Liability: applicable standards and diplomatic protection

Under general international law an interdicting state is obliged to compensate a boarded vessel for any loss, damage, injury or delay arising from wrongful boarding and inspection. This is a separate obligation from any responsibility to the flag state for unjustified interference with a vessel bearing its nationality. The procedure to be followed and the standard of assessment and quantification of loss to be applied might be thought to be more controversial. SOFAs usually embody a claims procedure under which the receiving state will process claims for compensation arising out of acts committed by visiting forces and will then receive a partial indemnity from the sending state under a cost-sharing formula. A similar approach is taken under European treaties dealing with cross-border police activities. It would be hard to say, however, that any such pre-agreed formula evidenced a general rule that responsibility lies with the receiving (or flag) state to settle claims arising from consensual interdictions. Such rules are better considered a lex specialis displacing the ordinary rules of diplomatic protection or state immunity which might apply in such cases. In any event, there is no need to turn to analogies regarding visiting forces or cross-border policing when there are applicable rules of the law of the sea dealing with losses incurred during an interdiction.

Where an interdiction has been conducted upon the suspicion that one of the legal grounds under UNCLOS Article 110(1) exists, Article 110(3) further provides: