Flag Verification on the High Seas: Understanding Requirements for Masters and Commanders

Abstract

Operational reporting from the Middle East indicates that the exercise by warships of a right of visit on the high seas, in order to verify the flag of the boarded vessel, is an important part of contemporary maritime enforcement operations. However, this reliance on ‘flag verification boardings,’ pursuant to Article 110 of the United Nations Convention on the Law of the Sea 1982, challenges the proper balance of law enforcement authority against the traditional freedom of navigation. It is therefore necessary to establish clearly for both civilian masters and warship commanders where the evidentiary threshold for reasonable doubt as to the nationality of vessels lies, so as to justify non-consensual visit and search by a foreign warship. This article makes an objective, evidence-based assessment of the threshold, concluding with a caution against over-stretching the right of visit to accommodate law enforcement purposes not envisaged in the drafting of Article 110.

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