Marine Policy 28 (2004) 41–66

ARTICLE IN PRESS

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doi:10.1016/j.ma

Initiatives to enhance maritime security at sea

J. Ashley Roach*,1

Office of the Legal Adviser, US Department of State, 2201 C Street, NW Washington, DC 20520-6417, USA

Abstract

There are myriad threats to maritime security, including hijacking, murder, narcotics trafficking, migrant smuggling, support for

terrorist organizations and transport of dangerous weapons. To enhance maritime security, the principles of co-operation and flag

state jurisdiction provide the legal foundation for ship boarding and enforcement. Such co-operation should include boarding states

promptly seeking, and flag states promptly confirming, claims of nationality, and, where reasonable indications of illicit activity

exist, authorizing boarding and search, or doing so themselves. Proposed amendments to the SUA Convention will clarify the

Convention’s role in combating violence at sea, require States to criminalize such behavior, and establish uniform standards for

responding to maritime terrorism.

Published by Elsevier Ltd.

Keywords: Maritime security; Threats; Initiatives; SUA Convention Amendments

1. Introduction

While the events of September 11, 2001 have broughtto fore the issue of maritime security, it is not a newissue of major concern. As illustrated by the followingexamples, maritime security at sea continues to bethreatened in many ways. These threats include not onlythe movement of terrorists and their means of financing,and the shipment of weapons of mass destruction andconventional arms, but also the smuggling of drugs andmigrants, and piracy and armed robbery at sea. Theinternational community has so far responded indifferent ways to these varied threats. Their connectionto organized crime and terrorists is only now becomingevident. Yet there are basic similarities in the legal basisfor responding to these threats at sea.

In mid-July 2002, the Canadian Navy handed overtwo suspected al Qaeda members to US forces from oneof three speedboats in the Gulf of Oman that fled whenHMCS Algonquin and French Navy warship Guepratte

sought to identify the persons on board [1,2].

-647-1646.

ss: jaroach@attglobal.net (J.A. Roach).

pressed in this paper are submitted in the author’s

y and do not necessarily represent the position of any

gency of the United States Government. The author

preciation to Lieutenant Brad Kieserman USCG for

the preparation of this paper.

e front matter Published by Elsevier Ltd.

rpol.2003.10.010

It has been reported that al Qaeda owns or controlsabout 15 cargo ships that could be used as floatingbombs against cruise ships and other high interestvessels, or to smuggle explosives, chemical or biologicalweapons, such as a radioactive dirty bomb into a USport, or to transport al Qaeda members into a thirdcountry. US forces are reported to be tracking theseships [3–5].

On December 9, 2002, the Spanish Navy boarded amerchant ship bearing the name So San in the IndianOcean and discovered 15 Scud missiles hidden on board.On December 11th, the vessel was released andproceeded to Yemen where the missiles were off loaded.

On the morning of December 25, 2002, four Cubancrewmembers armed with knives hijacked the 178-footPanamanian-flagged coastal freighter Sabrax in anattempt to direct the vessel to Puerto Rico and claimasylum. The following day the US Coast Guard boardedthe vessel in international waters about 35 nautical miles(nm) ENE of the Dominican Republic and successfullytook control of the vessel from the hijackers. The UnitedStates ultimately repatriated the Cubans to Cuba.

During July 2002, nine crew from the People’sRepublic of China (PRC) allegedly hijacked the Taiwanflag vessel Chern Maan Shyang I. The US Coast Guardintercepted the vessel 40 nm SW of Guam. TheTaiwanese engineer and one PRC assailant had beenkilled during an altercation. The US Coast Guard

ARTICLE IN PRESSJ.A. Roach / Marine Policy 28 (2004) 41–6642

conducted a medical evaluation of the master, whosuffered significant stabbing injuries. Taiwan officialsdetermined the case to be a labor dispute matter andTaiwan authorities arrived on August 5, 2002 to pilotthe vessel back to Taiwan.2

In March 2002, the US Coast Guard intercepted the192-foot Seychelles-flagged fishing vessel Full Means 2

180 nm SSE of Hilo, Hawaii. The US Coast Guardfound the body of the PRC first mate in the ship’sfreezer and the Taiwan master was missing. One of the32 PRC crew apparently murdered the master and firstmate over a personal dispute. The rest of the crew wasable to overpower the alleged murderer, put him in astateroom and welded the door shut. The US CoastGuard eventually turned the vessel and surviving crewover to the Taiwan authorities after the Federal Bureauof Investigation (FBI) completed a homicide investiga-tion. The United States is presently trying the allegedmurderer in Federal Court in Hawaii.3

On July 28, 1995, the US Coast Guard seized thePanamanian-flag long-line fishing vessel Nataly I andthe 12 tons of cocaine it was carrying. The vessel waslocated in international waters near the GalapagosIslands approximately 780 nm off the coast of Peru.The master and nine crew members were tried andconvicted in US Federal Court of possession of cocainewith intent to distribute on board a vessel.4

On February 7, 2002, the US Coast Guard interdictedthe Ecuadorian-flag fishing vessel Esperanza 318 nmWNW of Manta, Ecuador attempting to smuggle 141undocumented and illegal aliens into the United States

2Between June 2000 and December 2002, the US Coast Guard

encountered 19 Taiwan long-line fishing vessels involved in hijackings

or planned illegal migrant smuggling to the United States. Most of

these cases involved acts or threatened acts of violence in maritime

navigation. Examples include the presence of an improvised explosive

device on one vessel, at least four migrants who drowned attempting to

swim ashore, and four masters and engineers murdered by crewmem-

bers. The genesis of the violence varied from labor disputes turned

violent to attempted migrant smuggling events to mutiny and

hijacking. While the facts of the cases varied, the typical case involved

an alleged hijacking of Taiwan vessels by PRC nationals serving as

crew. The hijacking was usually followed by the crew diverting the

vessel to US waters (Guam, Hawaii, or California), and then jumping

ship and swimming to shore. Several cases involved the deliberate

grounding of Taiwan vessels in US waters, which presents significant

pollution and marine safety risks. See, e.g., [6–9].

Canada has experienced similar cases involving alleged hijacking

and migrant smuggling. See e.g., [9].3United States v. Shi Lei et al., Press Release US Attorney District of

Hawaii March 21, 2002, available at http://www.usdoj.gov/usao/hi/pr/

2002/0203lei.html; id., April 4, 2002, available at http://www.usdoj.

gov/usao/hi/pr/2002/0204shi.html (last visited January 20, 2003); IMO

Circular letter No. 2466, April 23, 2003, Communication received from

the United States of America regarding provision of information

required under the 1988 SUA Convention and the 1988 SUA Protocol.

See also [10].4United States v. Richard Klimavicius-Viloria, et al., 144 F.3d 1249

(9th Cir. 1998); http://laws.findlaw.com/9th/9650546.html.

via Guatemala and Mexico. In addition to the 106Ecuadorians and 16 Peruvians aboard Esperanza, USauthorities also located 19 Iraqi nationals attempting toenter the United States illegally. The US Coast Guardultimately took control of the vessel and redirected it toManta, Ecuador for further investigation by Ecuadorianauthorities.5

The foregoing examples suggest the range of situa-tions in which foreign officials might board private orcommercial ships in international waters. This paperfocuses on the legal bases for such shipboardings.

2. The threats

2.1. Movement of terrorists and their means of financing

One consequence of the defeat of the Taliban and alQaeda in Afghanistan has been the dispersal of thesurviving forces. Some of these persons may haveescaped by sea [14–16]. It appears that al Qaeda has anumber of freighters under its control that could be usedto ferry operatives, bombs, money and commodities[17,18].

2.2. Shipment of weapons of mass destruction and

conventional arms

It has become evident that some countries usemaritime means to ship conventional arms that couldbe destined for terrorists (see [1,2]). Countries and non-State actors could use the same means to transportweapons of mass destruction and their componentparts.6

5Migrant smuggling often results in death. In a different case

involving another vessel named Esperanza, 20 people died and an

estimated 17 people were missing from a boat that sank in the

Caribbean in March 2001 during a drug and migrant smuggling

venture. American, Dutch, and French authorities searched for

survivors and two people from the 40-foot wooden boat after it sank

about 1.5 nm off French St. Martin after attempting a smuggling run

from the Dominican Republic to the US Virgin Islands. See [11].

In addition to overt migrant smuggling, the United States has

experienced a steady and continuing flow of crew absconders and

deserters from otherwise legitimate merchant vessels. Crew absconders

are those crewmembers that, not having permission to land in the

United States, nevertheless jump ship to gain illegal entry. Crew

absconders undermine the integrity of national borders, show

disregard for the rule of law, and potentially compromise national

security and sovereignty. In contrast to absconders, crew deserters are

those crew members who have legally landed but fail to return to their

vessel and unlawfully remain in the United States. See [12,13].6The Proliferation Security Initiative is a response to this threat. See

‘‘Remarks of the President [of the United States] to the People of

Poland,’’ May 31, 2003, available at http://www.whitehouse.gov/news/

releases/2003/05/20030531-2.html (‘‘When weapons of mass destruc-

tion or their components are in transit, we must have the means and

authority to seize them. So today I announce a new effort to fight

proliferation called the Proliferation Security Initiative. The United

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9See the material on the web site of the Alien Migrant Interdiction

Branch of the US Coast Guard, http://www.uscg.mil/hq/g-o/g-opl/

mle/AMIO.htm.10See the material on the web site of the UN Office of Drugs and

Crime, http://www.unodc.org/odccp/index.html, and of the Drug

Interdiction Branch of the US Coast Guard, http://www.uscg.mil/hq/

g-o/g-opl/mle/drugs.htm. The basic international instrument is the

United Nations Convention against Illicit Traffic in Narcotic Drugs

and Psychotropic Substances, Vienna, December 20, 1988, 1582 UNTS

95, UN Doc. E/CONF.82/15 and Corr. 1 & 2, 28 I.L.M. 497 (1989),

J.A. Roach / Marine Policy 28 (2004) 41–66 43

2.3. Piracy and armed robbery at sea

The increasing number and seriousness of attacksparticularly against merchant shipping in transit and inport by hijacking, homicide, robbery and theft, and theconsequential enhanced risk of collision and majorenvironmental damage increasingly threaten peacefulmaritime commerce in many areas of the world. Thesecriminal attacks are most prevalent in South East Asiaand the Far East, in Brazil and Ecuadorian ports; in andaround the Indian sub-continent; in certain ports inWest Africa, notably Nigeria, and in east and north-eastAfrica, especially in the waters off Somalia.7

When these criminals seize a vessel, the vessel’soriginal flag is often removed and replaced with thatof another State. This is a problem not only for flagStates, legitimate crews, ship owners, and Protectionand Indemnity Clubs, but for coastal States as well.Piracy and armed robbery at sea impacts bothcommercially and privately held vessels. Reports ofincreasing involvement by organized criminal gangs,working across borders, points to the need to view sucharmed attacks in a broader context.

Many of these attacks seaward of the territorial seacan be classified as traditional acts of piracy, over whichall States may exercise jurisdiction. Other attacks,however, do not legally qualify as piracy. When theyoccur in port or at anchorage, they are most likelyproscribed and punishable by the municipal criminallaw of the coastal State. When the acts endanger thesafety of navigation and occur on board foreign flagships while underway in the territorial sea, internationalstraits or international waters, these acts are frequentlynot proscribed nor punishable by the criminal laws ofthe coastal State or any potential intervening State.

2.4. Migration by sea

Interlinked transnational gangs traffic by land and bysea an estimated four million people every year as‘‘human cargo’’. The annual earnings from this traffick-ing have reached US$5–7 billion.8

For many years, the United States has operated anactive program to combat illegal and unsafe migration

(footnote continued)

States and a number of our close allies, including Poland, have begun

working on new agreements to search planes and ships carrying

suspect cargo and to seize illegal weapons or missile technologies. Over

time, we will extend this partnership as broadly as possible to keep the

world’s most destructive weapons away from our shores and out of

the hands of our common enemies.’’) and the Chairman’s Statement at

the Brisbane Meeting, July 9–10, 2003, available at http://www.dfat.

gov.au/globalissues/psi/ (visited August 17, 2003).7See generally the website of the IMB Piracy Reporting Centre,

http://www.iccwbo.org/ccs/menu imb piracy.asp.8See http://www.odccp.org/palermo/theconvention.html.

by sea.9 Many other countries share the problem ofcombating illegal and unsafe migration by sea, particu-larly, in recent times, States on the northern shores ofthe Mediterranean. The problem is aggravated becausemost of the vessels transporting migrants are grosslyoverloaded or manifestly unsafe. European States haverecently instituted a program similar to that of theUnited States [19].

2.5. Drug smuggling by sea

The problem of the smuggling of drugs by seacontinues to receive international attention.10 Seizuredata continues to indicate that a substantial proportionof the total quantity of drugs seized is confiscated frommaritime modes of conveyance or has been transportedby sea. Maritime narcotic trafficking has developed into amajor transnational organized criminal endeavor consist-ing of many individual enterprises of varying size andorganization. Moreover, terrorist groups are increasinglyusing drug trafficking as a source of revenue [20].

3. International responses

The international community has responded invarious ways to these threats to maritime security.

3.1. Al Qaeda and the Taliban

The initial responses by the United States and theinternational community as a whole to the attacks ofSeptember 11, 2001, were to invoke the rights ofcollective and individual self-defense against al Qaedaand the Taliban.11 To the extent al Qaeda and the

entered into force November 11, 1990 (1988 Vienna Drug Convention).11UN Security Council Resolutions 1368, September 12, 2001; 1373,

September 28, 2001; and 1390, January 16, 2002, available at http://

www.un.org/terrorism (visited August 16, 2003). These resolutions also

call on all States to cooperate and suppress terrorist acts. SC

Resolution 1373 requires all States to deny safe haven to terrorists,

to prevent those who finance, plan, facilitate or commit terrorist acts

from using their respective territories for these purposes, and to

prevent the movement of terrorists or terrorist groups. Resolution

1390 requires all states to prevent the use of their flag vessels by al

Qaeda, the Taliban and other individuals, groups, undertakings and

entities associated with them.

The North Atlantic Council, for the first time, invoked Article 5 of

the NATO Treaty, April 4, 1949, 4 Bevans 828, 34 UNTS 243, which

ARTICLE IN PRESSJ.A. Roach / Marine Policy 28 (2004) 41–6644

Taliban continue to pose a threat of imminent attackagainst the United States and US interests, theseauthorizations continue to provide a legal basis foractions against those threats.12

However, not all threats at sea are similarly situated.There have been other responses.

3.2. Maritime security13

The International Convention for the Safety of Life atSea was amended in December 2002 by the adoption,inter alia, of the International Ship and Port FacilitySecurity Code.14

On June 28, 2002, the World Customs Organizationunanimously passed a resolution that will enable portsin all 161 of the member nations to begin to developprograms using the US Customs Service ContainerSecurity Initiative (CSI) principles, including collectionof data concerning both outbound shipments inelectronic form, use of risk management to identifyand target high risk shipments, and use of radiation

(footnote continued)

provides that an armed attack against one or more of the Allies in

Europe or North America shall be considered as an attack against all.

‘‘Statement by the North Atlantic Council,’’ NATO Press Release

(2001)124, September 12, 2001; ‘‘Invocation of Article 5 confirmed,’’

NATO Update October 2, 2001; ‘‘Statement to the Press by NATO

Secretary General, Lord Robertson, on the North Atlantic Council

Decision On Implementation of Article 5 of the Washington Treaty

following the 11 September Attacks against the United States,’’

October 4, 2001; available at http://www.nato.int/docu (visited

January 19, 2003). On September 21, 2001, the OAS Foreign Ministers

invoked the Treaty of Reciprocal Assistance (the Rio Treaty),

September 2, 1947, 4 Bevans 559, 21 UNTS 77. ‘‘Terrorist Attacks

on United States are an Attack on all Countries of the Americas,

Foreign Ministers Declare,’’ OAS press release E-194/01, September

21, 2001, available at http://www.oas.org/OASpage/press2002/en/

press2001/sept01/194.htm.12United Nations Charter, article 51, provides: ‘‘Nothing in the

present Charter shall impair the inherent right of individual or

collective self-defence if an armed attack occurs against a Member of

the United Nations, until the Security Council has taken measures

necessary to maintain international peace and security. Measures taken

by Members in the exercise of this right of self-defence shall be

immediately reported to the Security Council and shall not in any way

affect the authority and responsibility of the Security Council under

the present Charter to take at any time such action as it deems

necessary in order to maintain or restore international peace and

security.’’13See http://www.hklaw.com/maritimedev.asp?Subject=new for

current information on developments in maritime security.14See the summary prepared by the IMO at http://www.imo.org/

Newsroom/mainframe.asp?topic id=583&doc id=2689. Those

amendments are expected to enter into force on July 1, 2004. The

US Coast Guard ISPS Code implementation plan was announced at 67

Fed. Reg. 79742, Maritime Security (December 30, 2002); the most

recent information on regulations implementing the Maritime Trans-

portation Security Act of 2002, Pub. L. 107-295, appears at 68 Fed.

Reg. 39240, Implementation of National Maritime Security Initiatives

(July 1, 2003). See [21].

detection and large-scale technology to identify contain-ers that pose a security threat.15

The Legal Committee of the IMO has undertaken toexpand the coverage of the Convention for theSuppression of Unlawful Acts Against the Safety ofMaritime Navigation, and its Protocol for the Suppres-sion of Unlawful Acts Against the Safety of FixedPlatforms Located on the Continental Shelf. Draftprotocols to both instruments will next be consideredat the Committee’s 87th session in October 2003 on thebasis of the report of a correspondence group led by theUnited States.16

The International Labor Organization revised Con-vention 108 to deal with the concerns for improvingseafarer identification and facilitating shore leave post-9/11/2001 at its 91st International Labor Conference inJune 2003.17

3.3. Smuggling and unsafe transport of migrants by sea

Between 1998 and 2000, the international communityadopted two instruments designed to thwart the growingproblems of smuggling and unsafe transport of migrantsby sea. The smuggling of migrants by sea is addressed inSection 2 of the Protocol against the Smuggling ofMigrants by Land, Sea and Air, supplementing theUnited Nations Convention against TransnationalCrime, Palermo, December 15, 2000.18 The Interna-tional Maritime Organization has issued guidelines forcombating unsafe practices associated with the traffick-ing or transport of migrants by sea.19

3.4. Piracy and armed robbery at sea

Piracy against the world’s shipping surged in the firsthalf of 2003, with a record 234 attacks reported andviolence against seafarers escalating, the ICC Interna-tional Maritime Bureau (which characterizes all such

15The text is available at http://www.wcoomd.org/ie/En/en.html.

The December 2002 SOLAS Conference adopted a resolution (number

9) that invites the WCO to consider urgently measures to enhance

security throughout international movement of containers and

requests the Secretary-General of IMO to contribute expertise relating

to maritime traffic to the discussions at the WCO. ‘‘Enhancement of

Security in Co-operation with the World Customs Organization

(Closed Cargo Transport Units),’’ Conference Resolution 9, adopted

December 12, 2002. For information on CSI, see the US Bureau of

Customs and Border Protection (formerly, the US Customs Service)

material posted at its web site http://www.cbp.gov/xp/cgov/import/

cargo control/csi/ (visited August 16, 2003).16The full text of the latest draft, IMO document LEG 87/5/1, Aug.

29, 2003, may be found at https://afls16.jag.af.mil/dscgi/ds.py/View/

Collection-4966 (visited August 16, 2003).17The text may be viewed at http://www.ilo.org/public/english/

standards/relm/ilc/ilc91/pdf/pr-20a.pdf (visited August 16, 2003).18Annex III to UN General Assembly doc. A/55/383, November 2,

2000.19 IMO document MSC/Circ.896/Rev.1, June 21, 2001.

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22 IMO document MSC 77/19, March 25, 2003. See also the ISF/ICS

‘‘Maritime Security Report 2002,’’ archived at http://www.marise-

c.org/piracy/spec2002.htm (visited August 16, 2003).23See the 1988 Vienna Drug Convention, supra note 10.24United Nations Convention on the Law of the Sea, Montego Bay,

December 10, 1982, 1833 UNTS 397, reprinted in 21 I.L.M. 1261

(1982), Senate Treaty Doc. 103-39, entered into force November 16,

1994, not in force for the United States (LOS Convention), art. 92.1;

J.A. Roach / Marine Policy 28 (2004) 41–66 45

attacks as piracy) reported on July 24, 2003. Waters offIndonesia continue to be the most dangerous. The IMBReport, Piracy and Armed Robbery against Ships,showed a rising toll of dead and injured seamen as thenumber of incidents in which firearms were used rose. Atotal of 16 seafarers were killed in piratical attacksduring the period, 20 were reported missing, and 52 wereinjured. Numbers taken hostage more than doubled to193. Typical incidents were the fatal shooting in thehead of a ship’s officer on board a tanker off Santos,and the abduction of crew for ransom off Nigeria wheretheir vessel was run aground. Pirates fired a hail ofbullets from automatic weapons at a chemical tanker offIndonesia in an attempt to force it to stop. A ship’sengineer was hit and was rushed to hospital foremergency treatment. The figures were the worst for a6 months period since the IMB, a specialized division ofthe International Chamber of Commerce, startedcompiling global piracy statistics in 1991. The numberof attacks rose 37% compared with 171 during thecorresponding period in 2002, when six crew memberswere killed. The highest number of attacks was recordedoff Indonesia, which accounted for more than one-quarter of the world total with 64 incidents. Theseincluded 43 ships boarded, four hijacked and attemptedattacks on a further 17 ships. Among other piracy-proneareas, attacks doubled off Bangladesh where the numberof attacks doubled to 23. Nigeria and India, with 18attacks each, occupy third place.20

In its annual piracy review for 2002, the IMB reportedthat the number of pirate attacks rose to 370 worldwidein 2002—up from 335 in 2001—and the number of casesinvolving capture and taking of the whole ship also rosefrom 16 to 25. The IMB attributed this rise to thegreater involvement in piracy by organized crimenetworks. In 2002, the number of seafarers killeddeclined from 21 to 10, but 24 passengers or crewremain missing and are presumed dead.21

For calendar year 2002, the IMO received reports of383 attacks, a decrease of 13 from calendar year 2001.The total number of attacks reported to the IMO since1984 through February 2003 had increased to 3001.Most of the attacks reported to the IMO during 2001and 2002 were reported to have occurred in the coastalStates’ territorial waters while the ships were at anchoror berthed. In many of the reports received by the IMO,the crews were violently attacked by groups of 5–10people carrying knives or guns. During 2002, the IMOnoted 6 crew members of the ships involved were killed,50 wounded, 38 are missing, and 38 were thrown

20The report may be viewed at http://www.iccwbo.org/ccs/news-

archives/2003/piracy report second quarter.asp (visited August 16,

2003).21See http://www.iccwbo.org/home/news archives/2003/stories/pir-

acy%20 report 2002.asp (visited August 16, 2003).

overboard and later rescued; 12 ships were hijacked andeight ships are missing.22

3.5. Drug smuggling by sea

While drug smuggling by sea has occurred for manyyears, only within the past quarter century has theinternational community developed rules for dealingwith this threat.23

4. Enforcement at sea: shipboarding procedures

What then are the rules of law to deal with thesevarious threats at sea? Other than those arising from thelaw of naval warfare, which I do not propose to discussfurther in this paper, the basic rules may be stated asfollows.

4.1. Basic rules

Under the law of the sea, a ship may sail under theflag of one State only and is subject to its exclusivejurisdiction on the high seas.24

* A ship may not change its flag during a voyage savein the case of a real transfer of ownership or a changeof registry (see foonote 24).

* Ships have the nationality of the State whose flag theyare entitled to fly.25

* A ship which sails under the flags of two or moreStates, using them according to convenience, may notclaim any of the nationalities in question with respectto any other State, and may be assimilated to a shipwithout nationality.26

* A warship which encounters on the high seas aforeign commercial ship is not justified in boarding itunless there is reasonable ground for suspecting thatthe ship is, inter alia, without nationality.27

* In such a case, the warship may proceed to verify theship’s right to fly its flag.28

* To this end, it may send a boat under the commandof an officer to the suspected ship. If suspicion

Convention on the High Seas, Geneva, April 29, 1958, 13 UST 2312,

TIAS 5200, 450 UNTS 82 (High Seas Convention), art. 6.1.25LOS Convention, art. 91.1; High Seas Convention, art. 5.1.26LOS Convention, art. 92.2; High Seas Convention, art. 6.2.27LOS Convention, art. 110.1. This provision did not appear in the

High Seas Convention.28LOS Convention, art.110.2.

ARTICLE IN PRESSJ.A. Roach / Marine Policy 28 (2004) 41–6646

remains after the documents have been checked, itmay proceed to a further inspection on board theship, which must be carried out with all possibleconsideration.29

* If the suspicions prove to be unfounded, andprovided that the ship boarded has not committedany act justifying them, it shall be compensated forany loss or damage that may have been sustained.30

How then are these rules applied in the varioussituations previously described?

4.2. Terrorism conventions

Of the dozen international terrorism conventions,31

only one deals with acts of terrorism at sea.32 However,perhaps as a result of the timing of its preparation, the1988 SUA Convention contains no provisions onassisting the flag State in suppressing these criminalacts. As a consequence of the events of September 11,2001, the International Maritime Organization (IMO) isin the process of considering amendments to the SUAConvention and its Protocol. The amendments presentlyunder consideration include the addition of new offenses

29 Id. This provision also appears in the High Seas Convention,

article 22.2.30LOS Convention, art. 110.3. This provision also appears in article

22.3 of the High Seas Convention.31Convention on Offenses and Certain Other Acts Committed on

Board Aircraft, Tokyo, September 14, 1963, 20 UST 2941, TIAS 6768,

704 UNTS 219; Convention for the Suppression of Unlawful Seizure

of Aircraft (Hijacking), The Hague, December 16, 1970, 22 UST 1641,

860 UNTS 105; Convention for the Suppression of Unlawful Acts

against the Safety of Civil Aviation (Sabotage), Montreal, September

23, 1971, 24 UST 564, TIAS 7570, 974 UNTS 178, and its Protocol on

the Suppression of Unlawful Acts of Violence at Airports Serving

International Civil Aviation, Montreal, February 24, 1988, 1589

UNTS 474; Convention on the Prevention and Punishment of Crimes

against Internationally Protected Persons, including Diplomatic

Agents, New York, December 14, 1973, 28 UST 1975, TIAS 8532,

1035 UNTS 167; International Convention against the Taking of

Hostages, New York, December 17, 1979, TIAS 11081, 1316 UNTS

206; Convention on the Physical Protection of Nuclear Material,

Vienna, March 3, 1980; International Convention on the Marking of

Plastic Explosives for the Purpose of Detection, Montreal, March 1,

1991; International Convention for the Suppression of Terrorist

Bombings, New York, December 15, 1997; International Convention

for the Suppression of the Financing of Terrorism, adopted by the UN

General Assembly, December 9, 1999. The regional terrorism

conventions also do not address the maritime aspects of these threats.

All of these treaties may be accessed through the links at http://

www.un.org/terrorism.32Convention for the Suppression of Unlawful Acts against the

Safety of Maritime Navigation, Rome March 10, 1988, and its

Protocol for the Suppression of Unlawful Acts against the Safety of

Fixed Platforms Located on the Continental Shelf, Rome March 10,

1988 (SUA Convention). The text of these instruments may be

accessed through the links at http://www.un.org/terrorism.

and provisions on shipboarding.33 The initial draftshipboarding article provided:

ARTICLE 8 bis

1. Except where a Party has notified the Secretary-General that it will apply the provisions of paragraph2 of this Article, when law enforcement or otherauthorized officials of one Party (‘‘the first Party’’)encounter a ship:

(a) claiming the nationality of another Party,(b) located seaward of any State’s territorial sea,

and(c) reasonably suspected of being involved in, or

reasonably believed to be the target of, acts describedin Article 3,

such officials are authorized to board and searchsuch ship, its cargo and persons on board, and toquestion the persons on board in order to determinewhether a person or persons on board that ship are,or have engaged in, conduct described in Article 3.

2. A Party (‘‘the first Party’’) may notify theSecretary-General that whenever law enforcement orother authorized officials of another Party (‘‘therequesting Party’’) encounter a ship:

(a) claiming the nationality of the first Party,(b) located seaward of any State’s territorial sea,

and(c) reasonably suspected of being involved in, or

reasonably believed to be the target of, acts describedin Article 3,

the requesting Party may request that the firstParty confirm the claim of nationality and if suchclaim is confirmed, authorize the law enforcement orother authorized officials of the requesting Party toboard and search the suspect ship, its cargo andpersons on board, and to question the persons onboard in order to determine if conduct described inArticle 3 is taking or has taken place aboard thatship.

If the first Party is unable to confirm nationality,that Party may authorize the boarding and search bythe law enforcement or other officials of the request-ing Party, or refute the claim of nationality.

If there is no response from the first Party withinfour (4) hours of an oral request to confirmnationality, the requesting Party may board andsearch the suspect ship, its cargo and persons onboard, and question the persons found on board inorder to determine if conduct described in Article 3 istaking or has taken place aboard that ship.

The notification can be withdrawn at any time.3. When evidence of conduct described in Article 3

is found as the result of any boarding conducted

33The full text of the initial draft, IMO document LEG 85/4, August

17, 2002, may be found at https://afls16.jag.af.mil/dscgi/ds.py/View/

Collection-4966.

ARTICLE IN PRESS

3

of

Sea

tio

Dr

tio

Ge

Dr

Co

Dr

(Fo

J.A. Roach / Marine Policy 28 (2004) 41–66 47

pursuant to this Article, the law enforcement or otherauthorized officials of the boarding Party may detainthe ship, cargo and persons on board pendingexpeditious disposition instructions from the flagState Party. The boarding Party shall promptlyinform the flag State Party of the results of aboarding and search conducted pursuant to thisArticle.

4. The boarding and search of a suspect ship inaccordance with this Article is governed by thenational laws of the boarding Party. The authoriza-tion to board, search and detain includes theauthority to use force. All uses of force by a Partypursuant to this Article shall be in strict accordancewith applicable laws and policies of that Party andshall in all cases be the minimum reasonablynecessary under the circumstances. Nothing in thisConvention, as amended, shall impair the exercise ofthe inherent right of self-defense by the Parties ortheir law enforcement or other officials.

5. Safeguards34

(a) Where a State Party takes measures against avessel in accordance with this Article, it shall:

(i) ensure the safety and humane treatment of thepersons onboard;

(ii) take due account of the need not to endangerthe security of the vessel or its cargo; and

(iii) take due account of the need not to prejudicethe commercial or legal interests of the flag State orany other interested State.

(b) Where the grounds for measures taken pur-suant to this article prove to be unfounded, the vesselshall be compensated for any loss or damage thatmay have been sustained, provided that the vessel hasnot committed any act justifying the measures taken.

(c) Any measure taken, adopted or implemented inaccordance with this Convention shall take dueaccount of the need not to interfere with or to affect:

(i) the rights and obligations and the exercise ofjurisdiction of coastal States in accordance with theinternational law of the sea; or

4All of the provisions of subparagraph (5) are contained in Article 9

the Protocol against the Smuggling of Migrants by Land, Air and

, supplementing the United Nations Convention against Transna-

nal Organized Crime (Migrant Smuggling Protocol). In addition:

Subparagraph (a) derives from Article 17.5 of the 1988 Vienna

ug Convention.

Subparagraph (b) derives from Article 110.3 of the LOS Conven-

n, and Article 22.3 of the Convention on the High Seas, done at

neva on 29 April 1958.

Subparagraph (c)(i) derives from Article 17.11 of the 1988 Vienna

ug Convention.

Subparagraph (c)(ii) derives from article 94.1 of the LOS

nvention.

Subparagraph (d) derives from Article 17.10 of the 1988 Vienna

ug Convention and Articles 110.4, 110.5 of the LOS Convention,

otnote as in original, renumbered.)

3

tha

flag

ori3

11,

(ii) the authority of the flag State to exercisejurisdiction and control in administrative, technicaland social matters involving the vessel.

(d) Any measure taken at sea pursuant to thisConvention shall be carried out only by warships ormilitary aircraft, or by other ships or aircraft clearlymarked and identifiable as being on governmentservice and authorized to that effect.

6. Except as expressly provided herein, this Articledoes not apply to or limit boarding of ships,conducted by any Party in accordance with interna-tional law, seaward of any State’s territorial sea,including boardings based upon, inter alia, the rightof visit, the rendering of assistance to persons, shipsand property in distress or peril, or an authorizationfrom the flag State to take law enforcement or otheraction.

7. The Parties are encouraged to develop standardoperating procedures for joint operations pursuant tothis Article and consult, as appropriate, with otherParties with a view to harmonizing such standardoperating procedures for the conduct of operations.

8. In order to meet the objectives of this Article,each Party is encouraged to co-operate closely withthe other Parties. Parties may conclude agreements orarrangements between them to facilitate law enforce-ment or other operations carried out in accordancewith this Article.

9. Consistent with its legal system, each Party shalltake appropriate measures to ensure that its lawenforcement or other authorized officials, and lawenforcement or other authorized officials of otherParties acting on its behalf, are empowered toexercise the authority of law enforcement or otherauthorized officials as prescribed in this Convention,as amended.35

As noted in footnote 42, these provisions are based onexisting provisions of international treaties concerninglaw enforcement at sea. Nevertheless, during their initialconsideration by the IMO Legal Committee in October2002 (LEG 85), it was apparent that most of thedelegations were not aware of these precedents, forconcerns were expressed about the ‘‘potential lack ofcompatibility between the proposed boarding proce-dures and the principles of freedom of navigation andflag State jurisdiction’’ and ‘‘[d]oubts were also ex-pressed as to the compelling need of such an article, andthe potential for abuse in its practical application.’’36

5This new requirement is designed to remove a potential defense

t a boarding party was not authorized by the national law of the

or coastal State to conduct the boarding at sea. (Footnote as in

ginal, renumbered.)6Report of the 85th Session of the IMO Legal Committee, LEG 85/

z 89, at 15.

ARTICLE IN PRESSJ.A. Roach / Marine Policy 28 (2004) 41–6648

In particular, some in the Legal Committee suggestedthat the standard ‘‘reasonably suspected to beinginvolved in, or reasonably believed to be the target of’’lacked ‘‘objectivity for triggering criminal law.’’37

Apparently the delegates felt this formulation strayedtoo far from the ‘‘reasonable belief’’ standard has widelyaccepted precedents in the Law of the Sea Convention(article 10838) and the 1988 Vienna Drug Convention(article 17.2 and 17.339).

The delegates also seemed to believe that theproposed shipboard provisions departed from basiclaw of the sea principles regarding flag State jurisdictionas did article 17 of the Vienna Drug Convention.40

Apparently the delegates were unaware of the long-standing practice of States to permit a flag State torequest assistance of other States and to assent torequests from other States for authorization to boardtheir ships to deal with criminal acts on their behalf.

Nevertheless, as will be seen from the discussion ofthese precedents that follows, there is considerable roomfor improvement in this draft amendment to the SUAConvention.

4.3. Drug smuggling by sea

Article 108 of the Law of the Sea Conventionprovided the first, albeit modest, multilateral rules fordealing with illicit traffic in narcotic drugs or psycho-tropic substances:41

‘‘1. All States shall co-operate in the suppression ofillicit traffic in narcotic drugs and psychotropic sub-stances engaged in by ships on the high seas contrary tointernational conventions.

2. Any States which has reasonable grounds forbelieving that a ship flying its flag is engaged in illicittraffic in narcotic drugs or psychotropic substances mayrequest the co-operation of other States to suppress suchtraffic.’’

These rules were amplified in article 17, Illicit trafficby sea, of the Vienna Convention for the Suppression ofIllicit Traffic in Narcotic Drugs and PsychotropicSubstances:42

‘‘1. The Parties shall co-operate to the fullest extentpossible to suppress illicit traffic by sea, in conformitywith the international law of the sea.

2. A Party which has reasonable grounds to suspectthat a vessel flying its flag or not displaying a flag ormarks of registry is engaged in illicit traffic may requestthe assistance of other Parties in suppressing its use for

37 Id. at z 91.38See text accompanying footnote 41.39See text accompanying footnote 42.40 Id. at z 92.41The full text of the Law of the Sea Convention may be accessed on

line at http://www.un.org/Depts/los.421988 Vienna Drug Convention, supra footnote 10.

that purpose. The Parties so requested shall render suchassistance within the means available to them.

3. A Party which has reasonable grounds to suspectthat a vessel exercising freedom of navigation inaccordance with international law and flying the flagor displaying marks of registry of another Party isengaged in illicit traffic may so notify the flag State,request confirmation of registry and, if confirmed,request authorization from its flag State to takeappropriate measures in regard to that vessel.

4. In accordance with paragraph 3 or in accordancewith treaties in force between them or in accordancewith any agreement or arrangement otherwise reachedbetween those Parties, the flag State may authorize therequesting States to, inter alia:

(a)

43

oper

Narc

open

in f

App

Board the vessel;

(b) Search the vessel; (c) If evidence of involvement in illicit traffic is found,

take appropriate action with respect to the vessel,persons and cargo on board.

5. Where action is taken pursuant to this article, theParties concerned shall take due account of the need notto endanger the safety of life at sea, the security of thevessel and the cargo or to prejudice the commercial andlegal interests of the flag State or any other interestedState.

6. The flag State may, consistent with its obligationsin paragraph 1 of this article, subject its authorization toconditions to be mutually agreed between it and therequesting Party, including conditions relating toresponsibility.

7. For the purposes of paragraphs 3 and 4 of thisarticle, a Party shall respond expeditiously to a requestfrom another Party to determine whether a vessel that isflying its flag is entitled to do so, and to requests forauthorization made pursuant to paragraph 3. At thetime of becoming a Party to this Convention, each Partyshall designate an authority or, when necessary,authorities to receive and to respond to such requests.Such designation shall be notified through the Secretary-General to all other Parties within one month of thedesignation.

8. A Party which has taken any action in accordancewith this article shall promptly inform the flag Stateconcerned of the results of that action.

9. The Parties shall consider entering into bilateral orregional agreements or arrangements to carry out, or toenhance the effectiveness of, the provisions of thisarticle.43

The shipboarding provisions of the Agreement Concerning Co-

ation in Suppressing Illicit Maritime and Air Trafficking in

otic Drugs and Psychotropic Substances in the Caribbean Area,

ed for signature at San Jose, Costa Rica April 10, 2003 (not

orce) (Caribbean Regional Agreement) are reproduced in

endix A.

ARTICLE IN PRESSJ.A. Roach / Marine Policy 28 (2004) 41–66 49

10. Any action pursuant to paragraph 4 of this articleshall be carried out only by warships or military aircraft,or other ships or aircraft clearly marked and identifiableas being on government service and authorized to thateffect.

11. Any action taken in accordance with this articleshall take due account of the need not to interfere withor affect the rights and obligations and the exercise ofjurisdiction of coastal States in accordance with theinternational law of the sea.’’

4.4. Smuggling of migrants by sea

A later treaty that reflects the experiences garneredwith drug smuggling at sea provides procedures fordealing with the smuggling of migrants by sea.

One of the protocols to the 2000 UN Conventionagainst Transnational Organized Crime44 seeks topromote international cooperation in the suppressionof the smuggling of migrants by land, sea and air.45

Articles 7 to 9 relate to smuggling by sea:

Smuggling of migrants by seaArticle 7CooperationStates Parties shall cooperate to the fullest extent

possible to prevent and suppress the smuggling ofmigrants by sea, in accordance with the internationallaw of the sea.

Article 8Measures against the smuggling of migrants by sea1. A State Party that has reasonable grounds to

suspect that a vessel that is flying its flag or claimingits registry, that is without nationality or that, thoughflying a foreign flag or refusing to show a flag, is inreality of the nationality of the State Party concernedis engaged in the smuggling of migrants by sea mayrequest the assistance of other States Parties insuppressing the use of the vessel for that purpose.The States Parties so requested shall render suchassistance to the extent possible within their means.

2. A State Party that has reasonable grounds tosuspect that a vessel exercising freedom of navigationin accordance with international law and flying theflag or displaying the marks of registry of anotherState Party is engaged in the smuggling of migrantsby sea may so notify the flag State, requestconfirmation of registry and, if confirmed, requestauthorization from the flag State to take appropriate

44UN Convention against Transnational Organized Crime, Paler-

mo, December 12, 2000, 40 I.L.M. 335, UN General Assembly

document A/RES/55/25, Annex I, January 8, 2001 (not in force). For

background on the Convention, see http://www.odccp.org/palermo/

theconvention.html.45UN General Assembly document A/RES/55/25, Annex III,

available at http://www.odccp.org/pdf/crime/a res 55/res5525e.pdf.

measures with regard to that vessel. The flag Statemay authorize the requesting State, inter alia:

(a) To board the vessel;(b) To search the vessel; and(c) If evidence is found that the vessel is engaged in

the smuggling of migrants by sea, to take appropriatemeasures with respect to the vessel and persons andcargo on board, as authorized by the flag State.

3. A State Party that has taken any measure inaccordance with paragraph 2 of this article shallpromptly inform the flag State concerned of theresults of that measure.

4. A State Party shall respond expeditiously to arequest from another State Party to determinewhether a vessel that is claiming its registry or flyingits flag is entitled to do so and to a request forauthorization made in accordance with paragraph 2of this article.

5. A flag State may, consistent with article 7 of thisProtocol, subject its authorization to conditions to beagreed by it and the requesting State, includingconditions relating to responsibility and the extent ofeffective measures to be taken. A State Party shalltake no additional measures without the expressauthorization of the flag State, except those necessaryto relieve imminent danger to the lives of persons orthose which derive from relevant bilateral or multi-lateral agreements.

6. Each State Party shall designate an authority or,where necessary, authorities to receive and respond torequests for assistance, for confirmation of registry orof the right of a vessel to fly its flag and forauthorization to take appropriate measures. Suchdesignation shall be notified through the Secretary-General to all other States Parties within 1 month ofthe designation.

7. A State Party that has reasonable grounds tosuspect that a vessel is engaged in the smuggling ofmigrants by sea and is without nationality or may beassimilated to a vessel without nationality may boardand search the vessel. If evidence confirming thesuspicions is found, that State Party shall takeappropriate measures in accordance with relevantdomestic and international law.

Article 9Safeguard clauses1. Where a State Party takes measures against a

vessel in accordance with article 8 of this Protocol, itshall:

(a) Ensure the safety and humane treatment of thepersons on board;

(b) Take due account of the need not to endangerthe security of the vessel or its cargo;

(c) Take due account of the need not to prejudicethe commercial or legal interests of the flag State orany other interested State;

ARTICLE IN PRESS

4

ava

47 IMO Interim Measures For Combating Unsafe Practices Asso-

ciated With The Trafficking Or Transport Of Migrants By Sea, IMO

circular, MSC/Circ.896, March 4, 1999, Annex.48 IMO circular, MSC/Circ.896/Rev.1, June 12, 2001, Annex.49 It is recalled that:

� regulation 1 of chapter I of SOLAS Convention provides that

SOLAS applies to ships engaged on international voyages;

� regulation 2 of the same chapter defines as:

international voyage, a voyage from a country to which the present

Convention applies to a port outside such country, or conversely.

passenger ship, a ship which carries more than twelve passengers.

cargo ship, any ship which is not a passenger ship.

The trafficking of migrants will normally constitute an interna-

tional voyage. When this practice occurs on board cargo ships,

J.A. Roach / Marine Policy 28 (2004) 41–6650

(d) Ensure, within available means, that anymeasure taken with regard to the vessel is envir-onmentally sound.

2. Where the grounds for measures taken pursuantto article 8 of the Protocol prove to be unfounded,the vessel shall be compensated for any loss ordamage that may have been sustained, provided thatthe vessel has not committed any act justifying themeasures taken.

3. Any measure taken, adopted or implemented inaccordance with this chapter shall take due accountof the need not to interfere with or to affect:

(a) The rights and obligations and the exercise ofjurisdiction of coastal States in accordance with theinternational law of the sea; or

(b) The authority of the flag State to exercisejurisdiction and control in administrative, technicaland social matters involving the vessel.

4. Any measure taken at sea pursuant to thischapter shall be carried out only by warships ormilitary aircraft, or by other ships or aircraft clearlymarked and identifiable as being on governmentservice and authorized to that effect.’’

The Ad Hoc Committee on the Elaboration of aConvention against Transnational Organized Crimethroughout the process of negotiation of the draftConvention discussed interpretative notes for theofficial records (travaux preparatoires) of the negotia-tions. The interpretative notes for the chapter onsmuggling of migrants by sea state:46

‘‘98. The travaux preparatoires should indicate thatit is understood that the measures set forth in Section2 of the Protocol cannot be taken in the territorial seaof another State except with the permission orauthorization of the coastal State concerned. Thisprinciple is well established in the law of the sea anddid not need to be restated in the Protocol. Thetravaux preparatoires should also indicate that theinternational law of the sea includes the UnitedNations Convention on the Law of the Sea as well asother relevant international instruments. Referencesto the United Nations Convention on the Law of theSea do not prejudice or affect in any way the positionof any State in relation to that Convention.

Article 7: Cooperation99. The travaux preparatoires should indicate that

this Protocol is without prejudice to the existingrights, obligations or responsibilities of States Partiesunder other international instruments, such as thosereferred to in this article. Rights, obligations andresponsibilities under another instrument are deter-mined by the terms of that instrument and whetherthe State concerned is a party to it, not by this

6UNGA document A/55/383/Add.1, November 3, 2000, at 18,

ilable at http://www.un.org/ga/55/lista55.htm.

Protocol. Therefore, any State that becomes a partyto this Protocol but is not a party to anotherinternational instrument referred to in the Protocolwould not become subject to any right, obligation orresponsibility under that other instrument.

Article 8: Measures against the smuggling ofmigrants by sea

100. The travaux preparatoires should indicate thatthe word ‘‘engaged’’ in paragraphs 1, 2 and 7 of thisarticle and in paragraph 1 of article 10 should beunderstood broadly as including vessels ‘‘engaged’’both directly and indirectly in the smuggling ofmigrants. Of particular concern was the inclusion ofboth vessels actually found to be carrying smuggledmigrants and vessels (‘‘mother ships’’) that transportsmuggled migrants on open ocean voyages but aresometimes not apprehended until after the migrantshave been transferred to smaller local vessels forlanding purposes.’’

4.5. Unsafe transport of migrants

In 1998, the IMO adopted interim, non-bindingmeasures for the prevention and suppression of unsafepractices associated with the trafficking or transport ofmigrants by sea, pending entry into force of aConvention against transnational organized crime in-cluding trafficking in migrants.47 The guidelines asrevised in 2001 are set out next.48, 49, 50

‘‘Definitions

2

multip

commi50 If

11.2 ab

For purposes of this circular:

2.1 ‘‘Ship’’ means every description of water craft,

including non-displacement craft and seaplanes,used or capable of being used as a means oftransportation on water, except a warship, navalauxiliary, or other ship owned or operated by aGovernment and used, for the time being, only ongovernment non-commercial service;

le infringements of the SOLAS Convention are therefore

tted. (Footnote as in the original, renumbered.)

registry is refuted, the situation is that described in paragraph

ove. (Footnote as in the original, renumbered.)

ARTICLE IN PRESSJ.A. Roach / Marine Policy 28 (2004) 41–66 51

2.2

‘‘Organization’’ means the International MaritimeOrganization; and

2.3

‘‘unsafe practices’’ means any practice whichinvolves operating a ship that is: 1 obviously in conditions which violate funda-

mental principles of safety at sea, in particularthose of the SOLAS Convention; or

2

not properly manned, equipped or licensed forcarrying passengers on international voyages,

and thereby constitute a serious danger for the lives orthe health of the persons on board, including theconditions for embarkation and disembarkation.Purpose

3

The purpose of this circular is to promoteawareness and co-operation among ContractingGovernments of the Organization so that they mayaddress more effectively unsafe practices asso-ciated with the trafficking or transport of migrantsby sea which have an international dimension.

Recommended actions by States

Compliance with international obligations.

4

Experience has shown that migrants often aretransported on ships that are not properlymanned, equipped or licensed for carrying passen-gers on international voyages. States should takesteps relating to maritime safety, in accordancewith domestic and international law, to eliminatethese unsafe practices associated with the traffick-ing or transport of migrants by sea, including: 1 ensuring compliance with the International

Convention for the Safety of Life at Sea,1974, as amended (SOLAS);

2

collecting and disseminating information onships believed to be engaged in unsafe practicesassociated with trafficking or transportingmigrants;

3

taking appropriate action against masters,officers and crew members engaged in suchunsafe practices; and

4

preventing any such ship: 1 from again engaging in unsafe practices;

and

2 if in port, from sailing.

5

Measures taken, adopted or implemented pur-suant to this circular to combat unsafe practicesassociated with the trafficking or transport ofmigrants by sea should be in conformity with theinternational law of the sea and all generallyaccepted relevant international instruments, suchas the United Nations 1951 Convention and the1967 Protocol Relating to the Status of Refugees.

6

States should take, adopt or implement suchmeasures in conformity with international lawwith due regard to: 1 the authority of the flag State to exercise

jurisdiction and control in administrative,

technical and social matters involving the ship;and

2

the rights and obligations of the coastal State. 7 If any measures are taken against any ship

suspected of unsafe practices associated withtrafficking or transport of migrants by sea, theState concerned should take into account the neednot to endanger the safety of human life at sea andthe security of the ship and the cargo, or toprejudice the commercial and/or legal interests ofthe flag State or any other interested State.

Co-operation.

8

States should co-operate to the fullest extentpossible to prevent and suppress unsafe practicesassociated with the trafficking or transport ofmigrants by sea, in conformity with the interna-tional law of the sea and all generally acceptedrelevant international instruments. It is consistentwith international law for a flag State to authorizea vessel flying its flag to be boarded and inspectedby a warship of another State, as described inparagraphs 12 and 20 below.

9

States should consider entering into bilateral orregional agreements to facilitate co-operation inapplying appropriate, efficient and effective mea-sures to prevent and suppress unsafe practicesassociated with the trafficking or transport ofmigrants by sea.

10

States should also encourage the conclusion ofoperational arrangements in relation to specificcases.

Measures and procedures

11

State, which has reasonable grounds to suspectthat a ship which: 1 is flying its flag or claiming its registry, or 2 is without nationality, or 3 though flying a foreign flag or refusing to show

its flag is, in reality, of the same nationality asthe State concerned,

is engaged in unsafe practices associated with thetrafficking or transport of migrants by sea, may requestthe assistance of other States in suppressing its use forthat purpose. The States so requested should rendersuch assistance as is reasonable under these circum-stances.

12 A State which has reasonable grounds to suspect

that a ship exercising freedom of navigation inaccordance with international law and flying theflag or displaying marks of registry of anotherState is engaged in unsafe practices associated withthe trafficking or transport of migrants by sea mayso notify the flag State, request confirmation ofregistry and, if confirmed, request authorizationfrom the flag State to take appropriate measures inregard to that ship. The flag State may authorizethe requesting State to, inter alia:

ARTICLE IN PRESSJ.A. Roach / Marine Policy 28 (2004) 41–6652

1

board the ship; 2 inspect and carry out a safety examination of

the ship, and

3 if evidence is found that the ship is engaged in

unsafe practices, take appropriate action withrespect to the ship, persons and cargo onboard, as authorized by the flag State.

A State which has taken any action in accordance withthis paragraph should promptly inform the flag Stateconcerned of the results of that action.

13 A flag State may, consistent with paragraph 8,

subject its authorization to conditions to bemutually agreed between it and the requestingState, including conditions relating to responsi-bility and to the extent of effective measures to betaken including the use of force. A State shall takeno additional actions without the express author-ization of the flag State, except those necessary torelieve imminent danger or those that follow fromrelevant bilateral or multilateral agreements.

14

A State should respond expeditiously to a requestfrom another State to determine whether a shipthat is claiming its registry or flying its flag isentitled to do so, and to a request for authoriza-tion made pursuant to paragraph 12.

15

When a ship is found engaged in unsafe practicesassociated with the trafficking or transport ofmigrants by sea, States should: 1 immediately report the findings of the safety

examinations conducted pursuant to paragraph12 to the administration of the State whose flagthe ship is entitled to fly or in which it isregistered; and

2

immediately consult on the further actions tobe taken after giving or receiving reports on theship involved.

16

When there are reasonable grounds to suspect thata ship is engaged in unsafe practices associatedwith trafficking or transport of migrants by seaand it is concluded in accordance with theinternational law of the sea that the ship is withoutnationality, or has been assimilated to a shipwithout nationality, States should conduct a safetyexamination of the ship, as necessary. If the resultsof the safety examination indicate that the ship isengaged in unsafe practices, States should takeappropriate measures in accordance with relevantdomestic and international law.

17

When evidence exists that a ship is engaged inunsafe practices associated with the trafficking ortransport of migrants by sea, States, in takingaction pursuant to paragraphs 12 or 16, should: 1

51Law of the Sea Convention, articles 100–107; 1958 High Sea

Convention, articles 14–22. Scholars have criticized these provisions as

being inaccurate and incomplete [22–24].

ensure the safety and the humanitarian hand-ling of the persons on board and that anyactions taken with regard to the ship areenvironmentally sound; and

2

take appropriate action in accordance withrelevant domestic and international law.

18

States should take required steps, in accordancewith international law including SOLAS regula-tion I/19(c)), to ensure that a ship involved inunsafe practices associated with the trafficking ortransport of migrants by sea does not sail until itcan proceed to sea without endangering the ship orpersons on board, and to report promptly to theState whose flag the ship is entitled to fly, or inwhich it is registered, all incidents concerning suchunsafe practices which come to their attention.

19

Contracting Governments to SOLAS 1974, asamended, should ensure that, when a request isreceived to transfer a ship to their flag or registry,the requirements listed in regulation I/14(g)(ii) aremet, and appropriate inspections and surveys areconducted to ensure the ship will be used for theservice specified in the certificates issued inaccordance with Section 1 of the 1974 SOLASConvention.

20

Any action taken at sea pursuant to this circularshall be carried out only by warships or militaryaircraft, or other ships or aircraft clearly markedand identifiable as being on government serviceand authorized to that effect.

21

Each State should designate an authority or, wherenecessary, authorities to receive reports of unsafepractices, and to respond to requests for assis-tance, confirmation of registry or right to fly itsflag and authorization to take appropriate mea-sures.

22

Notwithstanding paragraph 20, ships providingassistance to persons in distress at sea, as requiredby the international law of the sea includingSOLAS regulation V/10, and ships providingassistance in accordance with this circular, shouldnot be considered as engaging in unsafe practicesassociated with the trafficking or transport ofmigrants by sea.’’

4.6. Piracy and armed robbery at sea

The universal crime of piracy and permissible reactionto incidents of piracy are detailed in the law of the sea.51

As described in Section 2 above, modern incidents arenot necessarily piracy in the traditional sense, and havebeen addressed in other ways. Enforcement at sea,however, remains based on the traditional rules.

The Convention for the Suppression of Unlawful ActsAgainst the Safety of Maritime Navigation, with its

ARTICLE IN PRESSJ.A. Roach / Marine Policy 28 (2004) 41–66 53

Protocol for the Suppression of Unlawful Acts Againstthe Safety of Fixed Platforms Located on the Con-tinental Shelf, Rome, 10 March 1988, was adoptedunder the IMO’s auspices. These instruments can fillmany of the jurisdictional gaps highlighted when theacts endanger the safety of international navigation andoccur on board national or foreign flag ships whileunderway in the territorial sea, international straits orinternational waters. The Convention requires Statesparties to criminalize such acts under national law andto cooperate in the investigation and prosecution oftheir perpetrators. While the Convention has been inforce since 1 March 1992, except for China, none of theStates in whose waters these acts are occurring areparty.52 The Convention is presently being updated bythe IMO in response to the attacks on the United Statesof September 11, 2001.53 In particular, as discussed inSection 3, the SUA Convention contains no provisionsregarding enforcement at sea and efforts are underwayto include in the Convention such provisions.54

5. Application to selected shipboarding incidents

5.1. Canadian seizure of al Qaeda suspects

On July 13, 2002, Canadian maritime patrol aircraftoperating in support of Operation Enduring Freedom inthe Gulf of Oman spotted three 8-m aluminum high-speed boats suspected of smuggling migrants. A Frenchwarship was vectored to inspect the boats. One of thespeedboats was carrying 10 Afghans, two of whom werelater identified as suspected terrorists. The speedboatswere subsequently stopped again after fleeing. An eight-strong Canadian boarding party boarded one speedboat and removed two suspects.

While this author does not know the legal basis forthe boarding, it can be presumed that it was pursuant tothe right of self-defense recognized in the post-Septem-ber 11th context by the Security Council.

5.2. The M/V So San incident

On December 9, 2002, the Spanish Navy boarded amerchant ship in the Indian Ocean and discovered 15Scud missiles hidden on board. On December 11th, the

52See http://www.imo.org/imo/convent/status.htm.53See https://afls16.jag.af.mil/dscgi/ds.py/View/Collection-4966.54Nevertheless, other information is available to assist in preventing

and suppressing piracy and armed robbery at sea. The International

Maritime Organization has issued a number of instruments for use in

preventing and suppressing piracy and armed robbery at sea [25–31].

Governments and some industry organizations have issue addi-

tional guidance for dealing with piracy and armed robbery against

ships [32–40].

Some other useful references are [41–45].

vessel was released and proceeded to Yemen where themissiles were off loaded. Why was the ship boarded andwhy was the vessel released?

According to press reports, the vessel was suspectedof transporting North Korean missiles that had beensold and was tracked from when it departed Koreanwaters. The vessel was displaying the name So San.

The Spanish Navy was participating in OperationEnduring Freedom, seeking to prevent the escape by seaof al Qaeda and Taliban forces. On December 9th the So

San was observed with a North Korean flag painted outon the ship’s funnel, the Korean characters for ‘‘So San’’on the hull were observed to be painted over with freshpaint, and no flag was flying. When queried by theSpanish Navy, the master replied that the vessel wasregistered in Cambodia, and carrying a cargo of cementfor Socotra Island, Somalia. No ship by the name of ‘‘SoSan’’ was identified in international registers of ships.

As the Master claimed his vessel was registered inCambodia, the Cambodian Government was requestedto confirm the claim of nationality, and if nationalitywas confirmed, to authorize boarding of the ship toexamine the ship’s papers, question the persons onboard, and search the vessel. The Cambodian Govern-ment confirmed that a vessel meeting the description wasregistered in Cambodia under the name ‘‘Pan Hope’’.

Under these circumstances, the Spanish Navy sus-pected the vessel was without nationality and sought toexercise their right of visit. However, the So San

maneuvered to prevent a boarding. Consequently,repellers from helicopters boarded the ship.

Once on board, the boarding party inspected theship’s papers which indicated the vessel was registered inCambodia. The ship’s manifest indicated the cargo was40,000 bags of cement. However, upwards of two dozen140 by 400 sealed containers were observed even thoughthey were not listed on the cargo manifest. The boardingparty opened the containers to reveal 15 Scud missilesand associated material [46–48].

When queried about this case on December 11, 2002,the White House Spokesman stated that the ship wasboarded because it ‘‘was an unflagged vessel’’ butpermitted to proceed to Yemen because ‘‘[t]here is noprovision under international law prohibiting Yemenfrom accepting delivery of missiles from North Korea.’’The Spokesman stated further that’’[w]hile there isauthority to stop and search, in this instance there isno clear authority to seize the shipment of Scud missilesfrom North Korea to Yemen and therefore themerchant vessel is being released.’’55

In summary, the Spanish forces boarded the shipunder the internationally recognized right of visit toverify its nationality. The vessel was suspected of being

55Press briefing by Ari Fleisher. December 11, 2002, archived at

http://www.whitehouse.gov/news/releases/2002/12/20021211–5.html.

ARTICLE IN PRESSJ.A. Roach / Marine Policy 28 (2004) 41–6654

without nationality because the ship’s name andindications of nationality on the hull and funnel wereobscured and it was flying no flag. Further, the Master’sclaim of Cambodian registry was inconsistent with theimage of a North Korean flag painted on the ship’sfunnel. While the conflicting evidence with respect tonationality provided a legal basis for the boarding andsearch, there is no international law rule prohibiting thetransport of conventional arms (see [49]).56

5.3. The M/V Sabrax incident

The Sabrax was a Panamanian-flag coastal freighterthat was engaged in the Haitian coastal trade. With anew Dominican master, the ship set sail from Haiti inearly December 2002 with a crew of three nationals fromthe Dominican Republic, one each from Haiti and theBahamas, and four Cubans. On December 25, 2002, thefour Cuban crew armed with knives hijacked the ship inan attempt to direct the vessel to Puerto Rico, scuttle thevessel and claim asylum. The hijackers permitted themaster to go to his cabin where he surreptitiously usedhis cell phone to call the ship’s agent in Miami. Theagent contacted the US Coast Guard and requestedassistance. The US Coast Guard located the ship onDecember 26th in international waters about 35 nmENE of the Dominican Republic. A US Coast Guardlaw enforcement detachment boarded the ship with theauthorization of the Government of Panama, and theboarding team took control of the vessel from thehijackers. The United States then relayed the results ofthe boarding to the Government of Panama whichultimately did not object to the Cubans being returnedto Cuba for prosecution.

In this case, the United States conducted the initialboarding pursuant to flag State authorization.57 How-

56North Korean claims that the boarding was an act of piracy,

http://www.cnn.com/2002/WORLD/asiapcf/east/12/13/missile.ship/in-

dex.html, is, of course, without any basis in law or fact, since the

boarding was conducted in accordance with international law. As

North Korea was not the flag State, it has no standing to raise this

complaint. Professor Ruth Wedgwood, writing in the Wall Street

Journal on December 16th, erred in claiming the ship was a ‘‘piratical

ship’’ simply because it was not showing a flag and carrying a false

cargo manifest. She is equally in error when claiming the vessel and

cargo were subject to capture as contraband or a prize. The United

States is not at war with the flag State. Further, her claim that ship

could have been seized as an act of self-defense falls, since there was no

evidence that the cargo posed a threat of imminent attack on the

United States. See [50].57The United States had the option of exercising the right of visit to

board the vessel because it had reasonable grounds to believe an act of

piracy had occurred aboard the ship. See LOS Convention, art.

110.1(a). Although acts of piracy are traditionally directed ‘‘against

another ship,’’ id. art. 101(a)(i), the law of the sea recognizes that

certain internal disturbances may also constitute acts of piracy. See [51].

Here, the Sabrax crew had committed acts of violence and

detention for private ends (seeking asylum), which were directed

ever, the flag State did not respond to requests toexercise its flag State responsibilities. It simply did notobject to the ultimate disposition of the hijackers toCuba.

5.4. The F/V Chern Maan Shyang 1 incident

As noted above, nine Chinese crew allegedly hijackedthe Taiwan F/V Chern Maan Shyang 1. At the request ofthe Taiwan authorities, the US Coast Guard interceptedthe vessel 40 nm SW of Guam on July 27, 2001. TheTaiwan engineer and Chinese assailant were killedduring an altercation and the master was evacuatedfrom the ship because of significant stabbing injuries.Taiwan officials determined the case to be an internallabor dispute and Taiwan authorities arrived in Guamon August 5, 2001, to pilot the vessel back to Taiwan.

Again, in this case, the US Coast Guard conductedthe boarding in international waters with the consent ofthe flag authority and disposition was entirely inaccordance with its desires.

5.5. The F/V Full Means 2 incident

In this case, as recounted above, 32 Chinese crew onthe Seychelles-flagged fishing vessel Full Means 2 wasintercepted by the US Coast Guard on March 18, 2002,180 nm SSE of Hilo, Hawaii. With the authorization ofthe flag State, the US Coast Guard boarded the ship.The boarding team found the body of the first mate (aChinese national) in the ship’s freezer and the Taiwanmaster was missing. On board investigation revealed oneChinese national apparently murdered the master andfirst mate over a personal dispute. The rest of the crewwas able to overpower the alleged murderer, put him ina stateroom and weld the door shut. The United Statesobtained authorization from the Seychelles governmentto exercise jurisdiction over the vessel and over thealleged assailant after the FBI completed a homicideinvestigation in port Honolulu. The prosecution pends.US authorities released the vessel and remaining crewafter conclusion of the homicide investigation.

Once again, the boarding and search were conductedin international waters with the authorization of the flagState. The US prosecution was undertaken because thealleged perpetrator was found in US waters where thevessel had gone for safety. Accordingly, US authoritieshad unrestricted access to witnesses and physicalevidence. Because the US legislation implementing theSUA Convention creates jurisdiction in cases involvingacts of violence in maritime navigation when the‘‘offender is later found in the United States after such

(footnote continued)

against a ship and persons outside the territorial jurisdiction of any

State.

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60LEG 86/5 and Corr.1, March 25, 2003 (footnotes as in the

original, renumbered).61This paragraph is added to emphasize the need for cooperation in

J.A. Roach / Marine Policy 28 (2004) 41–66 55

activity is committed,’’ the US had adequate domesticlaw to accommodate the prosecution as authorized bythe Seychelles Government.58

5.6. The Nataly I case

As noted above, the US Coast Guard boarded thisPanamanian flag long-line fishing vessel in internationalwaters on July 25, 1995. The decision of the 9th USCircuit Court of Appeals reports that the vessel wasoriginally boarded with the permission of the vessel’smaster who authorized a preliminary search of thevessel. As the boarding team’s suspicions were notconfirmed, the team left the vessel. Overnight, theGovernment of Panama authorized the US CoastGuard to board and search the vessel for cocaine.Ultimately, the US Coast Guard found cocaine hiddenin two fuel tanks. The Government of Panama wasnotified of the results of the search and, on July 28,1995, gave permission for the United States to seize thevessel and cocaine and enforce US law against themaster and crew. They were subsequently convicted ofpossession of cocaine with intent to distribute on boarda vessel in violation of 46 US Code Appendix section1903(a) (1994), and that conviction was affirmed by theCourt of Appeals.59

Thus, the boarding in this case was conducted inaccordance with the international law reflected in article17 of the Vienna Drug Convention.

5.7. The Esperanza case

As noted above, on February 7, 2002, the US CoastGuard encountered the Ecuadorian-flag fishing vesselEsperanza 318 nm WNW of Manta, Ecuador. A USmaritime patrol aircraft detected the commercial fishingvessel operating outside of known fishing areas with alarge tarpaulin on deck and no visible fishing gear. Theaircraft crew reported at least 40 persons under thetarpaulin when the aircraft approached. Authoritiesdiverted a US naval vessel with a Coast Guard lawenforcement detachment embarked, which was conduct-ing a counter-drug patrol nearby, to investigate. Uponarrival on scene, the US authorities noted a hailing portof Ecuador painted on the stern and the master made averbal claim of Ecuadorian nationality for the vessel.Coast Guard personnel observed over 100 persons onthe deck of the 90 foot vessel and sought the master’sconsent for a boarding. When the master refused toconsent to a boarding, the United States sought andobtained authorization from the Government of Ecua-

5818 USC y 2280 (b)(1)(C) (2003).59United States v. Richard Klimavicius-Viloria, et al., 144 F.3d.1249

(9th Cir. 1998); on line at http://laws.findlaw.com/9th/9650546.html

(visited August 16, 2003).

dor. The boarding team located 141 undocumented andillegal aliens who had paid to be smuggled into theUnited States via Guatemala and Mexico. In addition tothe 106 Ecuadorians and 16 Peruvians aboard Esper-

anza, US authorities also located 19 Iraqi nationalsattempting to enter the United States illegally. Comingless than five months after the attack on the WorldTrade Center, the presence of a group of Iraqi nationalsamong a much larger group of South Americansattempting to migrate to North America naturallyraised concerns of potential terrorist infiltrationalong existing migration routes. The Government ofEcuador authorized the US Coast Guard to takecontrol of the vessel and escort it to Manta, Ecuadorfor further investigation by US and Ecuadorianauthorities.

The boarding and disposition in this case wereconducted with ad hoc flag State authorization. Whilethis case implicated neither the right of visit nor illicitnarcotics trafficking, the United States conducted theboarding in accordance with the framework articulatedin the Protocol against the Smuggling of Migrants byLand, Sea and Air, supplementing the United NationsConvention against Transnational Crime.

6. Improvements to draft shipboarding article for SUA

convention

From the foregoing it should be evident that thecriticisms levied during LEG 85 at the draft shipboard-ing article for the SUA Convention had some merit evenif not clearly articulated. As originally drafted, thearticle did not reflect all the protections contained inearlier law enforcement treaties with a shipboardingcomponent and, naturally, did not reflect later develop-ments after it was submitted.

6.1. Developments at LEG 86

The text considered at the 86th session of the LegalCommittee (LEG 86)60 read as follows:

‘‘Article 8 bis

1. The Parties shall cooperated to the fullest extentpossible to prevent and suppress unlawful actsagainst the safety of maritime navigation, in con-formity with the international law of the sea.61

suppressing these unlawful acts, and to require actions taken to be

consistent with the international law of the sea. Its formulation is

based on Article 108.1 of the Law of the Sea Convention, Article 17.1

of the Vienna Drug Convention and article 7 of the Migrant

Smuggling Protocol.

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2. A Party that has reasonable grounds to believethat a ship claiming its nationality,62 its cargo or aperson on board the ship is, has been or is about to beinvolved in, or the target of, the commission of anoffense under Article 3 of the Convention mayrequest the assistance of other Parties in preventingor suppressing that offense. The Parties so requestedshall respond expeditiously to the request and rendersuch assistance within the means available to them.63

3. Except where a Party (‘‘the first Party’’) hasnotified the Secretary-General that it will apply theprovisions of paragraph 4 of this Article, wheneverlaw enforcement or other authorized officials64 ofanother Party (‘‘the requesting Party’’) encounter aship:

(a) claiming the nationality of the first Party,located seaward of any State’s territorial sea,65 and

(b) the requesting Party66 has reasonable groundsto believe that the ship, its cargo or a person on boardthe ship is, has been or is about to be involved in, orthe target of, the commission of an offense underArticle 3 of the Convention, the requesting Party mayrequest that the first Party confirm the claim ofnationality and if such claim is confirmed, authorizethe law enforcement or other authorized officials ofthe requesting Party to take appropriate measureswith regard to that ship. The flag State may authorizethe requesting State, inter alia,

(a) to board and search the suspect ship, its cargoand persons on board,

(b) to question the persons on board in order todetermine if conduct described in Article 3 is takingor has taken place aboard that ship, and

(c) if evidence is found that the conduct describedin Article 3 is, has been or is about to take placeaboard the ship, to take appropriate measures with

2A definition of this phrase has been added in paragraph 15 below.3This paragraph is drawn from Article 17.1 of the Vienna Drug

nvention and Article 8.1 of the Migrant Smuggling Protocol, and is

posed for addition in recognition of the responsibilities of the flag

te. At the suggestion of several participants, the threshold for

ervention has been tightened in this and subsequent paragraphs. In

ticular, the phrase ‘‘reasonably suspected’’ has been replaced with

asonable grounds to believe’’ which more closely tracks Article

.2 of the Law of the Sea Convention (‘‘reasonable grounds for

ieving’’), Articles 17.2 and 17.3 of the 1988 Vienna Drug

nvention (‘‘reasonable grounds to suspect’’), and Articles 8.1 and

of the Migrant Smuggling Protocol (same).4This phrase is defined in paragraph 10(e) below.5One participant suggested replacing ‘‘located seaward of any

te’s territorial sea’’ with ‘‘in the high seas.’’ The shipboarding

ivities described in this Article may be conducted in the exclusive

nomic zone as well as on the high seas since the high seas freedoms

navigation and overflight apply in the exclusive economic zone, as

ected in Article 58.1 of the LOS Convention.6While the law enforcement officials will likely be the source of the

asonable grounds,’’ the requesting Party should satisfy itself that

standard is met before approaching the flag State.

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respect to the vessel and persons and cargo on board,as authorized by the flag State.67

[If the first Party is unable to confirm nationality,that Party may authorize or indicate that it does notobject to the boarding and search by the lawenforcement or other officials of the requestingParty,68 or refute the claim of nationality.]

[If there is no response from the first Party withinfour (4) hours of a request69 to confirm nationality,the requesting Party may board and search thesuspect ship, its cargo and persons on board, andquestion the persons found on board in order tolocate and examine documentation of its nationalityand determine if conduct described in Article 3 is, hasbeen or is about to take place aboard that ship.70]

4. At the time of becoming a Party to this Protocol,or at any time thereafter, a Party (‘‘the first Party’’)may notify the Secretary-General that whenever lawenforcement or other authorized officials of anotherParty (‘‘the requesting Party’’) encounter a ship:

(a) claiming the nationality of the first Party,(b) located seaward of any State’s territorial sea,

and(c) the requesting Party has reasonable grounds to

believe that the ship, its cargo or a person on boardthe ship is, has been or is about to be involved in, orthe target of, the commission of an offense underArticle 3 of the Convention,

such officials are authorized to board and searchsuch ship, its cargo and persons on board, and toquestion the persons on board in order to determinewhether the ship or a person or persons on board thatship is, has been or is about to be involved in thecommission of an offense under Article 3 of theConvention.

The notification can be withdrawn at any time.

7As suggested by one participant, the text has been revised to make

cific reference to ‘‘appropriate measures’’ the flag State may

horize the requesting State to take. Similar provisions appear in

ticle 8.2 of the Migrant Smuggling Protocol and Articles 17.3, 17.4

17.6 of the 1988 Vienna Drug Convention.8There have been instances when the suspect ship does not display

ficient indicia of nationality to enable the flag State to verify or

ute the claim of its nationality. Under these circumstances, to avoid

ing the suspect ship a free ride, the claimed flag State may presume

t the claim is valid (‘‘presumptive flag State authority’’) and

horize the boarding or not object to the boarding to determine the

p’s nationality, or refute the claim of nationality.9Although the request may be oral or in writing, for the reasons

ted in the next footnote, the four-hour period should run from the

t notification of the request for verification to the claimed flag State.0All flag States should be in a position on request promptly to

ify or refute a claim of nationality. However, to avoid prolonged

iting at sea, the four-hour default provision is considered essential

the prompt conduct of the boarding, to minimize delay of the

pect ship and to the early release of the warship (or other ship

rly marked and identifiable as being on government service and

horized to that effect) to conduct its other missions.

ARTICLE IN PRESS

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76All of the provisions of subparagraphs (a) to (d) of paragraph 10

are drawn from Article 9 of the Migrant Smuggling Protocol.77At the suggestion of one participant, ‘‘vessel’’ has been replaced

with ‘‘ship’’ throughout this Article for consistency of terminology.78One participant suggested that the original provision, which

required a State Party to ensure the safety and humane treatment of

persons on board the ship that is boarded, should be expanded to

require that measures are taken in a way that gives full and complete

effect to the fundamental rights and freedoms of those on board, as set

out in international instruments, and which preserve their basic

dignity. This proposed language has not been incorporated because the

proposed language is overly vague and could create substantial

disagreement over which instruments this is meant to refer. The

suggested language is worded so generally as to encompass, for

instance, instruments that set forth ‘‘rights’’ that all states would not

consider fundamental.

Although this participant noted that comparable language has been

included in the SOLAS amendments for maritime security (Chapter

J.A. Roach / Marine Policy 28 (2004) 41–66 57

5. When evidence of conduct described in Article 3is found as the result of any boarding conductedpursuant to this Article, except as provided inparagraph 4 above, the flag State may authorize thelaw enforcement or other authorized officials of therequesting Party may detain the ship, cargo andpersons on board pending receipt of expeditiousdisposition instructions from the first Party.71

6. The requesting Party shall promptly inform thefirst Party of the results of a boarding and searchconducted pursuant to this Article.72

7. A Party shall respond expeditiously to a requestfrom another Party to determine whether a shipclaiming its nationality is entitled to do so and to arequest for authorization made in accordance withparagraph 3 of this Article.73

8. A flag State, consistent with the other provisionsof this Convention, subject its authorization toconditions to be agreed by it and the requestingState, including conditions relating to responsibilityand the extent of effective measures to be taken. AParty shall take no additional measures without theexpress authorization of the flag State, except whennecessary to relieve imminent danger to the lives ofpersons or those that derive from relevant bilateral ormultilateral agreements.74

9. The boarding and search of a suspect shippursuant to this Article shall be conducted inaccordance with the obligations assumed by therequesting Party under international law, includingthe safeguard provisions of this Article.75 Theauthorization to board, search and detain includesthe authority to use force. All uses of force by a Partypursuant to this Article shall be in strict accordancewith applicable laws and policies of that Party andshall in all cases be the minimum reasonablynecessary under the circumstances. Nothing in thisConvention, as amended, shall impair the exercise of

1These provisions would ensure that the flag State, which exercises

isdiction over its ships on the high seas, decides what is to be done

h the vessel, cargo and crew.2This provision has been made a separate paragraph to clarify that

pplies to boardings conducted pursuant to paragraphs 2, 3 and 4 of

s Article.3This provision is taken from Article 8.4 of the Migrant Smuggling

tocol and has been added at the suggestion of a participant.4This paragraph is based on Article 8.5 of the Migrant Smuggling

tocol and Article 17.6 of the 1988 Vienna Drug Convention. It is

ed at the request of several participants to provide further

tection to the legitimate interests of flag States and the persons

board their ships.5 In response to concerns expressed that national law should not

lusively govern boardings, this sentence has been revised to make

cific references to the international legal obligations assumed by the

uesting Party, including the safeguards provisions. The text

ginally read: ‘‘The boarding and search of a suspect ship in

ordance with this Article is governed by the national laws of the

rding Party.’’

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the inherent right of self-defense by the Parties ortheir law enforcement or other officials.

[10. Safeguards:76

(a) Where a State Party takes measures against aship77 in accordance with this Article, it shall:

(i) ensure the safety and humane treatment of thepersons onboard;

(ii) take due account of the need not to endangerthe safety of life and sea and the security of the shipand its cargo,78 or to prejudice the commercial orlegal interests of the flag State or any other interestedState; and

(iii) ensure, within available means, that anymeasure taken with regard to the ship is environmen-tally sound under the circumstances.79

(b) Where the grounds for measures taken pur-suant to this article prove to be unfounded, the vesselshall be compensated for any loss or damage thatmay have been sustained, provided that the vessel hasnot committed any act justifying the measurestaken.80

-2) and the International Ship and Port Facility Security (ISPS)

de, we would note that such language is included only in paragraph

of the preamble to Part A of the ISPS Code and accordingly is only

tatory. In those negotiations, various delegations made clear their

osition to including stronger language in the mandatory text of the

S Code.

There is also a distinction between the SOLAS and the ISPS Code

the SUA Convention. Chapter XI-2 and the ISPS Code are the

t examples of regulations imposed by the IMO on shore activities.

ause the shipboardings contemplated by Article 8 bis would be

ducted at sea, the SUA Convention presents different issues from

SOLAS and ISPS Code. The proposed additions could be

erpreted to limit the discretion of a boarding office to take

itimate, necessary enforcement actions.9Subparagraph (a) derives from Article 17.5 of the 1988 Vienna

ug Convention and Article 9.1 of the Migrant Smuggling Protocol.0Subparagraph (b) derives from Article 110.3 of the Law of the Sea

nvention, and Article 22.3 of the 1958 Geneva Convention on the

h Seas. One participant suggested consideration be given to

ulation 9.3.5.1 of the new chapter XI-2, Special measures to

ance maritime safety, of SOLAS that provides: ‘‘all possible efforts

ll be made to avoid a ship being unduly detained or delayed. If a

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(c) Any measure taken, adopted or implemented inaccordance with this Convention shall take dueaccount of the need not to interfere with or to affect:

(i) the rights and obligations and the exercise ofjurisdiction of coastal States in accordance with theinternational law of the sea;81 or

(ii) the authority of the flag State to exercisejurisdiction and control in administrative, technicaland social matters involving the ship.82

(d) Any measure taken at sea pursuant to thisConvention shall be carried out by law enforcementor other authorized officials from warships ormilitary aircraft, or from other ships or aircraftclearly marked and identifiable as being on govern-ment service and authorized to that effect83 and,notwithstanding Articles 2 and 2 bis,84 the provisionsof this Article shall apply.

(e) For the purposes of this Article ‘‘law enforce-ment or other authorized officials’’ means uniformedor otherwise clearly identifiable members of lawenforcement or other government authorities thatare notified to the Secretary-General by the Partyresponsible for those authorities as being authorizedto act pursuant to this Article.85]

11. This Article does not apply to or limit otherboarding of ships, conducted by any Party inaccordance with international law, seaward of anyState’s territorial sea, including boardings basedupon, inter alia, the right of visit, the rendering ofassistance to persons, ships and property in distress

otnote continued)

p is thereby unduly detained, or delayed, it shall be entitled to

pensation for any loss or damage suffered.’’ Another suggested as

alternate the formulation contained in Article 21.18 of the

addling Stocks Agreement: ‘‘States shall be liable for damage or

s attributable to them arising from action taken pursuant to this

icle when such action is unlawful or exceeds that reasonably

uired in light of available information to implement the provisions

this article.’’ Other participants suggested including broader

guage on liability, which could open the door for an ill-defined

pensation scheme that could impose unlimited financial liability on

tes.1Subparagraph (c)(i) derives from Article 17.11 of the 1988 Vienna

ug Convention.2Subparagraph (c)(ii) derives from Article 94.1 of the LOS

nvention.3Subparagraph (d) derives from Article 17.10 of the 1988 Vienna

ug Convention and Articles 110.4 and 110.5 of the LOS Conven-

n. The phrase ‘‘law enforcement or other authorized officials’’ has

n added and the word ‘‘by’’ has been replaced with the word

om’’ to limit who may conduct the boardings and limit the ships

m which those boardings may take place to those duly authorized

the requesting State.4This phrase is added to ensure that shipboardings conducted by

itary (vice police) forces are subject to the provisions of this Article

that the military activities exemptions in Articles 2 and 2 bis do not

ly to this Article.5This provision has been added at the suggestion of one participant

put other Parties on notice as to those law enforcement or other

cials authorized to act under this Article.

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or peril, or an authorization from the flag State totake law enforcement or other action.86

12. The Parties are encouraged to develop standardoperating procedures for joint operations pursuant tothis Article and consult, as appropriate, with otherParties with a view to harmonizing such standardoperating procedures for the conduct of operations.87

13. In order to meet the objectives of this Article,each Party is encouraged to co-operate closely withthe other Parties. Parties may conclude agreements orarrangements between them to facilitate law enforce-ment or other operations carried out in accordancewith this Article.88

14. Consistent with its legal system, each Partyshall take appropriate measures to ensure that its lawenforcement or other authorized officials, and lawenforcement or other authorized officials of otherParties acting on its behalf, are empowered toexercise the authority of law enforcement or otherauthorized officials as prescribed in this Convention,as amended.89

15. For the purposes of the Convention, a claim ofnationality may be evidenced, inter alia, by the flyingof a flag, displaying marks or documentation of itsregistration, or a verbal claim from a responsibleofficial on the ship.90

16. At the time of becoming a Party to thisProtocol, each party shall designate the authority, or,where necessary, authorities to receive and respond torequests for assistance, for confirmation of nation-ality, and for authorization to take appropriatemeasures. Such designation shall be notified to theSecretary-General to all other Parties within onemonth of the designation.91

6Other boardings not covered by Article 8 bis include those

ducted pursuant to Article 17 of the Vienna Drug Convention, UN

urity Council Resolutions such as Resolution 665, the Migrant

uggling Protocol, security inspections pursuant to the International

p and Port Facility Code, the belligerent right of visit and search,

boardings in self-defense.7One participant has suggested there should be a requirement that

se procedures be publicized. Other participants have indicated that

urity concerns argue against full publication of these procedures.8One participant has suggested that these agreements and arrange-

nts should be publicized. Other participants have noted that to the

ent these are public documents they should be made available to the

lic, but certain arrangements and agreements would be for official

only and not for public distribution.9This new requirement is designed to remove a potential defense

t a boarding party was not authorized by the national law of the

or coastal State to conduct the boarding at sea. (This note

eared in the original draft text and has been renumbered.)0As the Convention is a criminal law instrument, this provision is

ed to clarify that the various means by which a ship may claim the

ionality of a State are not limited to flying a flag as may be implied

the wording of Articles 6 and 9 of the Convention.1This provision is added at the suggestion of several participants. It

based upon Article 8.6 of the Migrant Smuggling Protocol and

ticle 17.7 of the 1988 Vienna Drug Convention.

ARTICLE IN PRESSJ.A. Roach / Marine Policy 28 (2004) 41–66 59

17. A Party that has reasonable grounds to believethat a ship, its cargo or a person on board the ship is,has been, or is about to be involved in, or the targetof, the commission of an offense under Article 3 ofthe Convention, and that the ship is withoutnationality, or may be assimilated to a ship withoutnationality, may board and search the ship. Ifevidence confirming the suspicion is found, thatParty shall take appropriate measures in accordancewith international law.92’’

At LEG 86 there was strong general agreementthat a shipboarding regime should be added to SUA.However, consensus was not reached on all provi-sions and some were placed in brackets.93 Efforts toexplain and resolve these differences continuedintersessionally.

6.2. LEG 87

During the summer of 2003, the correspondencegroup considered further refinements to the draftshipboarding article on the basis of the considerationgiven to this article during LEG 86. The report of thecorrespondence group to LEG 87 reflects severalrevisions to Article 8 bis and contains a few provisionsin brackets for consideration at LEG 87 in October2003.94

One bracketed provision in paragraph 3 permits aState Party in which a vessel has claimed nationality toauthorize or indicate that it does not object to theboarding and search of that vessel by the law enforce-ment or other officials of the requesting Party if theclaimed flag State is unable to confirm nationality. Asdrafted, this provision reflects that fact that there havebeen instances when a suspect ship does not displaysufficient indicia of nationality to enable the flag State toverify or refute the claim of its nationality. Thisprovision eliminates the ability of a vessel to avoidboarding during prolonged registry checks conducted bythe putative flag State.

The second key provision that remains contentiouswould permit a requesting Party to board and search asuspect ship, its cargo and persons on board, andquestion the persons found on board if the flag State hasnot responded to a request within 4 hours. The 4-hourdefault provision set out in paragraph 3 is consideredessential to the prompt conduct of the boarding, which

92This provision is added at the suggestion of a participant to deal

with stateless ships. It is based on Article 8.7 of the Migrant Smuggling

Protocol.93A summary of the discussions on the shipboarding provisions are

provided in paragraphs 55-83 of the Report of eighty-sixth session of

the IMO Legal Committee, LEG 86/15, May 2, 2003, at pp. 13–16.94The report of the correspondence group to LEG 87 may be

accessed at https://afls16.jag.af.mil/dscgi/ds.py/View/Collection-4966

(visited August 16, 2003).

is necessary to avoid potential destruction or conceal-ment of evidence, minimize delay of the suspect ship andto facilitate the timely return of enforcement assets toother missions.

As the Convention is a criminal law instrument,paragraph 14 was added to clarify that the variousmeans by which a ship may claim the nationality of aState are not limited to flying a flag, which may beimplied by the wording of Articles 6 and 9 of theConvention. Other means of claiming nationalityinclude verbal claims by a responsible official on theship and marks or documentation of registration.

Several participants have suggested that the term‘‘claiming its nationality’’ be replaced with the term‘‘flying its flag’’ in paragraph 3(a) (and elsewhere inArticle 8 bis). However, this substitution suggests—incorrectly—that the term ‘‘flying the flag’’ is the properand sole indicator of nationality of a vessel. Article 91 ofthe Law of the Sea Convention, entitled ‘‘Nationality ofships’’, requires every State to fix the conditions for thegrant of ‘‘its nationality to ships, for the registration ofships in its territory, and for the right to fly its flag.’’Article 91 also requires every State to issue to ships ‘‘towhich it has granted the right to fly its flag’’ documentsto that effect. It thus follows that nationality is theprerequisite for a ship to claim the protection of a State,and that nationality may be evidenced in a number ofways: by registration, flying the flag, or documentation.Nationality may also be indicated by the home port andverbal claim of the master. Paragraph 14 is drafted tomake this explicit.

In that there is no single international legal standardthat governs the conduct of the boarding and searchingof a vessel, paragraph 7 of Article 8 bis reflects the factthat certain existing principles of customary interna-tional law embodied in several international conven-tions, to the extent that a ‘‘requesting Party’’ is a partythereto, will provide the legal framework for the conductof a boarding and search under the SUA Convention.

In addition, subparagraph 7(b) of Article 8 bis hasbeen drafted to make it clear that no provision of theSUA dealing with the rules regarding the use of force tocompel a boarding and search impinges or impairs aParty’s or boarding team member’s inherent right ofself-defense, which is well established in customaryinternational law. Given that boarding parties may beconfronted by terrorists when boarding a suspect vessel,the inherent right of self-defense must be emphasized,and its inclusion should not be read as authorizingParties to stop and board vessels at will.

Paragraph 10 of Article 8 bis makes it clear that thisinstrument is not the exclusive means of accomplishing aboarding. Other boardings not covered by 8 bis includethose conducted pursuant to article 17 of the ViennaDrug Convention, UN Security Council Resolutionssuch as Resolution 665, the Migrant Smuggling Protocol

ARTICLE IN PRESS

101Brackets inserted at the request of a participant, who felt that this

terminology required careful consideration.

J.A. Roach / Marine Policy 28 (2004) 41–6660

to the UN Convention Against Transnational Orga-nized Crime, the inherent right of self-defense, andbelligerent rights. While it is true that without thisprovision, Parties could rely on those legal authorities toconduct boardings, the inclusion of a positivestatement regarding the non-exclusive nature of the 8bis boarding regime would serve to eliminate anyambiguity that might arise were this Article silent onthis issue.

Article 8 bis also represents an excellent opportunityto address existing loopholes in article 17 of the 1988Vienna Drug Convention, which are likewise mirroredin article 8 of the 2000 Migrant Smuggling Protocol tothe UN Convention Against Transnational OrganizedCrime. While the proposed boarding regime is based onthe 1988 Convention, it draws on and reflects theexperience of the extensive US bilateral practice inmaritime law enforcement boarding.

The full text of the draft revised Article 8 bis to beconsidered by LEG 87, as well as the rationale foractions taken by the United States as leader of thecorrespondence group, follows.

‘‘ARTICLE 8 bis95

1. The States Parties shall cooperate to the fullestextent possible to prevent and suppress unlawful actsagainst the safety of maritime navigation, in con-formity with the international law of the sea.96

2. A State Party that has reasonable grounds tosuspect97 that a ship [claiming its nationality,]98 theship’s99 cargo or a person on board the ship is, hasbeen or is about to be involved in, or the target of, thecommission of an offence under Article 3, Article 3bis or Article 3 ter100 may request the assistance ofother States Parties in preventing or suppressing thatoffence. The States Parties so requested shall respondexpeditiously to the request and render such assis-tance within the means available to them.

95 IMO document LEG 87/5/1, Annex 1, pp. 9–15, footnotes

renumbered.96One participant, expressing support for the proposal made during

LEG 86 to include a reference to ‘‘security’’ in this paragraph,

suggested that the phrase ‘‘and security’’ could be added before the

phrase ‘‘of maritime navigation.’’97Notwithstanding comments received through the Correspondence

Group during the intersessional period, several participants at LEG 86

expressed a preference for ‘‘suspect’’ over ‘‘believe,’’ noting that while

the Article 108 of the Law of the Sea Convention (the ‘‘LOS

Convention’’) uses the latter term, Articles 17.2 and 17.3 of the

Vienna Drug Convention and Articles 8.1 and 8.2 of the Migrant

Smuggling Protocol use the former term. No one at LEG 86 favored

retaining ‘‘believe.’’98Brackets inserted at the request of a participant, who felt that this

terminology required careful consideration.99 Inserted at the request of one participant, who felt that this

formulation would make it clearer that the cargo in question was on

board the targeted ship.100 Inserted in recognition of the additional offenses proposed for

inclusion in the SUA Convention.

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3. Except where a State Party (‘‘the first Party’’)has notified the Secretary-General that it will applythe provisions of paragraph 4 of this Article,whenever law enforcement or other authorizedofficials of another State Party (‘‘the requestingParty’’) encounter a ship:

(a) [claiming the nationality]101 of the first Party,located seaward of any State’s territorial sea, and

(b) the requesting Party has reasonable grounds tosuspect102 that the ship, the ship’s cargo or a personon board the ship is, has been or is about to be involvedin, or the target of, the commission of an offence underArticle 3, Article 3 bis or Article 3 ter, and

(c) the requesting Party desires to board,103 itshall104 request that the first Party confirm the claimof nationality and if such claim is confirmed,authorize the law enforcement or other authorizedofficials of the requesting Party to take appropriatemeasures with regard to that ship;105

the flag State may authorize the requesting State’slaw enforcement or other authorized officials, interalia, to board and search such ship, its cargo andpersons on board, and to question the persons onboard in order to determine whether the ship or aperson or persons on board that ship is, has been or isabout to be involved in the commission of an offenceunder Article 3, Article 3 bis or Article 3 ter.106

A State Party shall respond expeditiously to arequest from another State Party to determinewhether a ship claiming its nationality is entitled todo so and to a request for authorization to takeappropriate measures with regard to that ship.107

[If the first Party is unable to confirm nationality,that Party may authorize or indicate that it does notobject to the boarding and search by the law

02 Inserted at the request of several delegations as explained in

tnote 97.03 Inserted at the request of one participant who noted that a

uest for verification of nationality should only be made when a

ty intends to board.04At the request of several participants, the word ‘‘shall’’ was

erted in place of ‘‘may,’’ which appeared in the comparable

vision of paragraph 3 of draft Article 8 bis of Annex 1 to LEG

5.05Several delegations urged that this paragraph be simplified by

inating the ‘‘sandwich’’ that appeared between subparagraphs (a)

(b) and subparagraphs (a), (b), and (c) of paragraph 3 of the

vious draft of this Article.06This paragraph replaces subparagraphs (a) and (b) of the

vious draft of this Article, which originally followed the ‘‘sand-

h.’’ Subparagraph (c) of paragraph 3 of the previous draft of this

ticle has been deleted as redundant with paragraph 5. At the request

one participant, the text was patterned after the last four lines of

agraph 4.07 Inserted at the request of one participant who suggested that the

l for expeditious response set forth in paragraph 7 of the previous

ft of this Article ought to be synthesized with paragraph 3.

ARTICLE IN PRESS

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113Changed for grammatical completeness.114This provision was set forth as paragraph 9 of the previous draft

of this Article. The text of paragraph 7 of the previous draft has been

moved to the body of paragraph 3.115One participant suggested adding a provision to this paragraph

that would ensure that a Party cannot opt out of the safeguards

provision.116This provision has been reformatted into subparagraphs to

accommodate the inclusion of additional text.117 Inserted at the suggestion of several participants, and based on

Article 22(1)(f) of the Agreement for the Implementation of the

Provisions of the United Nations Convention on the Law of the Sea of

December 10, 1982, relating to the Conservation and Management of

Straddling Fish Stocks and Highly Migratory Fish Stocks, New York,

August 4, 1995, 34 I.L.M. 1547, UN doc. A/CONF.164/37 (UN Fish

Stocks Agreement).118One participant expressed concern that the law governing the use

of force while boarding a ship is the national law of the boarding State

and recommended that if this provision is retained, the reference to

‘‘and policies’’ should be deleted. Another participant suggested that

J.A. Roach / Marine Policy 28 (2004) 41–66 61

enforcement or other officials of the requesting Party,or refute the claim of nationality.]

[If there is no response from the first Party withinfour (4) hours of a request to confirm nationality, therequesting Party may board and search the suspectship, its cargo and persons on board, and questionthe persons found on board in order to locate andexamine documentation of its nationality and deter-mine if conduct described in Article 3, Article 3 bis orArticle 3 ter is, has been or is about to take placeaboard that ship.]

4. On or after it deposits its instrument ofratification, acceptance, approval or accession, aState Party (‘‘the first Party’’) may notify theSecretary-General that whenever law enforcementor other authorized officials of another State Party(‘‘the requesting Party’’) encounter a ship:

(a) [claiming the nationality]108 of the first Party,located seaward of any State’s territorial sea, and109

(b) the requesting Party has reasonable grounds tosuspect that the ship, the ship’s cargo or a person onboard the ship is, has been or is about to be involvedin the commission of an offence under Article 3,Article 3 bis or Article 3 ter,

the requesting State’s law enforcement or otherauthorized110 officials are authorized to board andsearch such ship, its cargo and persons on board, andto question the persons on board in order todetermine whether the ship or a person or personson board that ship is, has been or is about to beinvolved in the commission of an offence underArticle 3, Article 3 bis or Article 3 ter.

The notification can be withdrawn at any time.5. When evidence of conduct described in Article 3,

Article 3 bis or Article 3 ter is found as the result ofany boarding conducted pursuant to this Article,111

the flag State may authorize the law enforcement orother authorized officials of the requesting Party todetain the ship, cargo and persons on board pendingreceipt of expeditious disposition instructions fromthe first Party.

6. A flag State, consistent with the other provisionsof this Convention, may subject its authorization toconditions to be agreed by it and the requesting State,including conditions relating to responsibility for112

and the extent of effective measures to be taken. No

08Brackets inserted at the request of a participant, who felt that this

minology required careful consideration.09Changed to mirror similar text in paragraph 3.10This language was inserted for consistency with paragraph 3, and

make it clear that authorization to board is held by States.11The phrase ‘‘except as provided in paragraph 4 above,’’ which

s included in the previous draft of this Article, has been deleted as

longer relevant—paragraph 5 relates to boarding conducted under

agraphs 4 and 5.12 Inserted for grammatical completeness.

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additional measures would be taken113 without theexpress authorization of the flag State, except whennecessary to relieve imminent danger to the lives ofpersons or those that derive from relevant bilateral ormultilateral agreements.

7.114 The boarding and search of a suspect shippursuant to this Article shall be conducted inaccordance with the obligations assumed by therequesting Party under international law, includingthe safeguards provisions of this Article. Theauthorization to board, search and detain includesthe authority to use reasonable force.115

(a)116 Subject to the provisions of subparagraph (b)below, States Parties shall avoid the use of force exceptwhen and to the degree necessary to ensure the safety ofthe boarding officials and where the officials areobstructed in the execution of their duties.117 All usesof force by a State Party pursuant to this Article shall bein strict accordance with applicable laws and policies ofthat Party and shall in all cases be the minimumreasonably necessary under the circumstances.118

(b) Nothing in this Convention, as amended, shallimpair the exercise of the inherent right of self-defense by the States Parties or their law enforcementor other authorized officials.

8. The requesting Party shall promptly inform thefirst Party of the results of a boarding and searchconducted pursuant to this Article.119

current text of the second sentence of paragraph 7(a) would

haps be clearer if it were redrafted along the lines of the second

tence in Article 22(1)(f) of the UN Fish Stocks Agreement, i.e.,

he degree of force used shall not exceed that reasonably required in

circumstances.’’ The participant further noted that if the current

t is retained, then the reference to ‘‘applicable laws and policies of

t Party’’ should probably be replaced with a reference to

ternational law’’ in the light of the judgment of the International

bunal for the Law of the Sea in the M/V Saiga (No.2) Case.19This provision was set forth as paragraph 6 of the previous draft

this Article. It has been moved at the suggestion of one participant,

o observed that it might be placed more logically in this position.

ARTICLE IN PRESS

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J.A. Roach / Marine Policy 28 (2004) 41–6662

[9. Safeguards:1. Where a State Party takes measures against a

ship in accordance with this Article, it shall:(i) take due account of the need not to endanger the

safety of life at sea;(ii) take due account of the security of the ship and

its cargo;(iii) not prejudice the commercial or legal interests

of the flag State;120

(iv) ensure, within available means, that anymeasure taken with regard to the ship is environmen-tally sound under the circumstances;121

(v) if applicable, ensure that persons on board areafforded the protections of Article 10(2); and122

(vi) ensure that the master of a vessel is,or has been, afforded the opportunity to contact thevessel’s owner or flag State at the earliest opportu-nity.123

(b) Reasonable efforts shall be taken to avoid aship being unduly detained or delayed.124 Where thegrounds for measures taken pursuant to this Articleprove to be unfounded, States Parties shall be liablefor damage or loss attributable to them, consistentwith their national laws, arising from action takenpursuant to this Article when such action is unlawfulor exceeds that reasonably required in light ofavailable information to implement the provisionsof this Article, provided that the vesselhas not committed any act justifying the measurestaken.125

(c) Any measure taken, adopted or implemented inaccordance with this Convention shall take dueaccount of the need not to interfere with or to affect:

(i) the rights and obligations and the exercise ofjurisdiction of coastal States in accordance with theinternational law of the sea; or

20As originally drafted, this subparagraph included the text ‘‘or any

er interested State.’’ With the expansion of the safeguards in

agraph 9(a), the US delegation believes that inclusion of this phrase

one subparagraph and not the others incorrectly suggests that the

hts of other interested States must only be taken into account with

ard to commercial or legal interests.21Sub-subparagraph (i) of the previous draft of this Article has

n broken down into sub-subparagraphs (i)–(iii) at the request of

participant.22Added at the suggestion of one participant in order to provide a

ect link to the protections offered under existing Article 10 in

junction with an at sea boarding. Two participants suggested

eting ‘‘if applicable’’ from this provision.23Added at the suggestion of a participant.24 Inserted at the suggestion of a participant, and based on

gulation 9.3.5.1 of chapter XI-2, SOLAS.25 Inserted at the suggestion of a participant, and taken from Article

18 of the Straddling Stocks Convention, replacing ‘‘the vessel shall

compensated for any loss or damage that may have been sustained.’’

participant noted that the qualification ‘‘consistent with their

ional laws’’ in paragraph 9(b) is not contained in the UN Fish

cks Agreement nor in the LOS Convention.

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(ii) the authority of the flag State to exercisejurisdiction and control in administrative, technicaland social matters involving the ship.

(d) Any measure taken at sea pursuant to thisArticle shall be carried out by law enforcement orother authorized officials from warships or militaryaircraft, or from other ships or aircraft clearlymarked and identifiable as being on governmentservice and authorized to that effect and, notwith-standing Articles 2 and 2 bis, the provisions of thisArticle shall apply.

(e) For the purposes of this Article ‘‘law enforce-ment or other authorized officials’’ means uniformedor otherwise clearly identifiable members of lawenforcement or other government authorities thatare notified to the Secretary-General by the StateParty responsible for those authorities as beingauthorized to act pursuant to this Article.]

[10. This Article does not apply to or limitboarding of ships, conducted by any State Party inaccordance with international law, seaward of anyState’s territorial sea, including boardings basedupon, inter alia, the right of visit, the rendering ofassistance to persons, ships and property in distressor peril, or an authorization from the flag State totake law enforcement or other action.]126

11. The States Parties are encouraged to developstandard operating procedures for joint operationspursuant to this Article and consult, as appropriate,with other States Parties with a view to harmonizingsuch standard operating procedures for the conductof operations.

12. In order to meet the objectives of this Article,each State Party is encouraged to co-operate closelywith the other States Parties. States Parties mayconclude agreements or arrangements between themto facilitate law enforcement operations carried out inaccordance with this Article.

13. Consistent with its legal system, each StateParty shall take appropriate measures to ensure thatits law enforcement or other authorized officials, andlaw enforcement or other authorized officials of otherStates Parties acting on its behalf, are empowered toexercise the authority of law enforcement or otherauthorized officials as prescribed in this Convention,as amended.

[14. For the purposes of this Convention, a claimof nationality may be evidenced, inter alia, by the

26This paragraph has been placed in brackets, at the suggestion of

eral participants. One participant commented that if this paragraph

retained, it may be advisable to draw a distinction between

rdings which are conducted for the purpose of rendering assistance

persons, ships and property in distress or peril and boardings which

resent enforcement action.

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J.A. Roach / Marine Policy 28 (2004) 41–66 63

flying of a flag, displaying marks or documentation ofits registration, or a verbal claim from a responsibleofficial on the ship.]127

15. On or after it deposits its instrument ofratification, acceptance, approval or accession, eachState Party shall designate the authority, or, wherenecessary, authorities to receive and respond torequests for assistance, for confirmation of nation-ality, and for authorization to take appropriatemeasures. Such designation shall be notified to theSecretary-General within 1 month, who shall informall other States Parties within 1 month of thedesignation. Each State Party is responsible forproviding prompt notice through the Secretary-General of any changes in the designation or contactinformation.

16. A State Party that has reasonable grounds tosuspect that a ship, its cargo or a person on board theship is, has been, or is about to be involved in, or thetarget of, the commission of an offence under Article3, Article 3 bis or Article 3 ter, and that the ship iswithout nationality, or may be assimilated to a shipwithout nationality, may board and search the ship toverify the ship’s lack of nationality. If evidenceconfirming either suspicion is found, that State Partyshall take appropriate measures in accordance withinternational law.128’’

It is to be hoped that sufficient consensus can beachieved at LEG 87 that these and the otheramendments can be adopted at a Diplomatic Con-ference to be held in 2004.

7. Conclusions

Threats to maritime security at sea are myriad, andthe vulnerabilities of maritime conveyances and coastalapproaches are equally numerous. Notwithstanding thearray of threats and vulnerabilities, cooperation betweenflag and coastal States presents a powerful tool forimproving mutual security while respecting the princi-ples of sovereignty. The cooperation described in thispaper is based on the principles of international law, andrespect for the sovereign equality of States and the

27Brackets inserted at the request of a participant, who felt that this

agraph required careful consideration.28Several participants suggested that the original paragraph would

efit from a rewrite. In that this paragraph essentially restates the

ht to conduct a right of visit boarding under customary interna-

nal law and the LOS Convention, minor changes were added to

ke that point clearer. One participant commented that Article 110,

agraph 1(e) of the LOS Convention also provides for the right of

it in instances where a ship is hiding its true nationality, i.e.,

ough flying a foreign flag or refusing to show its flag, the ship is in

lity, of the same nationality as the warship’’ and suggested

sidering whether to provide for this scenario in paragraph 16 as

ll.

freedom of navigation. Moreover, cooperation based onthese principles is not confined to a limited number ofsubstantive offenses, but is applicable to interventionsinvolving any threat to maritime security at sea seawardof any State’s territorial sea.

The international community can draw on existingand proven cooperative models for law enforcementintervention in international waters, particularly themodels employed to combat illicit narcotic and migranttrafficking during the past 25 years. Accordingly,regardless of the alleged illicit activity, flag States mustbe prepared to cooperate in suppressing, investigating,and prosecuting threats to maritime security at sea.

Cooperation should take the form of boarding Statespromptly seeking, and flag States promptly confirming,claims of vessel nationality. In particular, flag Statesshould be prepared to respond to such requests at alltimes. Additionally, flag States should be prepared tointervene with their own law enforcement resources orto authorize the boarding and search of their vessels byothers when presented by boarding States with reason-able grounds to believe that a vessel claiming nationalityin the flag State is involved in illicit activity.

This paper has described maritime cases of hijacking,murder, narcotic trafficking, migrant smuggling, sup-port for terrorist organizations, and nebulous transac-tions involving dangerous weapons. Each of these casesinvolved ships found in international waters for which aboarding State had reasonable grounds to believe thatthe ship might be involved in illicit activity threateningmaritime security at sea. In each case, the boarding Stateemployed a three-part intervention model pursuant tointernational law, existing conventions and ad hocarrangements: first, obtain evidence regarding vesselnationality and seek its confirmation; second, uponobtaining confirmation of nationality, secure authoriza-tion to board and search from the claimed flag State;and third, if evidence of illicit activity is detected, detainthe vessel, cargo, and persons on board on behalf of theclaimed flag State pending expeditious dispositioninstructions from the flag State. The approach to theflag State often includes all three parts at the same time.This model also recognizes the well-settled principle ofright of visit, as codified in Article 110 of the Law of theSea Convention, as a basis for obtaining evidence withrespect to vessel nationality, and for limited interven-tions in cases of suspected piracy, slave trading, andunauthorized broadcasting.

Whatever non-military threats to maritime security atsea the international community may face, the unifyingprinciples of mutual cooperation and flag State jurisdic-tion provides the legal foundation for shipboarding, andthe subsequent exercise of enforcement jurisdiction.

Hence, the current initiative to amend the SUAConvention presents an important opportunity toenhance the tools available to combat today’s wide

ARTICLE IN PRESSJ.A. Roach / Marine Policy 28 (2004) 41–6664

range of threats of terrorism at sea. It also presents anopportunity to clarify the Convention’s unique role incombating other crimes of violence and threats ofviolence at sea. The amendments will require States tocriminalize activity that poses a great danger. Moreimportantly, for this paper, the amendments willestablish uniform standards for responding to threatsof terrorism and terrorist-like acts at sea. Thosestandards should result in rapid and definitive responsesto threats, particularly when time is of the essence andresponse assets are limited.

Appendix A. Agreement concerning co-operation in

suppressing illicit maritime and air trafficking in narcotic

drugs and psychotropic substances in the Caribbean area,

opened for signature at San Jose, Costa Rica April 10,

2003 (not in force) (excerpt)129

Operations Seaward of the Territorial Sea

Article 16—Boarding

1. When law enforcement officials of one Partyencounter a suspect vessel claiming the nationality ofanother Party, located seaward of any State’s territorialsea, this Agreement constitutes the authorisation by theclaimed flag State Party to board and search the suspectvessel, its cargo and question the persons found onboard by such officials in order to determine if the vesselis engaged in illicit traffic, except where a Party hasnotified the Depositary that it will apply the provisionsof paragraph 2 or 3 of this Article.

2. Upon signing, ratification, acceptance or approvalof this Agreement, a Party may notify the Depositarythat vessels claiming the nationality of that Partylocated seaward of any State’s territorial sea may onlybe boarded upon express consent of that Party. Thisnotification will not set aside the obligation of that Partyto respond expeditiously to requests from other Partiespursuant to this Agreement, according to its capability.The notification can be withdrawn at any time.

3. Upon signing, ratification, acceptance or approvalof this Agreement, or at any time thereafter, a Party maynotify the Depositary that Parties shall be deemed to begranted authorisation to board a suspect vessel locatedseaward of the territorial sea of any State that flies itsflag or claims its nationality and to search the suspectvessel, its cargo and question the persons found onboard in order to determine if the vessel is engaged inillicit traffic, if there is no response or the requested

129The Agreement has been signed, subject to ratification, by Costa

Rica, Dominican Republic, France, Guatemala, Haiti, Honduras,

Jamaica, the Netherlands and Nicaragua. The United States signed

definitively. The Agreement will enter into force when five States

consent to be bound by the Agreement.

Party can neither confirm nor deny nationality withinfour (4) hours following receipt of an oral requestpursuant to Article 6. The notification can be withdrawnat any time.

4. A flag State Party that has notified the Depositarythat it shall adhere to paragraph 2 or 3 of this Article,having received a request to verify the nationality of asuspect vessel, may authorise the requesting Party totake all necessary actions to prevent the escape of thevessel.

5. When evidence of illicit traffic is found as the resultof any boarding conducted pursuant to this Article, thelaw enforcement officials of the boarding Party maydetain the vessel, cargo and persons on board pendingexpeditious disposition instructions from the flag StateParty. The boarding Party shall promptly inform theflag State Party of the results of a boarding and searchconducted pursuant to this Article in accordance withparagraph 1 of Article 26 of this Agreement.

6. Notwithstanding the foregoing paragraphs of thisArticle, law enforcement officials of one Party mayboard a suspect vessel located seaward of the territorialsea of any State, claiming the nationality of anotherParty for the purpose of locating and examining thedocuments of that vessel when:

a.

it is not flying the flag of that other Party; b. it is not displaying any marks of its registration; c. it is claiming to have no documentation regarding

its nationality on board; and

d. there is no other information evidencing nation-

ality.

7. In the case of a boarding conducted pursuant toparagraph 5 of this Article, should any documentationor evidence of nationality be found, paragraph 1, 2 or 3of this Article shall apply as appropriate. Where noevidence of nationality is found, the boarding Party mayassimilate the vessel to a ship without nationality inaccordance with international law.

8. The boarding and search of a suspect vessel inaccordance with this Article is governed by the laws ofthe boarding Party.

References

[1] Ship seizes al-Qaeda suspects. The (Australian) Daily Telegraph,

July 16, 2002, available at http://www.dailytelegraph.news.co-

m.au/printpage/0,5942,4714493,00.html (last visited January 20,

2003).

[2] Canadian hands two al-Qa’ida suspects over to US after Gulf

chase, Toronto Globe and Mail, July 16, 2002 (internet version).

[3] Mintz, J. 15 freighters believed to be linked to Al Qaeda.

Washington Post, December 31, 2002, at A11, available at http://

www.washingtonpost.com/ac2/wp-dyn/A56442-2002Dec30?lan-

guage=printer (visited December 31, 2002).

[4] Rashbaum WK, Weiser B. A tramp freighter’s money trail to bin

Laden. New York Times, December 27, 2001, at B1, B5.

ARTICLE IN PRESSJ.A. Roach / Marine Policy 28 (2004) 41–66 65

[5] Osler, D. Investigators closing in on bin Laden vessels. Lloyd’s

List, December 12, 2001, at 1.

[6] Hijacked Taiwanese fishing vessel escorted home. Agence France

Presse, November 2, 2002.

[7] Hardesty G, Gittelsohn J. Captain of trawler used to smuggle

immigrants says he was kidnapped. The Orange County Register,

May 29, 2002.

[8] Nine Chinese fishermen arrested over ocean mutiny. Agence

France Presse, July 18, 2001.

[9] Bains C. Nine Chinese men detained after arriving on B.C. shores

await hearings. The Canadian Press, June 12, 2001.

[10] Reyes BJ, U.S. to prosecute cook accused of killing two

crewmates on the high seas. Associated Press, April 11, 2002.

[11] Registe G. Foreigners investigated for drugs, homicide in fatal

Caribbean boat accident. Associated Press Worldstream, March

20, 2001.

[12] Burdeau C. Search continues for Pakistanis who jumped ship. The

Advocate (Baton Rouge, LA), at 5B, July 16, 2002.

[13] O’Brien D. Officials not taking desertions lightly. The Virginian-

Pilot, Norfolk, VA, at A1, March 26, 2002.

[14] Gordon M. German and Spanish Navies take on major role near

Horn of Africa. New York Times, December 15, 2002, y 1, at 22.[15] Rising D. European navies take lead in lookout at sea for al

Qaeda. Washington Times, December 21, 2002, at A6.

[16] Lekic S. Canadian navy patrols Gulf for fleeing al-Qaida, Taliban.

Associated Press, December 23, 2002, archived at http://navyti-

mes.com/story.php?f=1-292925-1424019.php.

[17] Mintz J. 15 freighters believed to be linked to Al Qaeda.

Washington Post, December 31, 2002, at A1, A10, archived

at http://www.washingtonpost.com/wp-dyn/articles/A56442-

2002Dec30.html.

[18] Borger J, Whitaker B. US watching al-Qaida’s fleet.

The (London) Guardian, January 1, 2003, archived at http://

www.guardian.co.uk/international/story/0,3604,867160,00.html

(visited January 2, 2003).

[19] Wilkinson I. EU fleet is launched to head off immigrants. London

Daily Telegraph, January 29, 2003, available at http://www.tele-

graph.co.uk (visited January 30, 2003).

[20] Kalawsky K. Search for Al-Qaeda shorting fruitless. National

Post (Canada), September 10, 2002.

[21] Poulin SD. Implementing the Maritime Security Act of 2002. I

Benedict’s Maritime Bulletin No. 2, at 1, 80-92 (2003).

[22] Rubin A. The law of piracy. US Naval War College International

Law Studies, vol. 63, 1988.

[23] Comite International Maritime, Report of the Joint International

Working Group, Uniformity of Law Concerning Piracy and Acts of

Maritime Violence, in Yearbook 2000 Annuaire 415-434

(Singapore I).

[24] Comite Maritime International, Model National Law on Acts of

Piracy and Maritime Violence, in Yearbook 2001 Annuaire

(Singapore II), p. 598–607 (Final Report of the Joint Interna-

tional Working Group) and p. 214–23 (Report on the Conference

Session).

[25] Recommendations to Governments for preventing and suppres-

sing piracy and armed robbery against ships, MSC.Circ.622/Rev,

16 June 1999. Annexed is a Draft Regional Agreement on Co-

operation in preventing and suppressing act of piracy and armed

robbery against ships (Appendix 5). Archived at http://www.i-

mo.org/circs/msc/piracy/622rev1.pdf.

[26] Measures to prevent the registration of ‘‘phantom’’ ships, IMO

resolution A.22/Res.923, adopted on 29 November 2001.

[27] Implementation of resolution A.600(15)-IMO ship identification

number scheme, MSC Circular letter No. 1886, Rev. 2, June 27,

2002.

[28] Guidance to shipowners and ship operators, shipmasters

and crews on preventing and suppressing acts of piracy and

armed robbery against ships. MSC/Circ.623/Rev.3, 29 May

2002. Archived at http://www.imo.org/circs/msc/piracy/

623rev3.pdf.

[29] Directives for Maritime Rescue Co-ordination Centres (MRCCs),

MSC/Circ.967, 6 June 2000. Archived at http://www.imo.org/

circs/msc/72/967.pdf.

[30] Interim Procedures for MRCCs on Receipt of Distress Alerts,

MSC/Circ.959, 20 June 2000. Archived at http://www.imo.org/

circs/msc/72/959.pdf.

[31] Code of Practice for the Investigation of the Crimes of Piracy and

Armed Robbery against Ships, IMO Assembly resolution A.22/

Res.922, adopted 29 November 2001. Annexed to UN

General Assembly document A/57/72, 1 May 2002, archived

at http://ods-dds-ny.un.org/doc/UNDOC/GEN/N02/363/24/

IMG/N0236324.pdf?OpenElement.

[32] US Department of Transportation. National Planning Guide on

Port Security, 1997, archived at http://www.uscg.mil/hq/g-m/

nmc/security/portplan.htm.

[33] Maritime and Port Authority of Singapore, Piracy and armed

robbery against ships. Port Marine Circular No. 23 of 2002,

December 20, 2002, archived at http://www.mpa.gov.sg/home-

page/pcp/pc02-23.pdf.

[34] Australian Maritime Safety Authority. Piracy, armed robbery

against ships. Marine Notice 28/2002, December 16, 2002,

archived at http://www.amsa.gov.au/amsa/MN/MN2002/

mn2802.pdf.

[35] Australian Department of Foreign Affairs and Trade. Travel

advice: piracy at sea. November 14, 2002, archived at http://

www.dfat.gov.au/consular/advice/piracy.html.

[36] UK Maritime and Coastguard Agency. Piracy and armed

robbery. Marine Guidance Note (MGN) 75, 1998, archived at

http://www.mcagency.org.uk/mgn/mgn0075.htm.

[37] ICC, International Maritime Bureau, Weekly Piracy

Reports, archived at http://www.iccwbo.org/ccs/imb piracy/

weekly piracy report.asp.

[38] Oil Companies International Marine Forum (OCIMF). Piracy

and armed robbery against ships—code of practice for counter-

measures for use by terminal operators and other shore

authorities, 1st ed. 2000. See http://www.ocimf.com/index.cfm?-

pageid=20.

[39] BIMCO, The Baltic and International Maritime Council, The

BIMCO ShipMaster’s Security Manual, 1998, with revisions 2000.

See http://www.bimco.dk/under ‘‘BIMCO Publications A/S’’,

‘‘Security Manual’’.

[40] International Chamber of Shipping & International Shipping

Federation. Pirates and armed robbers—a master’s guide, 3rd ed.

1999. IMO doc. MSC 72/INF.3; archived at http://www.mar-

isec.org/pubs/pubcat.htm#pirates.

[41] Burnett JS. Dangerous waters: modern piracy and terror on the high

seas. NY: Dutton, 2002.

[42] Gottschalk JA, Flanagan BP. Jolly Roger with an Uzi: the rise

and threat of modern piracy. Annapolis, MD: US Naval Institute

Press, 2000.

[43] Disson DR. Piracy in Asia: a growing barrier to maritime trade.

The Heritage Foundation Backgrounder No. 1379, June 22, 2000,

archived at http://www.heritage.org/Research/AsiaandthePacific/

BG1379.cfm.

[44] Singapore Piracy Seminar archived at http://www.sils.org/semi-

nar/1999-piracy-00.htm, October 1999.

[45] Gray J, Monday M, Stubblefield G. Maritime terror: protecting

yourself, your vessel, and your crew against piracy. Boulder, CO:

Sycamore Island Press, 1999.

[46] Spanish official [Defense Minister Trillo] details high seas drama.

CNN.com report December 11, 2002, available at http://

www.cnn.com/2002/WORLD/europe/12/11/missile.ship.spain/in-

dex.html.

ARTICLE IN PRESSJ.A. Roach / Marine Policy 28 (2004) 41–6666

[47] Sanger & Shanker, Reluctant US gives assent for missiles to go to

Yemen. New York Times, December 12, 2002, at A1, A20.

[48] McMichael WH. Coalition crews intercept ship with hidden

warheads. Navy Times, December 23, 2002, at 24-25.

[49] Kirgis FL. Boarding of North Korean vessel on the high seas,

ASIL Insight, December 12, 2002, available at http://www.asi-

l.org/insights.htm.

[50] Wedgwood R. A pirate is a pirate. Wall Street Journal, December

16, 2002, at A12.

[51] Nandan S, Rosenne S, editors. III United Nations

Convention on the Law of the Sea 1982: A Commentary 201 at

z101.8(e), Dordrecht, The Netherlands: Martinus Nijhoff,

1995.