceans are subject to a certain organisational and regulatory scheme premised upon both negative and positive legal principles, which can aptly be designated as a ‘legal order of the oceans’.¹⁴ The latter term resembles the original conception of Myres McDougal and William Burke of ‘public order of the oceans’; however, it is neither coterminous in substance, nor does it bring along the public policy considerations enshrined in these authors’ work.¹⁵ On the other hand, it shares some characteristics without, however, being identical to the notion of ‘ocean governance’,¹⁶ which is premised more upon concepts, such as ‘common heritage’, ‘public trusteeship’, ‘global commons’ or ‘public interest’, rather than fundamental norms, such as the principle of non-interference, the nationality of vessels, the conservation and management of the marine living resources, and the protection of the marine environment.¹⁷ These norms constitute the ‘Grundnormen’ of this legal order, in the sense that they are the cornerstones, against which any relevant legal development is assessed and further elaborated.¹⁸ In addition to the above principles pertaining to the law of the sea, the legal order of the oceans consists also of norms of general international law, such as the prohibition of unnecessary and disproportionate use of force and the protection of fundamental human rights and of humanitarian law.¹⁹

II. CONTEMPORARY CHALLENGES TO THE FREEDOM OF THE HIGH SEAS AND MARITIME INTERCEPTION

A. Terrorism and WMD

In general, most instances of interference on the high seas pertain to the following issues: first, to the threats posed by international terrorism and by the proliferation of WMD,²⁰ which have been the object of much public and academic concern as well as of numerous unilateral or multilateral efforts by individual states and by international organisations.²¹ The PSI has a pivotal role in this regard. Initially conceived as a ‘collection of interdiction partnerships’ among 11 core members,²² it has subsequently expanded to a multifaceted international effort to combat the transfer of banned weapons and weapons technology, receiving the support of another 80 states.²³ In addition, reference should be made to UN Security Council Resolutions 1373 (2001)²⁴ and 1540 (2004),²⁵ the IMO SOLAS Amendments²⁶ and the 2005 SUA Protocol, the NATO Operation Active Endeavour²⁷ and a plethora of other unilateral and bilateral measures in this regard.²⁸ In terms of the number of interdictions, suffice to note that in the course of NATO’s ‘Operation Active Endeavour’ alone, ‘NATO forces . . . hailed more than 100,000 merchant vessels, boarding some 155 suspect ships’.²⁹

The so-called ‘War on Terror’, triggered by the shattering event of ‘9/11’, has also led to operations involving the use of force, such as the armed intervention in Afghanistan in October 2001.³⁰ In the course of the latter campaign, named ‘Operation Enduring Freedom’ the states involved were considerably engaged in visitations of suspect vessels on the high seas, similar to interceptions in the course of NATO’s ‘Operation Active Endeavour’ in the Mediterranean Sea.³¹ There is, however, an important legal difference between these operations, which lies in the fact that the states parties to the armed conflict in the territory of Afghanistan enjoyed ipso facto the belligerent right of visit and search on the high seas. Suffice it also to include in this category the Israeli operation off Gaza Strip in 2010³² which involved interdiction measures on the high seas justified under the rules of the law of war, as well as Operation Unified Protector in Libya in 2011.³³

B. Drug Trafficking

Similar enforcement measures on the high seas are often exercised in the context of drug trafficking.³⁴ Although a wide variety of methods are utilised by drug traffickers in plying their trade, the use of private and commercial vessels has long been significant. This is particularly the case with drugs such as cocaine, opium and its derivatives, and cannabis, all regulated by the Single Convention on Narcotics Drugs, as amended,³⁵ where transportation from source to consumer country frequently involves passage over ocean areas.³⁶ For example, given its relative widespread availability and low cost, the vast majority of marijuana and cocaine entering the US from abroad is said to be transported by private vessels.³⁷ As is reported by the UN Office on Drugs and Crime (UNODOC),

For the North American market, cocaine is typically transported from Colombia to Mexico or Central America by sea and then onwards by land to the United States and Canada. Cocaine is trafficked to Europe mostly by sea, often in container shipments. Colombia remains the main source of the cocaine found in Europe, but direct shipments from Peru and the Plurinational State of Bolivia are far more common than in the United States market.³⁸

Also, the means employed by the drug-traffickers in Central America have become highly sophisticated: apart from ‘go-fast’ vessels,³⁹ they use semi-submersible vessels, which are almost impossible to be properly stopped and visited.⁴⁰ Such vessels are ‘both difficult for the Coast Guard to detect and easy for crewmembers, who often prefer losing their cargo to being caught, to sink. At the first sign of the Coast Guard, drug traffickers can quickly sink the vessel and jump into the ocean, which destroys the evidence necessary to prosecute them for a drug offense . . .’.⁴¹

This traffic by sea has led to various initiatives taken by those states most affected, such as the US and European countries. Central to this has been the policy of interception of vessels not only in the territorial waters of the consumer states, but also on the high seas and even further in the territorial waters of the source or transit States. This policy has been effectuated either through informal means, ie ad hoc consent of the flag state or of the vessel’s master (consensual boarding), or through bilateral and multilateral treaties, such as the Caribbean ship rider agreements⁴² and the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, respectively.⁴³

C. Illicit Migration

Another realm, where the interception of vessels on the high seas looms large, pertains to illicit migration and asylum. It is a truism that the high seas have always furnished a way to safety for potential asylum-seekers or forced migrants. In the last century alone, the world witnessed the plight of Jewish refugees fleeing Nazi persecution before World War II,⁴⁴ the ‘boat people’ from Indochina during the 1970s⁴⁵ and, more recently, the thousands of Haitians and Cubans travelling to the United States⁴⁶ and many of diverse nationalities heading to southern Europe across the Mediterranean Sea.⁴⁷ Episodes like the Tampa⁴⁸ and the Monica,⁴⁹ which involved asylum-seekers at sea, have attracted notable media coverage and triggered serious academic and political debate.⁵⁰ Given that the prime concern of these people is to flee from their country of origin, rather than to flee to any particular place, it is not surprising that they flee by whatever means possible, including overcrowded and unseaworthy vessels.⁵¹ Such vessels will often be at risk of sinking and indeed many do sink, with the result that thousands of lives are lost every year.⁵² This has been particularly noticeable in the period since January 2011, which has seen an increase in departures of migrant boats from North Africa and, allegedly, at least 1,500 persons have lost their lives while trying to cross the Mediterranean.⁵³ Currently, there is a mass exodus of Syrian nationals fleeing from their country often by boats due to the deteriorating security situation in Syria.⁵⁴

It is evident that in the contemporary era the focus of most, especially developed, states has predominantly shifted to preventing asylum-seekers or illicit migrants from reaching their territory.⁵⁵ Amongst the ‘non-arrival’ policies employed to this end,⁵⁶ a primary role is attributed to interception, which has attained even more vigour recently in the light of the adoption of the Smuggling Protocol, as well as of the relevant practice of states, like Australia,⁵⁷ the US⁵⁸ and various European states.⁵⁹ The latest example is manifestly the 2009 ‘push-back’ operations conducted by Italy in cooperation with Libya in the central Mediterranean Sea.⁶⁰

A central role in the interception of asylum-seekers or illicit migrants has been ascribed to FRONTEX, which was established in 2004 to help EU Member States in implementing community legislation on the surveillance of the EU b...

Table of contents

• Cover
• Title
• Copyright
• Foreword
• Preface
• Acknowledgements
• Contents
• List of Abbreviations
• Table of Cases
• Table of Treaties and Other International Agreements
• 1. Introduction
• 2. The Theoretical Framework of the Right of Visit on the High Seas: Mare Liberum v Mare Clausum Revisited
• 3. The Law of Maritime Interception on the High Seas
• 4. Interception on the High Seas in the Context of Peace and Security: The Right of Visit in Cases of Armed Conflict and Security Council’s Action
• 5 Contemporary Challenges to the International Peace and Security: International Terrorism and the Proliferation of Weapons of Mass Destruction
• 6 Maritime Interception to Safeguard the Fundamental Freedoms of the High Seas
• 7 Interception on the High Seas to Counter Drug Trafficking
• 8 Interception on the High Seas and Human Beings
• 9 Conclusions
• Bibliography
• Index