Напади на морські судна, їхнє затримання та конфіскація в умовах збройного конфлікту та поза ним: єдиний стандарт кваліфікації застосування сили щодо суден у міжнародному праві

The article solves the scholarly task of constructing a single standard for the legal qualification of any use of force against a maritime vessel, in particular attack, detention, arrest, confiscation and transfer of the vessel to another owner, irrespective of which State or non-State actor acts and in which maritime space. The study continues the author's work on an attack on a merchant vessel as a war crime and an act of aggression and extends the test formulated therein to the events of 2014-2026 in the Black, Azov, Baltic, Red and Mediterranean Seas, the Persian Gulf and the Gulf of Oman, the Strait of Hormuz, the Caribbean, and the Atlantic, Indian and Pacific Oceans. A triage of three mutually exclusive legal regimes is proposed: the conduct of hostilities, law enforcement under the law of the sea, and the extraterritorial use of lethal force outside armed conflict. The choice of regime is determined by the threshold of armed conflict under the Tadić test, the objective status of the vessel at the moment force is used, and the nature of the act. On the basis of more than one hundred individually identified vessels, it is shown that, as of October 2026, none of the detentions of vessels of the so-called shadow fleet in Europe has ended in final confiscation: vessels were released, including after payment of a fine, or remain under arrest, and only in isolated cases was there a transfer of the vessel to another State or a removal of cargo. It is established that the seizures of tankers off Venezuela by the United States were accompanied by the sale of oil through private traders and by the holding of the proceeds in an account in a third State, which raises well-founded questions of transparency, although no private interest has been established by a court. The judicial fate of the tankers Tifani (IMO 9273337) and Majestic X, also known as Phonix (IMO 9198317), seized by the United States in the Indian Ocean in April 2026, is traced: a federal court refused the Government a secret sale of the seized property, and more than six hundred victims of terrorism holding court judgments against Iran for almost four billion dollars have claimed rights to the cargo of Iranian oil valued at 130–140 million dollars, which exposes the competition between prize law, confiscation under terrorism legislation and the enforcement of court judgments against the property of a State. The application to the detention of crews of the standard set by the judgment of the Grand Chamber of the European Court of Human Rights in Medvedyev and Others v. France of 29 March 2010 is substantiated. Ukrainian practice of arrest, confiscation and nationalisation of vessels since 2018 and its relationship with Article 2 of Hague Convention VI of 1907 are examined. The widespread belief that the IMO number changes when a vessel is converted into a warship is refuted: the number is permanent throughout the entire service life of the vessel, while conversion removes the vessel from the scope of the SOLAS Convention and subjects it to Articles 1–6 of Hague Convention VII of 1907. Intelligence-gathering vessels and the legal consequences of their detention are analysed, in particular the judgment of the Helsinki Court of Appeal of 27 August 2026 in the Eagle S case. Strikes on merchant vessels in the exclusive economic zones of Romania, Bulgaria and Türkiye and in ports of the Russian Federation are examined in the light of Articles 1 and 2 of Hague Convention XIII of 1907, and it is shown that the rise of war-risk insurance premiums in the Black Sea to two per cent of the vessel’s value and the extension of the listed area to the entire Black Sea in September 2026 reversed the downward trend in freight rates observed in 2024–2025. The scholarly novelty lies in combining the three regimes in a single operational algorithm and in testing it against the full body of events, with the refinement of factual data of earlier publications, as well as in identifying a gap in the national mechanism for compensating damage caused to vessels and seafarers.

Citation: Keshkentii, Denys. Attacks on Maritime Vessels, Their Detention and Confiscation Within and Outside Armed Conflict: A Single Standard for Qualifying the Use of Force Against Vessels Under International Law SSRN, DOI 10.2139/ssrn.7611363. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7611363