Law Enforcement Activities
A. Introduction
Law enforcement powers are essential to enable states to respond to maritime security threats. Although this point is simple enough in itself, the laws according states jurisdiction are complex because of the different rights and obligations recognized in the various maritime zones. The regulation of activities at sea is dependent on what authority states have in any given maritime area or over any particular vessel or installation or structure located at sea. The ability of a state to undertake law enforcement not only varies because of the different rights and duties existing in the different maritime zones, but also according to what particular threat to maritime security is being addressed. While there is a general interest in upholding order at sea, the accepted responses to achieve order have been countered by other interests, especially the importance of territorial integrity and the corollary of maintaining exclusive rights over vessels that are flagged to the state. This balancing act is constantly at stake in seeking to prevent and respond to maritime security threats.
Under international law, states have prescriptive jurisdiction, which refers to the power to adopt legislation and other rules, as well as enforcement jurisdiction, which refers to the power to give effect to those rules through police and/or judicial action.1 States are entitled to exercise jurisdiction on the basis of different connections that a particular activity might have with them. The bases of criminal jurisdiction most commonly recognized are territorial; nationality; passive personality; universal; and protective.2 Territorial jurisdiction entitles a state to regulate persons and activities within its territory. Nationality jurisdiction allows states to regulate the activities of persons who have the nationality of that state. On the basis of passive personality, a state may exercise criminal jurisdiction over a person who has committed offences that are harmful to nationals of that state. Universal jurisdiction refers to jurisdiction over particular activities that are considered so heinous (notably, piracy and war crimes)3 that all states may exercise jurisdiction over the perpetrators of those crimes irrespective of any other link a state may or may not have with the acts in question. Protective jurisdiction entitles states to exercise jurisdiction over activities considered prejudicial to the security of the state.4 As may be readily perceived, each of these bases of jurisdiction may be brought to bear in addressing maritime security threats, especially territorial, universal, and protective jurisdiction.
A state must lawfully exercise prescriptive jurisdiction in order for the possible exercise of enforcement jurisdiction to arise.5 Even once a state has adopted national law in accordance with its international law rights, full enforcement powers of those laws do not necessarily follow.6 This chapter focuses on the enforcement aspects of jurisdiction, although it seeks to acknowledge when difficulties associated with prescriptive jurisdiction arise.7 Both aspects of jurisdiction are critical to the protection of states from maritime security threats and this chapter explores the powers of states to take enforcement action against maritime security threats in relation to different ocean space and activities.
In the law of the sea context, Burke has well-summarized what enforcement jurisdiction involves:
Enforcement is the process of invoking and applying authoritative prescriptions. The range of operations includes surveillance, stopping and boarding vessels, search or inspection, reporting, arrest or seizure of persons and vessels, detention, and formal application of law by judicial or other process, including imposition of sanctions.8
As mentioned, the precise contours of these enforcement powers may vary depending on what activity is occurring, where it takes place and which state with a connection to that area or activity wishes to exercise enforcement jurisdiction. This chapter therefore highlights the powers of states in relation to different maritime security threats (as being those outlined in the Introduction).9 In this regard, the discussion distinguishes between the different maritime zones: ports and internal waters, the territorial sea, the contiguous zone, the EEZ, the continental shelf, and the high seas.10 Achieving an appropriate allocation of competences in each zone is critical to efforts to improve maritime security.11
In assessing the allocation of enforcement powers, reference is made to port states, coastal states, and flag states. Following the distinction adopted by Molenaar, ‘coastal states’ refers to those states that may exercise jurisdiction with respect to maritime zones over which they have sovereignty, sovereign rights, or jurisdiction, whereas port states may be the same as coastal states, but the jurisdiction exercised by port states will refer to authority over activities occurring outside the maritime zones of the coastal state and enforced in port.12 ‘Flag states’ refers to those states with powers over vessels bearing their nationality or registered to them.
There are two complicating factors that must be acknowledged at the outset in dealing with law enforcement activities to enhance maritime security. The first is the phenomenon of ‘flags of convenience’ or ‘open registries’. In order for companies to avoid being bound by the financial obligations, environmental standards, and/or legal requirements for operation of a particular state, their vessels are registered to a state with different, and usually lesser, standards. There is an obvious tension created because the flag state most commonly has exclusive jurisdiction over these vessels and attempts to ensure greater compliance with laws seeking to improve maritime security may well run against the interests of the flag state. Flag states need to take their responsibilities seriously if responses to maritime security threats are to be effective: ‘The ascription of nationality to ships is one of the most important means by which public order is maintained at sea.’13 The financial imperatives at stake have detracted from the willingness of flag states to embrace fully their duties in relation to their vessels. As will be discussed in this chapter, the failure of flag states to exercise sufficient authority over their vessels has led to efforts to grant other states powers over these vessels where possible.
A second complicating factor for law enforcement is the recognition of complete immunity accorded to warships, as well as ships owned or operated by a state and used only on government non-commercial service, from the jurisdiction of any state besides the flag state.14 This immunity does not necessarily allow for non-compliance with substantive rules, but does prevent the exercise of jurisdiction and measures of physical interference in the event of non-compliance.15 As a result, third state rights against foreign warships are virtually non-existent. The reciprocal advantages of this system are seen as indispensable for a state’s security.16 Instead, an attempt to exercise law enforcement jurisdiction against a foreign warship could be tantamount to a threat or use of force against a sovereign instrumentality of a foreign state.17 Although law enforcement powers at sea have been increased, the immunity of warships and other government vessels has not been altered in any way. To the extent that any maritime security threats or breaches are state sponsored, law enforcement powers against sovereign immune vessels are not available. Instead, questions involving the threat or use of force may arise and diplomatic or other avenues for dispute settlement must be pursued.
This chapter proceeds by considering each maritime zone in turn, beginning with those closest to the state’s land territory: ports and internal waters; the territorial sea; straits; the contiguous zone; the continental shelf; EEZ; and the high seas. For each zone addressed, particular issues for law enforcement in relation to maritime security threats are discussed, notably in relation to transnational crime, piracy, marine pollution, and IUU fishing. While there is some discussion of terrorism and the proliferation of weapons of mass destruction, the extent of recent legal development in this area has warranted that these maritime security threats are addressed separately in Chapter 4. In this chapter, it will be seen that there has been greater recognition of enforcement powers to respond to maritime security threats, and this recognition has usually come at the expense of sovereign interests in certain maritime areas and over vessels. These incremental changes may be viewed as necessary community responses for promoting and maintaining order at sea. While problems of a practical nature and of political will persist—and ideally must be overcome—the varied changes to the legal structures and principles are important contributions to the overall maritime security effort. Where legal ambiguities or gaps remain, interpretations that promote responses to maritime security should be viewed as in the broader interests of states and supported as such.
B. Ports and Internal Waters
States exercise sovereignty over their ports and internal waters.18 Flowing from this sovereignty is the right of the coastal state to control what vessels enter its ports and under what conditions.19 In many cases, access to port is governed by treaties between the states concerned,20 and states may have entered into agreements that permit free transit for trade purposes.21 In prescribing conditions for entry, states are entitled to regulate their ports consistent with the protection of various interests of the state.22 This regulatory power may provide an important means of responding to maritime security threats. The ISPS Code is an example of the actions that states may take to reduce the risk of terrorist attack against their port facilities and allows states to put in place notice requirements regarding the entry of a vessel into port.23 States may also regulate the access of vessels to their ports when the vessel poses environmental risks,24 which may be because of, inter alia, the general seaworthiness of the vessel25 or the nature of the cargo that the vessel is carrying.26 States nonetheless have an incentive to ensure that their security restrictions are consistent with international standards so that their ports are commercially viable and business is not re-directed to another, less demanding, port.27
A particularly strong protective mechanism that may be available to states is the possibility of simply closing a port to foreign shipping.28 Unlike the limitations regarding a coastal state’s rights to suspend passage through the territorial sea or in straits,29 ports may be closed to vessels flagged to particular states without concern that such closure is discriminatory in practice.30 Ports may be closed to safeguard good order on shore, to signal political displeasure, or to defend ‘vital interests’.31 In practice, de La Fayette has observed that ports have been closed ‘for various reasons related to the protection of public health and safety; to ships carrying explosives; to ships carrying passengers with contagious diseases; to ships carrying dangerous cargoes, such as hazardous wastes; for general coastal pollution protection; to substandard ships; and to ships presenting hazards to maritime navigation.32 As the interface between a state’s land and maritime territory, it stands to reason that broad port state control is a vital element in maritime security. This power has led to increasing responsibility being placed on port states to police activities that have been inadequately managed by some flag states, as will be discussed further below.
(1) Enforcement of laws for actions occurring in ports and internal waters
Every vessel remains subject to the rules of its flag state throughout its voyage, including when it is in the ports and internal waters of other states. As a matter of practice, coastal states will not usually exercise jurisdiction over matters that are essentially internal to the ship and which do not affect the interests of the port state.33 In this regard, various criminal matters occurring on vessels are referred to the flag state unless the criminal act is so serious as to warrant the intervention of the coastal state.34
Nonetheless, coastal states retain rights to enforce the laws of their territory over vessels when those vessels are in its ports and internal waters.35 As a general matter:
It is universally acknowledged that once a ship voluntarily enters port it becomes fully subject to the laws and regulations prescribed by the officials of that territory for events relating to such use and that all types of vessels, military and other, are in common expectation obliged to comply with the coastal regulations about proper procedures to be employed and permissible activities within internal waters.36
The restrictions that are imposed on the state’s application of its laws to vessels in ports only relate to the inapplicability of local labour laws and situations when a vessel has entered port as it is in distress.37 The immunity of warships remains intact, however.38
The ability of a state to exercise jurisdiction over acts of terrorism occurring in its ports is seen most clearly from the Rainbow Warrior incident, when French agents bombed and sank a Greenpeace vessel docked in Auckland, New Zealand.39 New Zealand arrested and convicted the two agents responsible under its domestic law.40 Although the vessel was registered in the United Kingdom and the crew member killed in the bombing was Dutch, New Zealand successfully pursued a claim for damages against France for what was essentially an act of state terrorism in its territory.41
(2) Enforcement of laws for actions occurring outside ports and internal waters
Coastal states will seek to exercise jurisdiction over vessels that voluntarily enter their ports on the basis that in port enforcement is simpler than seeking to stop, inspect, and arrest a vessel at sea.42 In these instances, this right of the coastal state is dependent on what actions the coastal state is seeking to regulate and where they occurred.43 As a general matter, coastal states will only be able to exercise jurisdiction under international law where there is a sufficiently close or substantial connection between the person, fact, or event and the state exercising jurisdiction.44
The most notable jurisdictional powers accorded to port states for activities occurring on foreign vessels beyond the port are in relation to vessel-source pollution. The scope of port state jurisdiction has been gradually increasing, partially as a response to the failure of flag states to control and regulate their vessels. Nonetheless, the recognition of port state authority to prevent and control pollution from vessels was not intended to impair the freedom of navigation.45 As a result, the parameters for port state action were carefully defined in UNCLOS. The opportunity to encroach on the jurisdiction of flag states over their vessels is nonetheless notable for broader consideration of allocation of competences in responding to maritime security threats.
Under Article 218 of UNCLOS, port states may undertake investigations and, where the evidence so warrants, institute proceedings in respect of any discharge from a vessel that has voluntarily entered the port when the discharge is in violation of international standards,46 and has occurred outside the internal waters, territorial sea, and EEZ of that port state.47 The enforcement jurisdiction of the port state over vessels for unlawful discharges on the high seas is limited to undertaking investigations, unless the discharge has caused or is likely to cause pollution in one of the maritime zones of the port state.48 When there has been an unlawful discharge in the maritime zone of another state, the port state may also undertake investigations and institute proceedings if warranted when that state, the flag state of the vessel, or a state damaged or threatened by the discharge violation so requests.49 In addition to the authority set forth in Article 218, states have agreed to regional standards through the adoption of a series of Memoranda of Understanding (MOU).50 These MOUs apply international treaties to which the states are parties.51 For enforcement, the memoranda contemplate states investigating, inspecting, and detaining vessels in port where various deficiencies in the vessel could cause serious damage to the marine environment.52
This authority of the port state has been described as a ‘radical development’ when compared to the more limited jurisdiction of coastal states.53 Typically, a state may not enforce laws against foreign vessels that take place outside of its waters as it would offend the principle of extra-territoriality,54 as well as defying flag state jurisdiction on the high seas. The seriousness of the problem of marine pollution, coupled with the deficiencies in enforcement engendered through the use of flags of convenience, has warranted changes to the previously existing legal structure. While there was clearly pause over the extent of intrusion into flag state authority, the fact that any change was broadly accepted is remarkable. It shows that when a problem is widely considered serious enough, changes in state authority will be endorsed.
Although circumscription clearly exists, there has at least been ‘indirect interference with the freedom of navigation’55 through the allocation of these powers to the port state. Becker has noted that while powers to enforce have been extended to the port state, there has not been any extension of prescriptive jurisdiction.56 The interference with the freedom of navigation is further minimized by requirements that only monetary penalties be imposed,57 and that foreign vessels may not be delayed for longer than essential for the investigations,58 and must be promptly released even when a violation has occurred, subject to reasonable procedures such as bonding or other appropriate financial security.59 Further, port states are not obliged to take any action but may do so, which allows for the possibility that any state may decide as a matter of comity to defer to flag state control. Thus, while an adjustment in allocation of competences has occurred to respond to marine pollution, it is not a sizable one.
Port states have also been accorded greater responsibilities to deal with unlawful fishing on the high seas, particularly in relation to straddling stocks and highly migratory species. Fishing vessels have always been subject to more stringent rights of access to ports compared to merchant vessels.60 Under Article 23 of the 1995 Fish Stocks Agreement,61 the port state is to take measures to promote the effectiveness of conservation and management efforts, including inspecting documents, fishing gear, and catch on board fishing vessels, when they are voluntarily in port. Consistent with the port state’s authority to impose conditions for access, Article 23 further permits states to adopt regulations ‘empowering the relevant national authorities to prohibit landings and transshipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of subregional, regional or global conservation and management measures on the high seas’.
Port state authority is being increasingly relied upon as a further means to address IUU fishing, and has recently been solidified through the adoption in 2009 of an Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing.62 This Agreement is based on the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing,63 and the 2005 FAO Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing.64 Under the 2009 Port State Measures Agreement, port states may require, at a minimum, information from foreign flagged vessels seeking to enter their ports as to the identity and journey of the vessel, its fishing and transshipment authorizations, and the catch onboard and the catch to be offloaded.65 Based on this information, as well as any additional information required, the port state will decide whether a vessel is to be authorized or denied entry into port.66 Entry must be denied when there is ‘sufficient proof that a vessel seeking entry… has engaged in IUU fishing or fishing related activities in support of such fishing’.67 However, entry may still be granted for the purpose of inspecting the vessel and taking ‘other appropriate actions in conformity with international law which are at least as effective as denial of port entry in preventing, deterring and eliminating IUU fishing’.68
Port states are to inspect a minimum number of vessels annually, and carry out those inspections consistently with the Agreement.69 Where a foreign flagged vessel has entered a port, it will be denied a range of port services if the port state finds that the vessel lacks authorization as required by its flag state for fishing or as required by a coastal state for fishing in areas under its ‘national jurisdiction’.70 Port services must also be denied if the port state has ‘reasonable grounds to believe that the vessel was otherwise engaged in IUU fishing or fishing related activities in support of such fishing’ unless the vessel can establish it was acting consistently with relevant conservation and management measures.71 Denial of port entry and port use, as well as results of inspections, are to be communicated to the flag state as well as other relevant states (the coastal state where IUU fishing occurred, and the state of nationality of the vessel’s master), regional fisheries management organizations (RFMOs), and the Food and Agriculture Organization (FAO).72
The enforcement powers of the port state are not augmented by the 2009 Port State Measures Agreement beyond the ability to undertake an inspection. The port state must otherwise show a sufficient jurisdictional nexus to warrant any enforcement action against the foreign flagged vessel, or be authorized by the flag state to take particular measures.73 The flag state, following port state inspection, ‘shall immediately and fully investigate the matter and shall, upon sufficient evidence, take enforcement action without delay in accordance with its laws and regulations’.74 The onus therefore remains on the flag state and responsibility for law enforcement against IUU fishing also continues to rest with the flag state. Nonetheless, the internationally recognized powers of the port state to conduct inspections and to deny entry or port services may provide another tool to make IUU fishing a more difficult and perhaps less financially rewarding activity. When these powers (once the Agreement enters into force) are coupled with measures taken through RFMOs to address IUU fishing, including the implementation of catch documentation schemes, the disincentives for IUU fishing are strengthened. What remains important is ensuring that port states become parties to the 2009 Port State Measures Agreement and follow through on the commitments contained therein. Otherwise, vessels will divert to private ports or ports not operating under these regimes and the problem remains.
(3) Conclusion
There has undoubtedly been an increase in enforcement authority that may be exercised over vessels coming into port. This development is necessary in the face of reduced control exercised by flag states, particularly flag of convenience states. Increasing port state control has been viewed as preferable to allowing greater coastal state jurisdiction.75 Yet, as mentioned, one drawback to port states taking on a greater role in policing activities such as marine pollution from vessels and unlawful fishing, particularly when this is irrespective of where those activities occurred, is that there is potential for ‘open ports’ or ‘ports of convenience’76 to emerge in light of the economic advantages gained from increased port activity. Vessels that would be subject to inspections of enforcement action in some ports may well divert to others that do not threaten comparable responses and these ports will derive economic benefits through the payment of customs dues and the like, as well as increased employment. Widespread political will required to confront IUU fishing has been slow, but the possibility of utilizing port state authority at least stands as another example of states attempting to defeat the problems faced by the use of flags of convenience in addressing particular maritime security threats. Coastal state sovereignty over ports and internal waters thus provides critical legal and practical bases to undertake a range of measures to respond and prevent maritime security threats. Promoting port state enforcement powers, even with the ‘open port’ risk, is a logical step to enhance maritime security.
C. Territorial Sea
Coastal states have sovereignty over their territorial sea.77 This sovereignty extends to the bed, subsoil, and the airspace over the territorial sea.78 As a consequence of this sovereignty, the coastal state is generally said to have rights comparable to those enjoyed over its land territory, particularly with regard to rights to enact legislation and enforce that legislation in this maritime area.79 Yet the right of coastal states to prescribe legislation faces limitations as part of the effort to balance their interests with those of flag states with vessels traversing these waters.80 Article 21 of UNCLOS sets out a list of topics for which coastal states may adopt laws and regulations.81 Certain limitations on the coastal state’s prescriptive jurisdiction include not discriminating against ships of any particular state or ships carrying cargo for any particular state,82 and not applying to the design, construction, manning, or equipment of foreign ships.83 The enforcement jurisdiction of the coastal state largely mirrors its rights to prescribe jurisdiction,84 and is considered in this section.
(1) Innocent passage and exercise of criminal jurisdiction
As discussed in Chapter 2, the coastal state’s sovereignty over the territorial sea is subject to the right of all vessels to exercise innocent passage.85 Activities that may be considered as threats to the maritime security of the coastal state, such as various military-related activities,86 fishing, willful and serious pollution, and customs and immigration violations,87 are all considered as prejudicial to the peace, good order, or security of the coastal state and thus render passage non-innocent. These activities are excluded from the scope of innocent passage with respect to vessels that are proceeding to or from the internal waters and ports or roadsteads of a state, as well as vessels that are traversing the territorial sea without entering these areas.88 The coastal state is then entitled to ‘take the necessary steps in its territorial sea to prevent passage which is not innocent’.89
Beyond these steps in response to non-innocent passage, coastal states also have recognized authority to exercise civil and criminal jurisdiction in particular cases. The exercise of criminal jurisdiction under Article 27 of UNCLOS is most likely to be relevant in dealing with threats to maritime security.90 This provision addresses the right of the coastal state to exercise criminal jurisdiction on board a foreign ship, and only permits arrest or investigation in the following circumstances:
(a) if the consequences of the crime extend to the coastal state;
(b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;
(d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.91
Questions may arise as to whether the activities rendering passage non-innocent are necessarily ‘of a kind to disturb the peace of the country or the good order of the territorial sea’ or whether the consequences of the activities extend to the coastal state, depending on the precise circumstances of the activities concerned. A coastal state could well be justified in taking the position that if an act is prejudicial to its peace, good order, or security then it should also be seen as disturbing the peace of the country.92 Such an approach is now warranted when the importance of responding to maritime security threats is taken into account.93 In that instance, the coastal state would need to have national legislation that reflects a variety of crimes associated with the activities viewed as prejudicial to its peace, good order, and security. The full range of enforcement actions would then be open to it.94 This approach enables a variety of maritime security threats to be addressed by the coastal state. This is not to suggest that it inevitably follows that the violation of any coastal state law renders passage non-innocent, always implicating what enforcement actions may be taken by the coastal state.95 In each instance, consideration will be needed to determine if a coastal state may take steps to prevent passage that is not innocent and whether further enforcement actions are permissible and warranted. This approach not only protects the exclusive interests of the coastal state, but also supports the inclusive interest in maritime security when considering the repercussions that may flow to other states as a result of maritime security breaches.
The designated instances for exercising criminal jurisdiction on board foreign ships are only relevant for ships that are in lateral passage, that is, not entering or leaving internal waters of the coastal state,96 and do not affect the coastal state’s right to exercise enforcement jurisdiction against a ship leaving its internal waters.97 Arrest and investigation are also permissible if the foreign ship is intending to enter the internal waters of the state in relation to crimes committed inside or outside the territorial sea.98
For coastal states to be able to take the necessary steps to respond to maritime security threats, it is appropriate that coastal state’s subjective assessment of the actions of vessels in relation to non-innocent passage or crimes ‘of a kind to disturb the peace of the country’ should prevail. Under the doctrine of sovereign immunity, the passage of warships and other government vessels will still be protected against any coastal state assertion of enforcement jurisdiction. Uncertainty about the extent of the coastal state’s powers has sought to be removed through developments relating to coastal state action for unlawful fishing and marine pollution, as discussed in the following two sections.
(2) Increasing enforcement powers of the coastal state: marine pollution
The enforcement powers of the coastal state have been expanded under UNCLOS in order to address threats derived from marine pollution. The coastal state may determine that passage is not innocent if an act of willful and serious pollution occurs.99 Criminal jurisdiction may also exist if the act of pollution is such that the ‘consequences of the crime extend to the coastal State’.100 Certainly intentional acts of pollution are those that have triggered the most concern as a threat to maritime security.101 Enforcement jurisdiction of the coastal state has been extended to address marine pollution that may have been accidental. Article 220(2) permits coastal state enforcement of its pollution laws where there are clear grounds for believing that a violation has occurred while navigating in the territorial sea.102 The enforcement actions permitted against vessels for violations occurring while navigating in the territorial sea include undertaking physical inspection, instituting proceedings and detaining the vessel.103 The coastal state may also take enforcement actions against vessels navigating in its territorial sea for pollution violations that occurred in its EEZ.104 These powers have thus gone beyond what has traditionally been accepted for coastal state action against foreign flagged vessels navigating in its territorial sea, and allows for more action than may have been possible if the pollution was considered as abrogating the right of innocent passage.
(3) Increasing enforcement powers of the coastal state: fisheries
Unlawful fishing within the territorial sea renders the passage of that fishing vessel to be non-innocent,105 and entitles the coastal state to take the necessary steps in its territorial sea to prevent passage which is not innocent.106 Criminal jurisdiction could also be exercised under Article 27 of UNCLOS on the basis that unlawful fishing disturbs the good order of the territorial sea, as well as potentially having consequences that extend to the state given the importance of a national fishing industry. In addition, under the 1995 Fish Stocks Agreement, a coastal state may also be able to board and inspect a foreign flagged fishing vessel for unlawful fishing on the high seas when that vessel has subsequently entered ‘an area under the national jurisdiction’ of the inspecting state.107 To do so, the coastal state must be a member or participant in an RFMO and have clear grounds for believing that a fishing vessel flagged to another state party has engaged in unlawful activity in a high seas area subject to conservation and management measures by the RFMO.108
Similarly with marine pollution, what is notable about the increase in enforcement powers here is that a state has greater powers to take action against foreign flagged vessels for acts occurring outside its national jurisdiction. The expanded authority of the state in this regard, as with the expanded authority of the port state, may further be considered as a response both to poor or insufficient enforcement efforts by flag states and in relation to problems perceived of sufficient international importance to warrant such action.
(4) Encroachments on exclusive enforcement jurisdiction of coastal state
As coastal states exercise sovereignty over the territorial sea, it is generally accepted that other states are not permitted to exercise enforcement jurisdiction within these areas. This situation can cause difficulties as foreign vessels engaged in unlawful activities beyond the territorial sea may flee to this zone precisely because a third state is not entitled to enter the area to arrest the vessel and its crew.109 The problem is compounded when the coastal state in question lacks the resources, or does not consider it to be a priority, to police certain criminal activities within its territorial sea. These limitations have led to agreements between states where coastal states grant permission for other states to exercise enforcement jurisdiction within their territorial sea, subject to various conditions, in order to respond to particular maritime security threats. A notable example of this phenomenon is seen in the 2008 CARICOM Maritime and Airspace Security Co-operation Agreement, which allows for state parties to patrol and conduct law enforcement operations in the territorial seas of other states parties in response to a wide variety of maritime security threats.110 More typically, states have concluded treaties expanding law enforcement powers in relation to particular maritime security concerns.
Drug trafficking has been one of the primary activities that has led to coastal states showing greater flexibility in allowing other states to exercise enforcement jurisdiction within their territorial sea. Coastal states may exercise criminal jurisdiction in respect of offences committed on board foreign ships where ‘necessary for the suppression of illicit traffic in narcotic drugs’.111 This authority arguably applies even if a vessel is not traversing the internal waters or stopping at the port of the coastal state, because the very transport of these prohibited substances in the territorial sea would fall within the ‘illicit traffic in narcotic drugs’. In view of the recognized authority of the coastal state in this regard, drug-trafficking treaties have usually only applied to activities occurring outside the territorial sea. The inadequacy of this strict division between coastal state authority and enforcement jurisdiction of other states against foreign vessels outside the territorial sea has resulted in change under bilateral and regional agreements.
The 2003 Agreement Concerning Co-operation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area includes innovative provisions allowing for the possibility of third states exercising law enforcement powers within the territorial seas of states parties to this agreement.112 Such authorization may be granted by the ‘competent national authority’ designated under the Agreement. It was noted during the negotiations: ‘From a legal point of view, the most sensitive provisions of the regional agreement are the ones concerning operations in the territorial waters of a State.’113 As a result, states parties sought to strike a balance between the need for enforcement cooperation in addressing drug trafficking with sovereignty concerns.114 Article 11 sets out general principles to govern these operations, and reaffirms that law enforcement operations in the territorial sea are subject to the authority of the coastal state. Consent is therefore required for law enforcement to occur and that consent may be subjected to any directions and conditions by the relevant coastal state.115 Moreover, the coastal state has priority in law enforcement operations as they are to be carried out by, or under the direction of, the coastal state’s own officials.116 Random patrols within or over the territorial sea by law enforcement officials of another state are not permitted.117 Another safeguard for the coastal state may be drawn from Article 40, which allows for the temporary suspension of obligations relating to the territorial sea if ‘required for imperative reasons of national security’.118 Further, any authorized and necessary use of force in law enforcement action must respect laws of the coastal state.119
Article 12 of the 2003 Caribbean Agreement is then the critical provision for the procedure and scope of law enforcement operations in the territorial sea. The scenario addressed is where a suspect vessel has fled into the territorial sea of a state party when being pursued by the law enforcement officials of another state party. Under Article 12, the suspect vessel may be followed into the territorial sea and actions taken by the law enforcement officials of the other state to prevent its escape, and to board and secure the vessel and persons on board while waiting for a response from the coastal state if (a) authorization has been received from the national competent authority of the coastal state or if (b) notice is provided to the coastal state prior to entry into the territorial sea ‘if operationally feasible or failing this as soon as possible’.120 Notice will be sufficient in situations when there is no official from the coastal state embarked on the law enforcement vessel to grant consent, nor is there a law enforcement vessel of the coastal state in the vicinity ‘immediately able to investigate’.121 As another salve to any perceived forfeiture of sovereignty under the 2003 Caribbean Agreement, states parties may elect whether they prefer (a) or (b) and in the absence of election of either method, are deemed to have elected (a) whereby authorization from the coastal state is required for the suspect vessel to be followed into its territorial sea and secured by the other state’s law enforcement officials.122 A similar system is put in place in relation to aircraft.123 If a search reveals evidence of illicit drug trafficking, the coastal state is to be promptly informed and the suspect vessel, its cargo, and those on board are to be detained and taken to a port within the coastal state, unless otherwise directed by the coastal state.124
The 2003 Caribbean Agreement is a significant advance in international cooperation to deal with illegal drug trafficking because of the potential law enforcement authority granted to third states within another state’s territorial sea. It should also be noted that this same Agreement admits of the possibility of such authority being extended to a coastal state’s internal waters (or parts thereof), which are otherwise excluded from the scope of the treaty.125 Including an option for such an extension was appropriate for those states that are concerned that areas immediately adjacent to the territorial sea would otherwise become safe havens for drug traffickers.126
Encroachments on the coastal state’s exclusive enforcement jurisdiction in the territorial sea may also be seen in responses to acts of piracy and armed robbery.127 As the current definition of piracy is focused on acts on the high seas, and many piratical acts occur within the territorial seas and internal waters of states (armed robbery), there have been calls to develop a broader approach encompassing all maritime zones.128 Further, it has been proposed that duties of cooperation related to combating piracy should be extended to maritime zones under the sovereignty of coastal states.129 Jesus has argued that there should be some modification to the geographical scope of the rules relating to piracy given that the ‘majority of coastal states do not have the means and the financial wherewithal to combat armed robbery against ships in their territorial sea or archipelagic waters, especially against the new and powerful international piracy syndicates’.130 He further asserts that pirates deliberately choose to operate within the territorial sea of particular states precisely because they know foreign warships may not pursue them or enter these waters to stop them and that the enforcement authorities of the coastal state are otherwise unable to provide sufficient policing.131 In these circumstances, Jesus rightly questions whether it is legitimate to allow foreign ships, and those on board, mercilessly to fall prey to such attacks.132 Moreover, he argues that since no state takes responsibility for the actions of pirates in their territorial seas and pirates attack vessels of any state indiscriminately then the same reasons for according jurisdiction over pirates on the high seas apply equally to areas under the sovereignty of the coastal state.133 While it is arguable that a state could be held internationally responsible for a failure to protect foreign shipping adequately within its territorial waters,134 the more salient point rests with the exploitation of existing legal rules by the criminals. In these circumstances, there should be scope for reconsideration of these rules.
Third party involvement in improving coastal state responses to armed robbery against vessels may range from logistical and resource support to law enforcement activities. Efforts to respond to piracy off parts of the African coast include the United States’ African Coastal Security Program, where the United States provides the region with additional naval vessels, radar and communications equipment, coastguard training and coordination to inter alia improve the capability of the navies and coastguard services of African governments and combat piracy.135 This programme clearly falls at one end of the spectrum in terms of not encroaching on territorial sea sovereignty.
By contrast, the prevalence of piratical acts off the coast of Somalia led to the adoption of Security Council resolutions authorizing certain enforcement action by foreign vessels within the territorial sea of Somalia.136 The resolutions do not purport to modify in any way the current situation under the law of the sea in addressing acts of armed robbery within the territorial sea of a coastal state and was predicated on the consent of the transitional government of Somalia (points reinforced by each of the delegates who spoke at the adoption of the first such resolution).137 Nonetheless, this step by the Security Council is at least an indication that there are means available for foreign warships to take action against armed robbery in the territorial sea of a coastal state on a collective and cooperative basis. While coastal state consent was underlined as an important element in Security Council authorizations to take action in Somalia’s territorial sea, it is nonetheless notable that the United States and France had already pursued pirates in this sovereign area and not been censured by the United Nations for doing so.138
A further response to piracy off Somalia has been an invitation from the Security Council that states enter into ship-rider agreements whereby law enforcement officials of countries willing to take custody of pirates would travel on the vessels of states and regional organizations fighting piracy off the coast of Somalia.139 Such agreements would still require the consent of Somalia’s transitional government for any exercise of third state jurisdiction in Somalia’s territorial waters.140 The use of embarked officers has been included in a non-binding Code of Conduct among states in the Western Indian Ocean and Gulf of Aden region.141
Post-September 11, states have also considered what steps might be taken within the territorial sea in response to different terrorist threats. Questions may arise as to whether various terrorist activities—surveillance and other preparation for a terrorist act, shipment of supplies for the perpetration of an act, trading of goods intended to finance terrorist groups—violate the right of innocent passage.142 The coastal state is likely to have authority to proscribe acts of maritime terrorism as different crimes, on the basis that ‘it may be conspiracy to commit a terrorist act and preparatory steps towards such an act may be criminal matters, the consequences of which might extend to the coastal State, or disturb its peace or good order’.143 Each coastal state therefore has the legal authority to take necessary action, but third states may be concerned about the capacity or the willingness of the coastal state to do so.
Beckman has proposed that a new treaty should be adopted to address the obligations of coastal states to deal with terrorism against international shipping in territorial seas, straits, and archipelagic waters.144 In this regard, he favours an international agreement that would promote cooperative endeavours between the coastal state and other states for the purposes of suppressing terrorist attacks as opposed to powerful maritime states potentially undertaking unilateral action in these waters under a broad, and possibly unlawful, definition of self-defence.145 This approach continues to show deference to the sovereignty of the coastal state while still seeking a means of responding to maritime security concerns.
Overall, it may be seen that extensive powers for enforcement action are accorded to coastal states in their territorial seas, including over activities that are threats to maritime security. Coastal states have strongly resisted the possibility of third states exercising enforcement jurisdiction within their territorial seas, precisely because it is seen as a threat to the sovereignty of the coastal state. However, the inadequacies in policing, because of lack of resources or interest, have led to agreements between the states concerned to permit other states to exercise enforcement powers within another state’s territorial sea. These agreements could be seen as recognition that the greater interest is in responding to the maritime security threat rather than the sovereign interests of the state being all important. The shift in this regard is slight, however.
D. Straits
When considering the enforcement powers of coastal states in straits subject to the transit passage regime,146 it may be noted at the outset that there ‘is no direct prohibition of enforcement measures by the coastal State in straits, nor any direct recognition of them’ in UNCLOS.147 Article 42 permits states bordering straits to adopt laws and regulations relating to transit passage in respect of a range of specific topics, including for navigation, pollution, fishing, customs, and immigration.148 These laws and regulations are not to ‘discriminate in form or in fact among foreign ships or in their application have the practical effect of denying, hampering or impairing the right of transit passage’.149 Despite the existence of these prescriptive powers, the absence of explicit enforcement powers within the text of UNCLOS has led some commentators to suggest that the coastal state has no enforcement jurisdiction in straits.150 Shearer has considered that there may be limitations on the enforcement powers of states bordering straits by reference to Article 233, which allows for enforcement measures in straits only where a violation of either certain navigation or pollution laws causes or threatens major damage to the marine environment of the straits.151 This absence of enforcement jurisdiction provides user states with ‘unlimited and maximum freedom of passage’.152
To deny the littoral states enforcement powers in straits is quite problematic in addressing maritime security concerns. The security of international shipping may be jeopardized if a state bordering a strait is unable to enforce requirements relating to, for example, navigational aids or criminal activity. Under Article 43 of UNCLOS, user states and states bordering a strait should cooperate in relation to necessary navigational and safety aids or other improvements in aid of international navigation and for the prevention, reduction and control of pollution from ships. To this end, separate agreements may be adopted to allow for explicit enforcement powers on the part of the littoral states. Such agreements could also be used to defray the expense of policing the straits to prevent acts of piracy or other attacks on ships.153 However, it would have to be anticipated that an increase of powers over straits would be resisted because of the possible imposition on the freedom of navigation.154 The freedom of navigation holds particularly high importance in the straits regime in view of the compromise that was reached in the creation of transit passage in response to greater claims of sovereignty in extending the breadth of the territorial sea.155
While it could be validly argued that greater restrictions on the freedom of navigation may be warranted as a means of improving maritime security (in terms of the coastal state being permitted to exercise enforcement jurisdiction over actions that would threaten maritime security in the strait), an alternative perspective is to support the internationalization of the strait. Such internationalization refers to other states apart from the littoral state having authority to take steps to improve maritime security—in terms of preventive and defensive actions taken against pirates, increased monitoring and patrolling of the waters of the straits, and pursuit and arrest of vessels engaged in various unlawful activities (such as drug trafficking, illegal fishing, or people smuggling). This approach would of course cut into the sovereignty of the littoral state.
The United States considered this internationalized approach to strait security in relation to the Singapore and Malacca Straits. These straits are well-recognized as a hub of international shipping and, as a result, a terrorist attack in this area would have a devastating impact on international trade. Moreover, the Singapore and Malacca Straits have been rife with piracy and other unlawful activity. Singapore, Indonesia and Malaysia had undertaken a range of initiatives to improve surveillance and policing of the areas in the 1990s.156 However, the security of the area took on new importance following the September 11 terrorist attacks. In 2004, the United States proposed a Regional Maritime Security Initiative (RMSI) to address threats of piracy, as well as maritime terrorism, people smuggling, and drug trafficking, in the Straits of Malacca and surrounding areas.157 Although Singapore is reported to have favoured RMSI, Malaysia and Indonesia were more reticent given their views of security as a domestic issue to be resolved internally, or on a regional basis, and that involvement of the United States would be more likely to foment terrorist activity than deter or suppress it.158 Japan’s offer of its naval forces to help patrol the area was also rejected.159 Malaysia and Indonesia were further concerned that it might compromise their sovereignty and sovereign rights in the area.160 Indonesia, Malaysia, and Singapore instead moved to coordinated patrols,161 and launched an ‘Eyes in the Sky’ programme with Thailand involving combined maritime air patrols to improve maritime domain awareness over the Straits of Malacca and Singapore.162
In the absence of specific agreement, the ability of a strait state to respond to maritime security threats would be limited to instances where the conditions for transit passage or innocent passage have not been met. For straits subject to the regime of transit passage, if a vessel violates the right of transit passage then it will fall under the requirements of innocent passage.163 If the activity in question also violates the standards for innocent passage then the enforcement rights of the coastal state would then include taking steps to prevent passage that is not innocent.164 This approach may ultimately be sufficient given the generalities and scope of coastal state action in response to unlawful passage.165
In view of the lack of specific enforcement powers otherwise accorded to states bordering international straits, opportunities to take steps to prevent or respond to maritime security threats could well be limited. This position may be lamented in view of the fact that international straits are of such fundamental importance to international shipping and hence are in greatest need of protection. The entrenched importance of the common interest in navigation is likely to prevent meaningful developments that would augment coastal state authority as a means to improve maritime security. It would seem that the balance of interests that had to be achieved to secure passage through international straits remains too delicate to risk any adjustment.166
E. Contiguous Zone
The contiguous zone is an area extending 24 miles from the baselines of a coastal state. The origins of the contiguous zone may be traced to the desire of the coastal state to provide greater protection to its interests, even if not going so far as to claim sovereignty over a wider expanse of ocean area.167 Although the contiguous zone is not recognized as a security zone, the protection currently afforded to the coastal state in the contiguous zone does accord with allowing for rights over certain activities that may be construed today as a threat to maritime security. In particular, Article 33 of UNCLOS refers to customs, fiscal, immigration, or sanitary laws, which may be relevant to address crimes associated with drug and people trafficking, or even potentially terrorism (if, for example, the activities concerned terrorist financing or smuggling contraband into a state for use in a terrorist offence).168 The contiguous zone is sometimes used by states (controversially) to assert a security jurisdiction that then requires notification of voyages by foreign warships, or foreign vessels generally.169
Law enforcement may be undertaken by the coastal state in the contiguous zone. According to Article 33, states may exercise the control necessary to prevent and punish the infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea in a zone extending 24 miles from its baselines. In dissection of Article 33, Shearer notes that the first limb ‘applies to inward-bound ships and is anticipatory or preventive in character; the second limb, applying to outward-bound ships, gives more extensive power, and is analogous to the doctrine of hot pursuit.’170
Coastal states only have ‘control’ and not sovereignty, sovereign rights, or jurisdiction in the contiguous zone. Shearer considers that ‘control’ must therefore ‘be limited to such measures as inspections and warnings, and cannot include arrest or forcible taking into port’.171 However, it has also been argued that while the scope of the contiguous zone is limited in that it only refers to three specific categories of laws and regulations, it provides powers of prevention as well as repression. Dupuy and Vignes consider that ‘this power can be exercised by means of all forms of constraint, such as arresting the ship, escorting it to the ports of the coastal State, the carrying out of legal measures, seizure, etc.’.172 In this regard, the primary limitation is the observance of proportionality.173 This latter interpretation is preferable in a more progressive approach to improving the ways states may address maritime security concerns. To this end, states could give greater attention to the scope of powers allowed in the contiguous zone to address maritime security threats.
F. Exclusive Economic Zone
In the EEZ, coastal states have sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources of these waters and with regard to other activities for the economic exploitation and exploration of the zone.174 Coastal states also have jurisdiction with regard to the establishment and use of artificial islands, installations and structures; marine scientific research; and the protection and preservation of the marine environment.175 Within the EEZ, other states enjoy the freedoms of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms.176
In view of the delicately balanced interests at stake in this area, UNCLOS sets up a carefully defined regime for the enforcement of laws relating to pollution,177 and fishing,178 so as to minimize the likelihood of coastal states interfering unnecessarily with navigation.179 Coastal states’ enforcement jurisdiction extends to authority to seize vessels violating coastal state laws and regulations related to these issues.180 A number of safeguards are included in UNCLOS to protect navigational rights in the face of this assertion of coastal state authority. As Becker notes, ‘the UNCLOS provisions place particular emphasis on system concerns: how coastal states must manage their living resources in the EEZ while keeping in mind the needs of the international system as a whole.’181
As UNCLOS is explicit about what enforcement powers a coastal state has, it could be argued that the enforcement of laws relating to maritime security more generally stand on less sure footing. The precise articulation of the enforcement rights accorded to coastal states in the EEZ may counter any argument that enforcement of security requirements is permissible under UNCLOS, as the coastal state only has economic-related rights in the EEZ. The ITLOS decision in M/V ‘Saiga’ (No 2) provides some indication that states may not seek to enforce laws that are not specifically related to coastal state rights in the EEZ.182 In that case, the M/V ‘Saiga’, an oil tanker sailing under the flag of Saint Vincent and the Grenadines, entered the EEZ of Guinea to supply fuel to three fishing vessels. Guinean customs patrol boats arrested the vessel outside of Guinea’s EEZ and subsequently detained the vessel and crew members. Guinea asserted that the arrest of the M/V ‘Saiga’ had been executed following a hot pursuit motivated by a violation of its customs laws in the contiguous zone and ‘customs radius’ of Guinea.183 Under Guinea’s Customs Code, the ‘customs radius’ extended 250 kilometres from its coast. Saint Vincent and the Grenadines maintained that Guinea was not entitled to extend its customs laws to the EEZ and that the Guinean action had interfered with the right to exercise the freedom of navigation as the supply of fuel oil fell within ‘other internationally lawful uses of the sea related to’ the freedom of navigation.184 The Tribunal determined that the application of customs laws to parts of the EEZ was contrary to UNCLOS.185 From this case, it seems that coastal states’ enforcement powers in the EEZ are therefore not likely to be recognized as lawful beyond those relating to the activities over which coastal states are specifically attributed jurisdiction or sovereign rights.
It should nonetheless be recalled that Article 58(2) of UNCLOS preserves the high seas regime, including certain law enforcement powers, to the extent that they are not incompatible with the EEZ regime.186 On this basis, law enforcement activities pursuant to the right of visit, as discussed below in relation to the high seas, are applicable within the EEZ. Certainly, the practice of states tends to indicate that coastal state powers in the EEZ have expanded, with Van Dyke going so far as to argue that, ‘[a] new norm of customary international law appears to have emerged that allows coastal states to regulate navigation through their EEZ based on the nature of the ship and its cargo.’187 This development has particularly been seen in the prohibition of transit of shipments of ultrahazardous nuclear cargoes through the EEZ.188 The status of any new customary principle allowing for coastal state law enforcement over activities beyond those specified in UNCLOS will usually be open to challenge given the generally accepted importance of protecting navigational rights within this maritime zone.189 It is therefore understandable that when it has been agreed that coastal states should have new law enforcement powers, these were carefully laid out in UNCLOS or other multilateral treaties. This section focuses on the two accepted activities over which coastal states have enforcement authority in the EEZ under UNCLOS: fishing and pollution.
(1) Fishing
Article 73(1) of UNCLOS allows the coastal state to take various measures to ensure compliance with its laws and regulations for the exploration, exploitation, conservation, and management of the living resources in its EEZ. Expansive prescriptive powers are reinforced by broad enforcement powers that enable coastal states to board, inspect, arrest, and institute judicial proceedings against vessels found in violation of fishing laws and regulations. Additional measures that coastal states have taken, or may take, to enhance enforcement with fishing laws and regulations include prescribing sea lanes for transiting fishing vessels; requiring report of entry and exit together with route used; and stowage of fishing gear during passage.190 The penalties imposed by the coastal state may not include imprisonment, in the absence of agreements to the contrary by the states concerned, or any form of corporal punishment.191 In cases of arrest or detention of foreign vessels, the coastal state must promptly notify the flag state through appropriate channels of the action taken and of any penalties subsequently imposed.192
While a coastal state has ample rights to regulate fishing in its EEZ and the legal authority to enforce those rules, the practical reality is that there is usually a large expanse of water involved and considerable resources are required to undertake adequate policing. Fishing vessels have become increasingly sophisticated both in the techniques used, enabling large quantities of fish to be caught, and in the technology available to locate fish stocks and to avoid detection by coastal state authorities. These factors contribute to IUU fishing being perceived as a threat to the economic security of the coastal state.
The large incidence of IUU fishing indicates that the legal framework devised for prescribing and enforcing fisheries laws is inadequate.193 While there are of course practical limitations imposed on coastal states in terms of the capacity and resources that may be required to detect, arrest and prosecute unlawful fishing vessels, the current legal regime tends to underline these problems rather than provide any panacea. One such weakness relates to the right of hot pursuit, which is discussed in relation to the high seas below, and another is the procedure available under UNCLOS allowing flag states to challenge any failure by the coastal state to promptly release foreign flagged vessels upon payment of a reasonable bond.
The prompt release obligation is intended to protect the navigational rights of the vessels concerned, and is reinforced by the availability of a compulsory dispute settlement procedure before the International Tribunal for the Law of the Sea.194 Article 292 permits the institution of legal proceedings against the detaining state when it is alleged that the detaining state has not complied with the prompt release requirement of, inter alia, Article 73, paragraph 2.195 The prompt release proceedings under Article 292 can only deal with the question of release and the posting of a reasonable bond or other financial security, and not aspects relating to the merits of any alleged violations of a coastal state’s fisheries laws. Article 292(1) of UNCLOS provides that: