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ARTICLE 110 OF THE LAW OF THE SEA CONVENTION 1982 AND JURISDICTION OVER VESSELS WITHOUT NATIONALITY
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Journal Article
ARTICLE 110 OF THE LAW OF THE SEA CONVENTION 1982 AND JURISDICTION OVER VESSELS WITHOUT NATIONALITY
2019
Overview
On 24 February 2018, a Japan Maritime Self-Defense Force (JMSDF) maritime patrol aircraft (MPA) observed a North Korean flagged vessel conducting a sanctions evading ship-to-ship at sea transfer with a vessel subsequently identified as the Maldivian registered Xin Yuan 18. The Diplomat reported, however, that there was an issue: \"the vessel was never registered by the Maldives.\"\"After cambodian authorities decided to close their registry, which had been used by North Korean-controlled vessels looking to evade U.N. sanctions, some of those vessels continued-in violation of national law-to fly the Cambodian flag.\" Indeed, all existing registrations under the Cambodian ship registry expired at the end of August 2016,4 and the Cambodian government strenuously rejected the use of the Cambodian flag by (in some reported cases) North Korean vessels as late as October 2017.5 Indeed, a North Korean vessel flying the Cambodian flag had been boarded and seized off the coast of Egypt in August 2017, carrying \"more than 30,000 rocket-propelled grenades hidden under iron ore\" in clear breach of the United Nations Security Council (UNSC) sanctions regime.6 In both cases, the vessel was not of the nationality claimed, so the obvious question that arises is: what nationality, if any, are they, and whose jurisdiction might they fall under?Despite a settled understanding that Article 110 of the Law of the Sea Convention 1982 (LOSC or LOSC 1982) permits a right of visit over a vessel suspected of being without nationality when encountered in international waters, there remains some opacity-even confusion-as to the degree and scope of subject matter jurisdiction8 which the boarding State warship (or other authorized vessel) may assert over the boarded vessel. This is counterintuitive for two reasons. First, as Robert Reuland has observed, is the significance of the proposition that \"[u]nless a ship lawfully sails under the flag of a recognized state, the elaborate system of rules established for the maintenance of order upon the high seas is meaningless\" and second, as Martin Fink has noted, is the fact that this authority (in a range of guises) is regularly and routinely employed. In this short Article, I will attempt to describe what I understand to be the current state of the law in relation to the assertion of jurisdiction over vessels without nationality.
