Trading to Yemen

 

Recent news in respect of the commercial maritime picture in and around Yemen culminating in the extraordinary reports of a missile attack on the Turkish flagged Ince Inebolu, has been difficult to unravel. Both sides of the proxy war are making claims and counter-claims to suit their respective narratives. An already complex environment is seemingly fraught with additional risk. The Ince Inebolu was reported to be some 70nm offshore at the time of the explosion and early photographs do suggest an entry hole and characteristic “splash marks” over the deck and evidence of an explosion from within. The Houthis had been reported to have stolen and adapted Russian made air to air missiles to use from the ground[1] but the ship seems to have been out of their range. The most probable cause based on location and distance from shore would be some kind of air attack which puts the Saudi air force firmly in the frame. Was this a vessel that had failed to respond to the more aggressive stance being taken by the coalition forces against vessels due to call in Yemen’s Red Sea ports? A policy which has seen vessels detained in Saudi Arabia for enhanced checks and in one extreme case the confiscation of ship and oil cargo.

This article looks at the legal basis for the detention of vessels and the rights of the owner and asks why the UN has no adequate regime for redress and conflict resolution in these cases.

Stories in April this year of nineteen tankers seized by Houthi rebels always seemed exaggerated[2] and played into a narrative that justified a more aggressive response from the Saudi led coalition navies. But vessels are continually being interdicted often at the time where they have received the necessary Clearance Certificates and are waiting to be called forward to discharge. This leads to many weeks and sometimes months of delay. The legal basis for the Saudi approach is unclear.

Interdiction at sea is either justified under the international law of the sea; under the law of armed conflict or because it is permitted by the UN by way of a specific UN Resolution. The issues arising under the law of armed conflict are beyond this article but the screen in place by the Saudi led naval coalition is not a “blockade” as understood under the laws of naval warfare[3]. Indeed most commentators describe it as unlawful.

UN Resolution 2216

This is the Resolution usually relied on by the Saudi coalition forces (albeit implicitly) to justify interdiction against foreign flagged vessels in international waters. It was adopted in April 2015 and aimed at curbing Houthi activity in order to promote a political solution to the ongoing military and quasi-military activity. It imposed sanctions on key leadership candidates but importantly called on Member States to ensure that military equipment was not imported into the country. The embargo also extends to providing “financial” assistance related to military activities.

The key provisions of the Resolution are set out below for ease of reference:

Arms Embargo

14.  Decides that all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer to, or for the benefit of Ali Abdullah Saleh, Abdullah Yahya al Hakim, Abd al-Khaliq al-Huthi, and the individuals and entities designated…

……., or using their flag vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical assistance, training, financial or other assistance, related to military activities or the provision, maintenance or use of any arms and related materiel, including the provision of armed mercenary personnel whether or not originating in their territories;

“15.  Calls upon Member States, in particular States neighbouring Yemen, to inspect, in accordance with their national authorities and legislation and consistent with international law, in particular the law of the sea and relevant international civil aviation agreements, all cargo to Yemen, in their territory, including seaports and airports, if the State concerned has information that provides reasonable grounds to believe the cargo contains items the supply, sale or transfer of which is prohibited by paragraph 14 of this resolution for the purpose of ensuring strict implementation of those provisions;”

Arguably there are no provisions which justify boarding vessels in international waters (although see below); the escorting of a vessel back to Saudi waters or indeed then taking action against the ship and cargo in the event that something is found that does fall within Section 14 of the Resolution. Indeed any member state that does stop and search a vessel must then make a report to the UN through the UN Panel of Experts on Yemen whose mandate is to monitor Member State compliance with their obligations under Resolution 2216. Needless to say that this obligation has been ignored by Saudi Arabia. Even if evidence is said to have been found it is not being offered to the ship owner making any form of meaningful challenge impossible.

UNVIM

As a result of Resolution 2216 UNOPS (a UN body responsible for implementation of policy) then sought to put in place an inspection services mechanism (UNVIM) and to achieve this they needed a commercial partner to provide maritime and inspection services for shipments destined to Yemen. The aim of this was to help restore the commercial cargo flow into the country. The inspection team is known as UNVC and is based in Aden and Djibouti.

The terms of reference of the inspection team includes the following guidance for the inspection and clearance of vessels and cargoes:

Bulk or break bulk (general) cargo: such cargo is generally shipped directly to Yemen. Member States shall be reminded of their responsibility to undertake an initial screening the cargo, in accordance with national legislation and international law and as per the UNSCR 2216 (2015). A guidance will be issued to the relevant Member States reinforcing this responsibility. Furthermore, in order to comply with the concerns of the Yemeni Government and relevant Security Council resolutions, desk reviews will be undertaken based on which a recommendation will be made as to whether the physical verification and inspection of cargo is needed. If desk reviews determine reasonable grounds that cargo may be prohibited by SCR 2216 (2015), the UNVIM Team (or its contracted maritime experts) and the ship will be notified that a search must be performed. At the same time, UNVIM Team will inform UNVC, and through UNVC the De-confliction Cell and EHOC of the needed search. The ship shall present itself at an identified meeting point outside of Yemen’s territorial waters, to be boarded by the aforementioned UNVC experts for inspection/physical verification. A chartered boat will be provided by the third-party to transport the experts to the meeting point. The experts will be escorted to the meeting point by the relevant Member State. The responsibility for the safety and security of the experts falls onto the relevant Member State. If no illicit or prohibited cargo is discovered during inspection/verification, the ship will be cleared to proceed directly to Yemen. If the experts determine that further inspection and/or disposal is required, they will notify the relevant port to where the ship shall be re-routed (Aden or Djibouti) and will also notify the De-confliction Cell and EHOC. These Member States will be responsible for the seizure and disposal of such items, which will be verified by UNVC experts. UNVC experts will notify the De- confliction Cell and EHOC. The expert will confirm to the Sanction Committee, via the UNVC, that disposal has been undertaken (as described below).

As per UNSCR 2216 (2015), reporting to the Sanctions Committee (established in accordance with UNSCR 2140 (2014)) will be done by the UNVIM Team, through the UNVC, and with copy to RHC, within 24 hours if such inspections are undertaken, including whether cooperation was provided. If prohibited items are found, written report will be provided to the Sanctions Committee within 30 days containing relevant details of the inspection, seizure and disposal of any items and relevant details of their transfer including description of the items, their origin and intended destination.

In all casesafter desk review or physical verification/inspection concludes that shipment can proceed to Yemen, the experts will inform the UNVC which will then inform the Deconfliction Cell and EHOC of the results and the fact that ship has been cleared to proceed and safe passage should be granted.

The EHOC in this context is the Emergency Humanitarian Operations Cell which sits within the Saudi Arabia Ministry of Defence. It still plays an active role in the decisions around the closing of the Red Sea ports (for example Ras Isa) and presumably who can call there. It is the Red Sea ports that are controlled by Houthi forces that Saudi has most concern over, believing they remain an entry point for illegal military material being supplied to the Houthis.

UNVIM was set up to support and facilitate commercial imports and humanitarian assistance to alleviate the plight of the population of Yemen. It was set up to help the Yemeni government but is not part of Yemeni law and yet nor is it meant to infringe upon the authority of the legitimate government of Yemen. The application to UNVIM is done online usually by the charterers and requires information to be uploaded in respect of the vessel and its trading history as well as about the traders and consignees of the cargo. Once UNVIM has carried out its review it issues a Clearance Certificate and the ship is free to call at the discharge port. However, it remains exposed to any action the Saudi coalition forces then see fit to carry out. UNVIM have no mandate to get involved in any dispute resolution or to provide any explanation at all in the event that a vessel is detained. There is no right of recourse where a Member State acts in an arbitrary manner and in particular the owner is powerless when the vessel reaches Saudi Arabia where the vessel is exposed to local laws only because it is now in its territorial waters.

Further, where a vessel is then ordered to a Saudi port for further inspection it may also find that the cargo is discharged on the basis that the tanks will need to be searched. In the case of oil that then raises serious issues as to the admixing of product in shore tanks and the possibility that a different product is reloaded giving rise to questions of frustration and cargo claims at destination which in Yemen are very difficult to resolve without a cash settlement failing which the vessel faces arrest and detention within Yemen. As part of the process ballast tank samples are often taken and tested for explosive trace but again results are withheld from owners who are not given the ability to challenge them.

Restraint of Princes and charterparty issues

Parties trading to Yemen are used to apportioning the commercial risk for delay. Although good practice would dictate ensuring that “Yemen clauses” are fit for purpose and give the protection that the parties require including consideration as to where a notice of readiness can be given. Usually the anchorages for ports like Al Saleeff and Hodeidah are up to 60nm away and closer to Eritrea than Yemen. The vessels are exposed to Coalition navy interdiction within these anchorages.

Hire will usually run unless the Charterers can get within the off hire clause and demurrage provisions may often allow owners to continue to receive demurrage at the full or half rate even where a vessel has been forcibly detained. However, the key question is likely to be whether the seizure by the coalition forces is a “restraint of princes” which may exclude losses on both sides and would certainly give the owners a potential defence to any cargo claim brought.

The classic definition of “restraint of princes” set down in the 1870 case of Finlay v Liverpool and Great Western Steamship Co (1870) 23 LT 251, is: “…forcible interference of a state, or the government of a country taking possession of the goods….”. This goes beyond ordinary legal proceedings in the Courts. However, it does not apply to an apprehension of capture but it does not require physical force. What is key is proving that the ship owner had little option other than to comply. Boarding at gun point and ordering a master to follow a warship to Saudi Arabia gives very little room for discussion.

Perhaps that was the decision being faced by the master of the Ince Inebolu and he refused to comply. Although if that were the case, a decision to fire a rocket at the vessel seems an extraordinary response.  AIS data suggests the vessel is now in Saudi Arabia in any event. If the Saudi Airforce was involved (which at this stage is purely speculative) one wonders at the robustness of the investigation and whether the owners will really get the answers they need.

Trading to Yemen is not for the faint hearted. At the moment the problems are exacerbated by the fact that where UN Res 2216 is being abused and not complied with by Member States, owners of ships and indeed cargo have no mechanism to challenge or seek redress and once in Saudi territorial waters they are then subject to local customs laws and procedures only because they have been ordered to call there.

 

[1] http://www.thedrive.com/the-war-zone/19513/aircraft-attacked-over-yemen-with-r-27-air-to-air-missile-modified-into-a-sam

[2] https://www.alaraby.co.uk/english/news/2018/4/22/yemens-houthis-seized-19-oil-vessels-saudi-arabia-claims

[3] See in particular The Mavi Marmara Incident and Blockade in Armed Conflict – Douglas Guilfoyle 12 May 2011.