How to inspect suspicious vessels at sea? Irini's Puzzle

(B2) Screening vessels suspected of breaking the arms embargo on Libya is not easy. What rules apply. Point as complete as possible

The European maritime operation Irini, set up to control the arms embargo in Libya, certainly has a mandate from the UN Security Council. But it must also act within the framework of international rules. The Convention on the Law of the Sea (UNCLOS) notably establishes a few principles that European ships cannot infringe.

In which cases does the law of the sea authorize a right of forcible visit?

The right of boarding is strictly limited by the convention on the law of the sea. Thus a warship — or a ship carrying out a public service mission — which crosses a foreign ship on the high seas (other than a ship with immunity)" can't arrest him only in five possibilities (article 110 UNCLOS).

Three cases are provided for because of an offense considered serious under the law of the sea:

1. piracy;
2. transportation of slaves;
3. unauthorized broadcasts [= pirate radio-televisions].

The other two are in fact linked to the ship's flag, independent of any other act.

1. vessel without nationality;
2. ship which actually has the same nationality as the warship (which is carrying out the control), " although it flies a foreign flag or refuses to fly its flag ».

Are there other cases?

There is also a right of inspection in the event of infringement of fishing rights (illegal fishing, without title, etc.) or damage to the environment (pollution, etc.) in the coastal zone or the exclusive economic zone ( EEZ). Another possibility is also provided for the fight against drug trafficking.

NB: We could thus - if a suspicion of drug trafficking is possible - search this ship for this reason. But you have to have solid evidence. If nothing is found, the ship concerned will have to be compensated.

No other visit possible without agreement?

Apart from these specific cases — expressly provided for either by the convention on the law of the sea, or by another convention — no inspection of a ship can be carried out without the authorization either of the captain of the ship, or failing that Flag State or State of Registry.

All the law of the sea is indeed governed by the rule of the flag State. It is he who determines the applicable jurisdiction. " Ships sail under the flag of a single State and are subject, except in exceptional cases expressly provided for by international treaties or by the Convention, to its exclusive jurisdiction on the high seas.. (article 92 UNCLOS).

Really none?

In fact, if we suspect that a ship is using the wrong flag, we can go on to inspect the ship, without necessarily obeying one of the previous cases, or having any authorization whatsoever. Same thing if the flag State, questioned, does not confirm quickly enough.

A provision implicitly provided for by the agreement. " A ship which sails under the flags of several States, which it uses at its convenience, cannot claim, vis-à-vis any third State, any of these nationalities and may be assimilated to a ship without nationality.. (article 92-2 UNCLOS). Very clearly, a vessel that changes flag en route is thus considered suspicious. In fact, he can only do this under two hypotheses: in the event of actual transfer of ownership or change of registration (article 92-1 UNCLOS). Otherwise " no change of flag can occur during a voyage or a stopover ».

It is this legal trick that had been used - according to our information - to be able to control ships in the Mediterranean whose flag was doubtful, within the framework of the previous operation of Irini, the operation EUNAVFOR Med Sophia.

Who can exercise control: a warship or any ship?

Warships are normally the only ones who can provide this control. By extension, other public power vessels are assimilated: “ any other vessel or aircraft duly authorized and bearing exterior markings clearly indicating that it is on public service (article 110-5 UNCLOS). For example, a Coast Guard or Fisheries Guard, Police, Customs, etc. vessel.

Can an airplane exercise this control?

Yes. A military aircraft, or aircraft performing a public service mission, also has all the powers indicated (article 110-4 UNCLOS).

Flagrante delicto or suspicion?

The fact does not need to be proven (flagrante delicto), it suffices to have " serious reason to suspect » that this ship carries out these acts (article 110-1 UNCLOS).

Which ships can never be controlled?

It is a principle that should never be forgotten: a warship enjoys " on the high seas complete immunity from jurisdiction ". An immunity that plays vis-à-vis any State, other than the flag State (article 95 UNCLOS).

This principle has a derivative, sometimes forgotten. This immunity extends to ships owned or operated by a state and used exclusively for government non-commercial service (article 96 UNCLOS).

NB: In other words, you can never control a warship. Or else... it's an act of war, with all the consequences that entails. In the case of Circin, a Turkish vessel flying the Tanzanian flag chartered by the Turkish State, it is this immunity that prevents any inspection (see box).

How does visitation work?

The warship may proceed the verification of the titles authorizing the wearing of the flag ". He can hurry a boat, under the command of an officer, near the suspect vessel ».

If, after checking the documents, the suspicions remain, it can "pursue the examination on board the vessel, acting with all possible regard ". (article 110-2 UNCLOS)

If the visit is not justified, a claim for compensation may be sent by the ship concerned. (article 110-3 UNCLOS)

Customarily, any visit or inspection on board is preceded by a radio (VHF) or verbal exchange with the ship's captain, in order to proceed with a request for information. When there is a desire to visit the ship, there is a request made to this captain to be able to come on board. Request which can be 'insistent'. The 'rise in strength' is therefore only very exceptional.

Who has final authority over a merchant ship?

It is then up to the flag State to have the possibility, and even the obligation (in the event of a binding resolution of the United Nations Security Council) to ensure the control, or even the prosecution for violation of the arms embargo on 'his' ship. It can thus lead (a posteriori) investigation.

Any State which has reasonable grounds to believe that proper jurisdiction and control over a vessel has not been exercised may report the facts to the flag State. Once notified, the latter conducts an investigation and takes, if necessary, the necessary measures to remedy the situation.

(Nicolas Gros-Verheyde)

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Application to the case study of Cirkin

Turkey respects the law of the sea

Fact, in the case of Circin, Turkey has not violated the law of the sea as such (*). She had every right to answer 'No' to the repeated requests from the French and Greek frigates. A very procedural respect.

...but violates UN resolutions

On the merits, Turkey has clearly violated the resolutions of the UN Security Council on the control of the arms embargo, put in place in the spring of 2011, at the start of the civil conflict. Libyan. The same is true of Tanzania (Flag State)

Each State undertakes in fact: to have ships and aircraft coming from or bound for [Libya] inspected on their territory, including in their seaports and airports and on the high seas. This, if the State " has information that reasonably suggests that such shipment contains items the supply, sale, transfer and export of which are prohibited by UN resolutions. (§ 13 of resolution 1973 of March 17, 2011)

Tanzania, flag state, also in the line of fire

For armed mercenaries, all flag or registry states of such ships and aircraft must indeed “ cooperate with any inspections and authorize Member States to take any measures dictated by the existing situation to carry out such inspections ».

Other states in the dock?

Note that this violation also concerns the United Arab Emirates, Egypt or Jordan. Three of the main countries cited, with Russia and Turkey, as suppliers of arms to belligerents, in UN reports. In a more indirect way, several European countries could also be incriminated indirectly — United States, France, Italy, or the Netherlands, etc. — who have not closely monitored or allowed certain arms re-exports to take place.

(NGV)

* Note that Turkey, like Israel, Syria, Russia or the United States, have not ratified this convention.

Read also:

• The Cirkin was not at its first attempt. A French ship illuminated by radar
• Turkish-escorted freighter suspected of violating arms embargo (v3)

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NB: this is a summary of the commonly accepted rules allowing everyone to understand the action framework of Operation Irini. It is by no means a course in maritime law, which conceals a number of nuances and subtleties, which I leave to aesthetes.

Updated to correct a typo on unauthorized emissions (concerns pirate radio and not in pollution which is in another paragraph), clarify § on indirect arms deliveries