E

LEGAL COMMITTEE LEG 108/5/3

108th session 21 May 2021
Agenda item 5 Original: ENGLISH
Pre-session public release: ☐

ADVICE AND GUIDANCE IN CONNECTION WITH THE IMPLEMENTATION

OF IMO INSTRUMENTS

Implementation of the Convention for the Suppression of Unlawful Acts against the
Safety of Maritime Navigation of 1988, as amended by the Protocol of 2005

Submitted by Turkey

SUMMARY

Executive summary: This document provides information regarding the unauthorized

boarding of a warship to a Turkish-flagged merchant vessel on the
grounds other than those allowed by international law

Strategic direction, if 1, 5
applicable:

Output: OW 18, OW 20

Action to be taken: Paragraph 21

Related documents: LEG 107/18/2; resolution A.584(14) and UN Security Council

resolution 2292 (2016)

Introduction

1 The core mission of IMO is to ensure safe, secure, sustainable shipping, the
implementation of numerous convention-based rules and standards for the safety and security
of shipping and the prevention of pollution by ships. It is very well known that IMO attaches the
highest priority to the need of ensuring that its various rules and standards contained in the
conventions are properly implemented.

2 Such convention-based rules need to be correctly interpreted in light of a recent visit

to a Turkish-flagged merchant vessel by a warship under the command of Operation Irini of
the European Union, without the consent of Turkey, on 22 November 2020. Moreover, Turkey
had made no declaration regarding the adoption of tacit consent procedure at the time of
ratification of the Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation of 1988, as amended by the Protocol of 2005 (SUA Convention).
This incident was also brought to the attention of LEG 107 by the Turkish delegation.

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3 Prevention of incidents of piracy, armed robbery and other unlawful acts against or
on board ships have been on the agenda of IMO for a long time. Assembly resolution A.584(14)
on Measures to prevent unlawful acts which threaten the safety of ships and the security of
their passengers and crews could be a good example of IMO's work on this issue. Therefore,
Turkey is of the view that IMO should remain as the appropriate body for defining measures
on this subject.

4 This document aims to highlight the above-mentioned unauthorized boarding and to

discuss concerns towards visits to foreign ships on the high seas without the flag State's
consent in international law.

Background

5 During the morning of 22 November of 2020, a warship under the command of

"Operation Irini" of the European Union, hailed and interrogated in detail the Turkish-flagged
merchant vessel M/V Roseline A, which was sailing on the high seas and carrying
merchandise from Turkey to the Libyan port of Misrata.

6 Even though the master of the merchant vessel acted cooperatively and shared
detailed information on her cargo and route, armed elements of "Operation Irini" boarded the
vessel and conducted a lengthy "inspection". All crew members, including the shipmaster,
were forcibly searched, gathered and confined in a single location for almost a day, while the
shipmaster was placed under the custody of an armed serviceman.

7 The consent of Turkey, as the flag State, was not obtained before the intervention
was conducted. In addition to that, the master of the vessel rejected such request of boarding
with a clear statement. In spite of the declaration of the shipmaster regarding the nature of the
cargo, the intervention was launched upon a vague suspicion and lasted until after midnight
and was only terminated upon persistent objections of Turkey. At the end of the search, it
became also apparent that the ship had not violated any rules.

Discussions

8 According to articles 110 and 111 of the United Nations Convention on the Law of the
Sea (UNCLOS)* and article 8bis of the SUA Convention, it is unquestionably clear that
obtaining flag State's consent before interfering with merchant ships on the high seas is
essential. Article 8bis of the SUA Convention also addresses the responsibilities and roles of
the master of the ship, flag State and receiving State in delivering to the authorities of any
State Party any person believed to have committed an offence under the Convention.

9 Moreover, article 8bis of the SUA Convention and paragraphs 3, 4 and 8 of the United
Nations Security Council resolution 2292 (2016) (the resolution) state that all persons on board
should be treated in a manner which preserves their basic human dignity. The same rules also
indicate that reasonable efforts had to be taken to avoid the ship being unduly detained or
delayed.

10 However, the above-mentioned rules were violated in this occurrence. The ship was
boarded without the flag State's consent, armed inspection team ill-treated the seafarers, and
the ship was withheld from her route for hours.

*
Reference made to UNCLOS cannot be interpreted in any way as a change in policy or of the legal position
of Turkey vis-a-vis this Convention.

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11 On the other hand, the navigation pattern of a vessel cannot be solely considered as
a reasonable ground for suspicion. Otherwise, most of the ships in the world could be interfered
with arbitrarily based on their routes, which is totally unacceptable.

12 Such subjective interpretations undoubtedly pose an imminent danger to international

law and freedom of navigation.

13 The European Union seems to base the unauthorized boarding on the resolution
authorizing inspections on the high seas off the coast of Libya of vessels that are believed to
be carrying arms or related material to or from Libya, in violation of the United Nations arms
embargo.

14 Paragraph (9) of the resolution recognizes the exclusive jurisdiction of flag States over
their vessels on the high seas under international law including UNCLOS. On the other hand,
paragraph (3) of the resolution allows the foreign flagged vessels to be visited if there could be
reasonable grounds to believe that they are carrying arms or related material to or from Libya
directly or indirectly in violation of the United Nations arms embargo. According to the
resolution, those boarding States should also make good-faith efforts to first obtain the consent
of the vessel's flag State prior to any inspections.

15 One of the questions to be addressed by the Legal Committee is whether the silence
or lack of explicit rejection of any flag State on the request of boarding under the resolution or
any other resolutions, including a similar provision as in paragraph (3) of the resolution, could
be treated as the "consent of the flag State". This is considering the fact that almost all
Contracting States to the SUA Convention disagreed with the tacit consent procedure unless
adopted by clear declaration at the time of ratification which was already discussed during the
preparation of the SUA Protocol.

16 The second question to be addressed is whether the United Nations Security Council
has the mandate to lay down a rule which is in clear contradiction to the law of the sea,
including the SUA Convention and UNCLOS, such as those requiring clear consent of the flag
State for the boarding of its vessel by foreign war ships. Furthermore, it should be taken into
consideration that the resolution itself makes it clear that the general principle of the exclusive
jurisdiction of the flag State on the high seas will not thus be affected.

17 The final question to be addressed is whether a request for consent to board sent by
e-mail to randomly and unilaterally selected government officials out of working hours is
sufficient as a good-faith effort to obtain the consent of the flag State.

18 Taking into consideration the above-mentioned incident, any flag State represented
at IMO could be subjected to such intervention even though its clear consent for boarding has
not been obtained duly and timely, on the basis of random interpretation of existing rules.
Therefore, these issues concern all the countries in ensuring freedom of navigation and
preventing unnecessary and/or disproportionate interventions thereon.

Conclusion

19 It should be noted that Turkey, as a flag State, does not allow other foreign States to
visit Turkish flagged vessels on the high seas without its consent. If clear consent is duly
received from Turkey, the boarding State shall compensate any damage sustained due to a
wrong assessment of the reasonability of the ground for boarding.

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20 Articles 110 and 111 of UNCLOS grant the right of visit to foreign merchant vessels
on the high seas under certain circumstances. Article 8bis of the SUA Convention requires
consent of the flag State for the visit to their own flagged vessels by foreign war ships even in
the case of reasonable grounds for suspecting that the ship is engaged in unlawful acts, unless
a declaration on the tacit consent procedure was made at the time of ratification of the
Convention.

Action requested of the Committee

21 The Legal Committee is invited to note the information provided, discuss questions
stated in paragraphs 15 to 17 and take action, as it may deem appropriate.

___________

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