Maritime law enforcement

Definition
 {| class="wikitable mw-collapsible" style="background-color:#ffffcc;" ! scope="col" style="background-color:#ffffaa;"| 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. 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.

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. Within its own exclusive economic zone, a State has enforcement jurisdiction only over laws concerning fishing and pollution.

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. 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, multilateral treaties, bilateral treaties, and UN Security Council Resolutions.

As part of a maritime law enforcement operation, force may be used against foreign vessels. However, forcible measures against foreign vessels at sea can also constitute a use of force under Article 2(4) of the UN Charter, which is applicable in the maritime domain. 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. 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”. 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. 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. If force is used, “all efforts should be made to ensure that life is not endangered”.

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, as States are prohibited from exercising jurisdiction over sovereign immune vessels. 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.

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. For example, it is disputed whether the right of visit could be carried out virtually through cyber means.