The Right to Visit of a foreign-flagged vessel in law of the sea and customary international law

The visit of a foreign-flagged vessel is the core activity of maritime
interception operations. The right of visit of foreign-flagged vessels comes in different
manifestations, depending on the legal basis. This chapter analyses these
different manifestations of the right of visit. One challenge is that today’s conflicts
are often characterized as non-international in nature. As the law of naval warfare
does not apply to non-international armed conflicts, the question remains whether a
non-international armed conflict right of visit should exist and under what legal

The right of visit is of key importance to maritime interception operations. It is at the
very heart of maritime interception. Traditionally, the right of visit is generally
separated into peacetime rights of visit and the right of visit during international armed
conflict. The first are codified in Articles 110 and 111 UNCLOS. The second refers to
the belligerent right of visit and search, which is part of the law of naval warfare.
Generally, the peacetime rights of visit are called ‘the right of visit’. The right of visit
during international armed conflict appears usually under the term ‘the right of visit
and search’, ‘the belligerent right of visit and search’, or even more extensively under
the term ‘the belligerent right of visit, search and capture’. In line with the view that
there are several legal bases for MIO, it is argued here that the right of visit has more
manifestations than the traditional separation into peacetime and wartime rights and
may include manifestations arising from different legal bases. For example, a right of
visit is now also accepted to exist on the basis of an authorization by the UNSC,
derived from ad hoc consent or based on international agreements.
The right of visit in this chapter is defined as the rules that regulate the authority
during a visit of a foreign-flagged vessel by a warship. In principle, a visit contains
three aspects that relate to both the legal basis and legal regime: the legal basis to
board, the authority for boarding crew during the visit and the legal regimes that
apply during the conduct of the visit. To illustrate, if a boarding is based on an
international agreement, the agreement itself is the legal basis that will also detail
the scope of authorities during the boarding. Added to this is the manner in which
way force may be used or persons are detained, which is based on the applicable
legal regime. These three aspects together make up the complete scope of rules that
a boarding-team must consider during the boarding of a vessel (see Fig. 9.1).
Separating these three legal aspects of a visit is relatively easy done for existing
manifestations of the right of visit or for visits derived from an international
agreement. For visits that do not have a pre-existing legal framework addressing the
scope of authority, this is less clear. For example, when an ad hoc consent is the
legal basis for the boarding, the scope of consent given should also detail the scope
of authority for the boarding. The legal regimes that apply depend on the factual
situation, which can be either IRHL or LOAC. Similarly, a UN resolution can be
the legal basis for the boarding, which may detail some of the scope of authority for
the boarding itself. The manner in which way the authority is enforced depends on
the applicable legal regime. This chapter focuses on the rights during the visit. The first aspect (legal basis) has already been discussed in Part II. The third aspect will be discussed in Chaps. 10 and 11. This chapter will first start with three general remarks concerning the right of visit during maritime interception operations and
then proceed to analyse the different manifestations of the right of visit.

General Remarks on the Right of Visit
As will be outlined in this chapter, there are different manifestations of the right of
visit. A first general remark is on conjuncture of these rights. Different manifestations
can be used simultaneously in one military campaign. during one military operation warship commanders can be authorized to act based on different types of right of visit. For example, a warship that takes part
in an international armed conflict could exercise the belligerent right of visit and
search and at the same time be authorized to act against piracy2 or against a SUA
offence. This was for example the case during the Dutch contribution to Taskforce
150 in the Arabian Sea. The maritime operating area of Taskforce 150 was both an
area of interest with regard to terrorists and Somali pirates. Netherlands warships
assigned to the operation had both the authority to use the belligerent right of visit
and search to search for possible terrorists at sea and the authority to act against
piracy off the coast of Somalia. As an another example, it can be mentioned that the
fact that a warship is, for instance, assigned to a multinational UN-mandated
maritime embargo operation does not preclude that the ship may also be authorized
to board vessels that are stateless or suspected of piracy. It may, however, have an
impact on the command and control of the contributing warships. Where an
international commander can order a visit in line with the mandate, other types of
authority stay, in principle, with the State of the contributing State unless it has
delegated its authority to an international commander.

Second, as a consequence from the above, different manifestations of the right of
visit can exist simultaneously within one area of operations. During the US/UK
naval operations in the Persian Gulf in March 2003 against Iraq (OIF), in which the
belligerent right of visit and search applied, the right of visit derived from a UNSC
resolution to enforce the maritime embargo against Iraq still existed in the area of
the Persian Gulf. Moreover, if the State has assigned ships to both operations, the
rights can be applied in the same area and conducted by warships of the same
State. As this chapter will show, there are significant differences between these
different manifestations of the right of visit. It is, therefore, important to know
which right of visit applies to a particular situation, even though the execution of
the right from an operational perspective may be quite similar. For a warship
commander, the rules of engagement designed for a particular operation often
provide some assistance in this regard.
Third, it must also be underlined that the quote by A. P. Higgins in the heading of
this chapter signals an important point with regard to the nature of the right of visit.
The activity of visiting a foreign-flagged vessel by a warship is not an end to itself,
but a means that serves another, and specific, purpose. The right exists to enable
States by means of a visit of another vessel to verify and, if needed, subsequently
stop an illicit activity, a breach of a UN resolution, or exercise an authority under the
law of naval warfare. It is not a right that is meant for the sole purpose to gain access
to a foreign-flagged vessel, and after which a range of new opportunities may arise
from the fact that a State is physically on board the vessel. The right of visit is a
means to support something else, which must be sufficiently concrete so that lawful
access to a vessel cannot be used for other purposes. As such it cannot be separated
from the reason why a visit is undertaken. The lawfulness of the visit will also
depend on this connected reason. To illustrate the operational challenge this comment
raises, I will sketch the following dilemma:
During an international armed conflict a neutral vessel suspected of carrying contraband to
the enemy is sailing from (not to) enemy territory to a neutral destination. The latter
information bars a commander from using the right of visit based on the law of naval
warfare, as this authority is limited by a suspicion of carrying contraband and (ultimate)
enemy destination of the vessel. The commander has, however, noticed that the vessel does
not fly a flag and therefore views the vessel to be stateless. This allows him, based on a
peacetime right of visit, to board the vessel. While checking for nationality on board the
vessel, his suspicion that the vessel is carrying contraband appears to be correct. Because
lawful capture of contraband still depends on the condition of destination, it means that in
this case, although access to the vessel was gained lawfully, it is still not lawful to seize the
goods that are deemed contraband.

The above dilemma shows how complex the interaction between the different
manifestations of the right of visit can be. It also, perhaps, shows how quickly
mistakes or misuse of the right can be made when no attention is paid to the fact
that the right of visit is a means rather than an end.

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