Maritime law enforcement

== Definition ==
Maritime law enforcement
States possess the ability to engage in maritime law enforcement operations across various maritime domains. Maritime law enforcement operations refer to the actions a State can take when exercising their enforcement jurisdiction. 
States are accorded rights and duties permitting responses to a range of maritime crimes or other unlawful acts. The extent of these duties is determined by the maritime zone involved.Natalie Klein ‘Maritime Security’ in Donald Rothwell, Alex Oude Elfernik, Karen Scott and Tim Stephens (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 586. Within its internal waters or territorial sea, a State may enforce its national laws, and exercise enforcement jurisdiction over non-sovereign immune vessels which engage in terrorism, transnational crimes, intentional pollution, illegal fishing, and intelligence gathering.Natalie Klein ‘Maritime Security’ in Donald Rothwell, Alex Oude Elfernik, Karen Scott and Tim Stephens (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 586. 
A State’s authority to exercise its enforcement jurisdiction over non-sovereign immune vessels in its contiguous zone is limited to actions necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations.Law of the Sea Convention, Part VII, Article 33. Within its own exclusive economic zone, a State has enforcement jurisdiction only over laws concerning fishing and pollution.Law of the Sea Convention, Part VII, Article 73. 
The jurisdiction to enforce the laws on the high seas is generally vested in the flag State, which possesses the exclusive jurisdiction over that vessel.M/V “Norstar” judgment (Panama v Italy) (2019) 25 ITLOS, para 216 ”…save in exceptional cases, no State may exercise jurisdiction over a foreign ship on the high seas”; Doris König, ‘Flag of Ships’ in Rüdiger Wolfrum (ed) Max Planck Encyclopedia of Public International Law (OUP 2008-, updated April 2009); Douglas Guilfoyle ‘The High Seas’ (2015) in Donald Rothwell, Alex Oude Elfernik, Karen Scott and Tim Stephens The Oxford Handbook of the Law of the Sea (OUP 2015). However, there are exceptions to this rule, which can enable a State to exercise enforcement jurisdiction over a foreign vessel as part of a maritime law enforcement operation on the high seas. These exceptions can be found within the Law of the Sea Convention,Law of the Sea Convention, Part VII, Art 110 – 111. multilateral treaties,See for example the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (entered into force 1 March 1992) 1678 UNTS 221 (SUA Convention). bilateral treaties,See the ship boarding arrangements between the US and other States as part of the Proliferation Security Initiatives, eg Agreement between the Government of the United States of America and the Government of the Republic of Croatia Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, their Delivery Systems, and Related Materials (Signed June 1 2005, entered into force March 5, 2007). and UN Security Council Resolutions.See for example, UNSC Res 665 (14 August 1990) UN Doc S/Res/665.
As part of a maritime law enforcement operation, force may be used against foreign vessels.Patricia Kwast, ‘Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award’ (2008) 13 Journal of Conflict and Security Law; The M/V Saiga Case (No 2) (Saint Vincent and the Grenadines v Guinea) ITLOS (Judgment 1999) (hereinafter referred to as the M/V Saiga Case) para 155; Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine vs the Russian Federation) (Order for Provisional Measures 2019) ITLOS 26. However, forcible measures against foreign vessels at sea can also constitute a use of force under Article 2(4) of the UN Charter,Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16, Art 2(4); Patricia Kwast, ‘Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award’ (2008) 13 Journal of Conflict and Security Law, 58. which is applicable in the maritime domain.Oil Platforms (Islamic Republic of Iran v United States of America) (Judgment) 2003 ICJ Rep 161; Patricia Kwast, ‘Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award’ (2008) 13 Journal of Conflict and Security Law page 59; Law of the Sea Convention, Part VII, Art 301. Therefore, forcible operations at sea must be distinguished as involving either a use of force under Article 2(4) or as being a maritime law enforcement operation. 
Whether an operation is classed as law enforcement or military action engaging Article 2(4) is based “primarily on an objective evaluation” considering the relevant circumstances of each case.Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine vs the Russian Federation) (Order for Provisional Measures 2019) ITLOS 26, para 66. It has also been held that the relevant question is “whether the dispute itself concerns military activities, rather than whether a [State] has employed its military in some manner in relation to the dispute”.South China Sea Arbitration (The Republic of the Philipines and the Peoples Republic of China) (Award of the 12th July 2016) PCA Case No 2013-19 (herein referred to as the South China Sea Arbitration), para 1158. The focus when differentiating between maritime law enforcement activities and uses of force under Article 2(4) is on the objective assessment of the activities involved in any incident.
Whenever force is used in law enforcement operations, certain conditions must be complied with. Any use of force in law enforcement must be used as a last resort and not go beyond what is reasonable and necessary in the circumstances.The M/V Saiga Case, para 155. Prior to using force, any law enforcement operation should have attempted to use a range of actions, including using auditory or visual signals requesting a ship to stop, or firing a shot across the bow.The M/V Saiga Case, para 156. If force is used, “all efforts should be made to ensure that life is not endangered”.The M/V Saiga Case, para 156. 
When the vessel concerned possesses sovereign immunity, it is generally considered that any exercise of enforcement jurisdiction against such a vessel will be considered a use of force under Article 2(4) rather than as a law enforcement operation,Patricia Kwast, ‘Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award’ (2008) 13 Journal of Conflict and Security Law, 85; Natalie Klein, Maritime Security and the Law of the Sea (OUP 2012) 65. as States are prohibited from exercising jurisdiction over sovereign immune vessels.Law of the Sea Convention, Part VII, Art 95-96; Wolff Heintschel von Heinegg, ‘Warships’ (2015) in Rüdiger Wolfrum (ed) Max Planck Encyclopedia of Public International Law (OUP 2008-, updated October 2015). It has been held that when military forces of one State, and military and paramilitary forces of another State are arrayed in opposition to each other, this will be considered as a ‘quintessentially military situation’, and not as involving law enforcement.The South China Sea Arbitration, para 1161. 
Whether cyber means can be used in maritime enforcement operations is a point of discussion. It has been recognised that in light of improving technologies, the rules concerning maritime law enforcement operations may need to be reviewed.Natalie Klein ‘Maritime Security’ (2015) in Donald Rothwell, Alex Oude Elfernik, Karen Scott and Tim Stephens The Oxford Handbook of the Law of the Sea (OUP 2015). For example, it is disputed whether the right of visit could be carried out virtually through cyber means.Tallinn Manual 2.0, commentary to rule 46, para 10.
== Appendixes ==
=== See also ===
* Scenario 16: Cyber attacks against ships on the high seas
=== Notes and references ===
=== Bibliography and further reading ===
Category:Law of the sea
Category:Maritime law enforcement
Category:Legal concepts