Today we present Part II of Prof Raul (Pete) Pedrozo’s expert analysis of the law controlling the seizure of oil tankers and their cargo that you’ve been reading about.  In Part I (found here) he discussed the recent incidents of enforcement measures as well as the law involved in the peacetime environment.

Today Pete addresses enforcement measures in the wartime context. I really don’t know that there is another set of essays that so clearly, concisely, and authoritatively addresses these issues.  Here’s Part II:

Maritime Enforcement Measures Against Sanctioned Tankers and Cargo in Peace and War (Part II)

by Raul (Pete) Pedrozo

III. Wartime Measures

A. Visit and Search

The right of visit and search is used by belligerent warships to determine the true character—enemy or neutral—of merchant ships encountered outside neutral waters during an international armed conflict (Newport Manual, ¶ 9.9; NWP 1-14M, ¶ 7.6).

Visit and search (not to be confused with the peacetime right of approach and visit discussed above) is also used to verify the nature of ship’s cargo (contraband or free goods), the manner of its employment (innocent or hostile), and other facts bearing on its relationship to the armed conflict (Newport Manual, ¶ 9.9; NWP 1-14M, ¶¶ 7.4, 7.6).

Thus, the right of belligerents to visit and search is a time-honored exception to the right of freedom of the seas (particularly exclusive flag State jurisdiction). If a neutral merchant ship resists visit and search, it may render itself a lawful military object and, therefore, a target for attack (Newport Manual, ¶ 9.9).

Enemy merchant vessels are not legally required to comply with orders to stop for visit and search. However, refusal to comply is at their own risk. Neutral merchant vessels, however, are obliged to comply with belligerent orders to stop for visit and search.

If an enemy merchant vessel refuses to comply with an order to stop, or if a neutral merchant vessel actively resists capture (e.g., repelling borders, attempting to ram), it may be warned that it may be considered a lawful target and may be attacked if it persists (Newport Manual, ¶ 9.11; NWP 1-14M, ¶ 7.10). Merchant ships captured as prize must be transferred to a port under the belligerent State’s control for adjudication (Newport Manual, ¶ 9.12).

B. Enemy Character

There are several factors that can be considered to determine whether a merchant ship outside neutral waters has enemy character (Newport Manual, ¶ 3.10.2). For example, a merchant ship flying the enemy’s flag “bears enemy character . . . whatever may be the nationality of her owner—whether a subject of a neutral State, or of either belligerent.” (1909 London Declaration art. 57; Newport Manual, ¶ 3.10.2; NWP 1-14M, ¶ 7.5).

Enemy merchant vessels that commit hostile acts during offensive military operations or that resist visit and search is not a violation of the law of naval warfare, but such acts render the merchant vessel liable to attack (Newport Manual, ¶ 3.10.2).

Merchant ships flying the flag of a neutral State may also bear or acquire enemy character based on their conduct. Neutral merchant ships may acquire the status of either an enemy merchant ship (liable to capture as prize) or an enemy warship (lawful targets) under the following circumstances (Newport Manual, ¶ 3.10.2):

• • • No entitlement under the domestic law of the respective State to fly its flag;
    • Being under the orders or control of an agent placed on board by the enemy government (1909 London Declaration art. 46(2)-(3));
    • Being in the exclusive employment of the enemy government (1909 London Declaration art. 46(3));
    • Operating directly under enemy control, orders, charter, employment, or direction (NWP 1-14M, ¶5.2);
    • Owned by enemy nationals or enemy corporations; or
    • Transfer from an enemy flag to a neutral flag, effected before or after the outbreak of hostilities, and such transfer is made to evade the consequences to which an enemy vessel is exposed (1909 London Declaration arts. 55-56).

C. Blockade

Blockade is a belligerent operation to prevent vessels and/or aircraft of all States, enemy and neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied by, or under the control of an enemy State regardless of their cargo (NWP 1-14M, ¶ 7.7.1). To qualify as a valid blockade, the blockade must conform to the following criteria (NWP 1-14M, ¶ 7.7.2):

• • • The blockade must be established by a belligerent State and accompanied by a declaration that include the date the blockade is to begin, its geographic limits, and the grace period granted neutral vessels and aircraft to leave the area to be blockaded (1909 London Declaration arts. 8-9; Newport Manual, ¶ 7.4.2; NWP 1-14M, ¶7.2.1).
    • The blockading State should notify all affected States of its imposition (e.g. Notice to Airmen, Notice to Mariners, diplomatic notes, etc.) (Newport Manual, ¶4.2; NWP 1-14M, ¶ 7.7.2.2). Knowledge may be presumed once a blockade has been declared and appropriate notification provided to affected governments (NWP 1-14M, ¶ 7.7.4).
    • To be valid, the blockade must be effectively maintained by belligerent forces or other legitimate methods and means of warfare (e.g., naval mines) that is sufficient to render ingress or egress of the blockaded area dangerous (probability of capture). (Paris Declaration of 1856, art. 4; 1909 London Declaration arts. 2-3; Newport Manual, ¶4.3; NWP 1-14M, ¶ 7.7.2.3).
    • The blockade must be applied impartially to the vessels and aircraft of all States. (Newport Manual, ¶4.4; NWP 1-14M, ¶ 7.7.2.4).

A blockade may not be established if it is “solely” intended to starve the civilian population, or “solely” intended to deprive the civilian population of objects essential to its survival (Newport Manual, ¶ 7.4.5; NWP 1-14M, ¶ 7.7.2.5). Nonetheless, the fact that a blockade affects the civilian population in a way that is disproportionate to the military advantage gained from the blockade does not render the blockade invalid (Newport Manual, ¶ 7.4.5).

Vessels carrying humanitarian materials intended for the civilian population of a blockaded area are not exempt from blockade enforcement. Nevertheless, the blockading State may arrange for the provision of humanitarian support to a blockaded area (Newport Manual, ¶ 7.4.5; NWP 1-14M, ¶ 7.7.3).

Neutral States have a right to engage in neutral commerce that does not involve trade or communications originating in or destined for the blockaded area. Thus, a blockade must not deny access to or departure from neutral ports or coasts, nor to straits used for international navigation or archipelagic sea lanes, in neutral waters (1909 London Declaration art. 18; Newport Manual, ¶ 7.4.6; NWP 1-14M, ¶ 7.7.2.5).

IV. Conclusion

Several governments in the region, including Argentina, Panama and Chile, have publicly supported U.S. actions against the illegitimate Maduro regime. Caribbean States, like Trinidad and Tobago and the Dominican Republic have likewise publicly supported U.S. actions.

Trinidad and Tobago’s Prime Minister Kamla Persan-Bissessar is hosting U.S. Marines and has participated in joint military exercises with the United States, as well as allowed the United States to install a radar system at one of its airports. The Prime Minister has also made it very clear that she has “no sympathy for traffickers” and that the United States should kill all narco-traffickers “violently.”

Similarly, Dominican President Luis Abinader has authorized the U.S. military to operate within restricted areas at San Isidro Air Base and Las Américas International Airport in its fight against Venezuelan drug traffickers. The Dominican President has allowed U.S. military aircraft to refuel and transport equipment and technical personnel.

Various lawful enforcement measures may be applied by the United State, in both peacetime and wartime, to stem the flow of sanctioned Venezuelan shadow tankers and over non-sanctioned vessels transporting sanctioned PDVSA oil. In peacetime, these measures include boarding of stateless vessels, boarding with flag State or master consent, and the imposition of a maritime quarantine.

In wartime, the United States, as a belligerent, would have the right of visit and search of all merchant shipping beyond neutral waters to determine the true character of the vessel and its cargo. Merchant vessels that acquire enemy character may be targeted under appropriate circumstances.

Finally, in wartime, the United States could establish a blockade that would prevent the entry and exit of all shipping from Venezuelan ports.

Remember Part I is found here

About the author:

Captain Raul (Pete) Pedrozo, U.S. Navy (Retired), is the Howard S. Levie Chair on the Law of Armed Conflict and professor of international law at the Stockton Center for International Law, U.S. Naval War College. Prof. Pedrozo was the former senior legal adviser at U.S. Pacific Command and served as special assistant to the Under Secretary of Defense for Policy.

Disclaimers:

The views and opinions expressed in this article are those of the author and do not necessarily reflect those of the U.S. Naval War College, the U.S. Department of Defense, or the U.S. Government.

The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University. (See also here).

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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