In this comparative study of shipping interdiction, Douglas Guilfoyle considers the State action of stopping, searching and arresting foreign flag vessels and crew on the high seas in cases such as piracy, slavery, drug smuggling, fisheries management, migrant smuggling, the proliferation of weapons of mass destruction and maritime terrorism. Interdiction raises important questions of jurisdiction, including: how permission to board a foreign vessel is obtained; whether boarding State or flag State law applies during the interdiction (or whether both apply); and which State has jurisdiction to prosecute any crimes discovered. Rules on the use of force and protection of human rights, compensation for wrongful interdiction and the status of boarding State officers under flag State law are also examined. A unified and practical view is taken of the law applicable across existing interdiction regimes based on an extensive survey of state practice.
, at least 13 vessels and 230 crew were being held to ransom off Somalia. 1 Since August 2008, the international response has been to send warships to the Gulf of Aden to protect shipping. There are now on average over 20 warships in the region at any time. A series of Security Council Resolutions commencing with Resolution 1816 in June 2008 have encouraged high seas counter-piracy patrols and authorized operations within Somalia's territorial sea and on its soil. In practice, naval forces initially focused on 'deter and disrupt' or 'catch and release' strategies. The former used warships as both a passive deterrent and active disrupter of pirate attacks. 'Catch and release' went further: suspect pirate vessels were boarded, weapons and boarding equipment thrown overboard, biometric data gathered from suspects and the vessels left with enough food and fuel to return to shore. These strategies had sound operational rationales, as taking a pirate into port for prosecution or transfer back to the seizing warship's flag State could involve a lengthy diversion of resources from protecting other vessels. However, two factors influenced a change in this approach. First, 'catch and release' proved politically unpopular, with politicians increasingly calling for an end to pirate 'impunity'. 2 Second, situations emerged that 'catch and release' did not contemplate, such as pirates hijacking artisanal fishing vessels to use as motherships and keeping fishermen prisoner aboard. On 12 November 2008 boarding craft from the HMS Cumberland subdued a suspect pirate vessel and onboard Royal Marines discovered Yemeni fisherman being held by Somali pirates. They could scarcely all be released together, so something had to be done with the pirates. The pirates were soon transferred to Kenya for trial under an ad hoc agreement. This was not unprecedented; the US similarly transferred suspect pirates to Kenya in 2006. 3 The Cumberland and similar incidents revealed the complexities of counterpiracy law-enforcement. Where will pirates be tried? What are the standards for evidence in that forum? As one official remarked, 'before you go looking for pirates, it's a good idea to be clear about who will be assuming jurisdiction'. 4 Few States apparently thought this through in advance; those that did often encountered national 1 'Somali pirates hijack two more ships' Reuters
entity has (arguably) forborne from making a claim to Statehood which is available to it. So, as the Swedish statement says, work needs to be done to establish Kosovo as a State, to constitute a State, perhaps better, to constitute the facts which would make Kosovo a State, in the face of opposition from at least one of its neighbours, Serbia, which has some capacity to make the process difficult. 79 It is certain that the process could not be successful without the participation of what some States have called 'the international community', a shifting concatenation of States and international organizations which has involved itself in Serbia's affairs. 80 Sometimes Russia is included within this 'international community'-as a member of the International Contact Group-but when it disagrees with the policies of the dominant members of this coalition, the international community moves on without it, just as it did when, in the name of the international community, NATO bombed Yugoslavia in 1999. Ultimately, this is why the way in which the situation is dealt with is so important. It would be convenient and very helpful if the international system had a legislative device to deal with anomalous cases, to be able to amend the general rules to accommodate them or to provide an expressly exceptional solution; but it does not, at least not in the absence of a Chapter VII Security Council resolution. All the invocation of the authority of 'the international community' cannot hide what is an attempt by some States, for what they see as very good reasons, to make a world which does justice to the Kosovars (and furthers their own interests in Balkan stability) even if that cannot be done without depriving Serbia of some of its rights. Nonetheless, international lawyers know only too well that the facts can make the law-and the facts in Kosovo will eventually establish whether or not Serbian authority is to continue or a new State has conclusively emerged-but at the moment, we are still waiting on the facts to be established. The law does not seem to have much to do with that.
Does the rule of law matter to maritime security? One way into the question is to examine whether states show a discursive commitment that maritime security practices must comply with international law. International law thus provides tools for argument for or against the validity of certain practices. The proposition is thus not only that international law matters to maritime security, but legal argument does too. In this article, these claims will be explored in relation to the South China Sea dispute. The dispute involves Chinese claims to enjoy special rights within the ‘nine-dash line’ on official maps which appears to lay claim to much of the South China Sea. Within this area sovereignty remains disputed over numerous islands and other maritime features. Many of the claimant states have engaged in island-building activities, although none on the scale of China. Ideas matter in such contests, affecting perceptions of reality and of what is possible. International law provides one such set of ideas. Law may be a useful tool in consolidating gains or defeating a rival's claims. For China, law is a key domain in which it is seeking to consolidate control over the South China Sea. The article places the relevant Chinese legal arguments in the context of China's historic engagement with the law of the sea. It argues that the flaw in China's approach has been to underestimate the extent to which it impinges on other states' national interests in the maritime domain, interests they conceptualize in legal terms.
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