- Territorial sea — Ports — Terrorism
While terrorism and weapons of mass destruction are not new maritime security threats, greater focus has been accorded to these concerns in the last decade. The terrorist attacks on the United States on September 11, 2001 highlighted the potential for terrorists to use other means of transport to wreak death, destruction, and economic havoc. Little imagination was needed to consider the impact of a small boat packed with explosives ramming into a vessel carrying oil or gas as it visits a mega-port or transits one of the waterways considered vital for international shipping. Vessels carrying gas or oil or other potentially hazardous material could be hijacked and crashed for similar effect. Less dramatically, terrorists use international shipping for personal transport, as well as shipping their supplies and as a means to finance their activities.
The concept of maritime terrorism was initially understood within the context of piracy whereby any unauthorized act of violence on the high seas would be characterized as piracy.1 However, as the formal definition of piracy under international law came to be understood as limited to acts of violence perpetrated for financial purposes,2 there were still acts of violence at sea undertaken for political or other ‘public’ reasons. These violent acts, if performed outside the territorial sea, were not recognized as crimes over which all states could exercise jurisdiction, as is the case with piracy.3 Instead, these acts came to be branded as (p. 148) maritime terrorism.4 Joyner describes maritime terrorism as ‘the systematic use or threat to use acts of violence against international shipping and maritime services by an individual or group to induce fear and intimidation in a civilian population in order to achieve political ambitions or objectives’.5 The issues surrounding maritime terrorism and the rights of states to prescribe and enforce jurisdiction over these acts of violence outside the territorial sea came most strongly to the fore in contemporary international law with the hijacking of an Italian vessel, the Achille Lauro, and murder of a US national on board by Palestinian Liberation Forces in 1985.
Terrorist acts against vessels have become more common since the Achille Lauro incident. The Tamil Tigers (Liberation Tigers of Tamil Eelam—LTTE) particularly utilized terrorist attacks against shipping as part of their liberation struggle; inter-island ferries in the Philippines have been targeted by terrorists; and, guerrillas alleged to be affiliated with Al Qaeda launched a suicide attack in 2000 against the US Navy destroyer Cole in Yemen,6 and an attempted attack against the USS Sullivans in 1999.7
Subsequent to September 11, a terrorist attack was perpetrated against the French supertanker Limburg as it neared a Yemeni port as well as on approach to the Iraqi oil loading terminal of Khawr al Amaya through the use of small vessels packed with explosives. Attacks have also been perpetrated at various ports through car bombs, parcel bombs, and suicide bombers.8 Al Qaeda reportedly owns or controls ‘about 15 cargo ships that could be used as floating bombs against cruise ships and other high interest vessels, or to smuggle explosives, chemical or biological weapons, such as a radioactive dirty bomb into a US port, or to transport al Qaeda members into a third country.’9 In addition, there have been concerns expressed about shipping being used to finance terrorist activities, both through illegal fund-raising means (such as drug trafficking or smuggling diamonds) as well as legitimate businesses.10 Following September 11, there was (p. 149) cognizance of the range of terrorist acts that could be perpetrated,11 and that the existing legal regimes were inadequate to meet these threats.
Heightening concerns about maritime terrorism has been recognition that terrorists may seek to acquire weapons of mass destruction (WMD). The discovery of a clandestine nuclear smuggling ring headed by the Pakistani scientist Abdul Qadeer escalated concerns of terrorists acquiring WMD for use in attacks; these supplies most likely being shipped between the interested parties. ‘Experts predict a 70% chance of an attack with [WMD] somewhere in the world in the next decade.’12 In the post-Cold War era, the spectre of smaller states and non-state actors obtaining WMD has changed the security dynamic and means that international actors are acquiring considerable leveraging and deterrent capabilities, disproportionate to their small resource bases and conventional military arsenals, when compared to a larger state or group of states.13 The possible shipment of WMD, their delivery systems, component parts and technologies, and related material14 to non-state actors (predominantly terrorist groups, or those trading with terrorist groups) or to states that are believed to facilitate sale or supply to terrorists has been the focus of legal, political, and operational developments.
Within this dynamic, states have become concerned not only with non-proliferation, which is intended to slow and ideally reverse proliferation trends,15 but also with counter-proliferation, which involves preventing specific actors from obtaining WMD-related materials and technologies, or reducing if not eliminating an actor’s existing WMD capability.16 Non-proliferation activities include the conclusion of possession and proliferation treaties, establishing safeguards and inspection regimes, export control regimes, export control assistance measures, and economic sanctions.17 Counter-proliferation has then entailed ‘traditional efforts of deterrence and containment, efforts of defense and mitigation of attack, use of early detection technologies, interdiction of suspected transfers of sensitive items, and preemptive and preventive acts of force against either actual or potential (p. 150) possessors of WMD.’18 It is some of these latter activities that have proven controversial in the maritime context.
The protection of international shipping from terrorist attack is acute given it is commonly estimated that over 90 per cent of the world’s goods are transported by sea. An attack that successfully closed a mega-port or vital waterway would likely cause major economic disruption around the world. As a result, states have generally recognized that there is a shared interest in addressing the terrorist threat posed to maritime security. Equally, the proliferation of WMD and related material constitutes a broad concern for states given the very nature of these weapons and their effects if used. The inclusive interest in maritime security when addressing terrorism and WMD and related material is apparent. Responding to this maritime security threat has been polemic because of, once again, the strong interest in the freedom of navigation. The reconciliation of shared interests in navigation and protection from terrorism and the proliferation of WMD is examined in this chapter.
This chapter examines the legal responses to threats to maritime security posed by terrorism and WMD. By way of background, it first explores the adoption of the 1988 SUA Convention as the reaction to the Achille Lauro incident and also looks to the existing WMD legal regimes that have bearing on proliferation of WMD at sea. The second section considers two key steps that have been taken to better protect ports from terrorist acts, including the use of a WMD at port and the shipment of WMD and related materials. These are the ISPS Code,19 and the US-led Container Security Initiative. The third section explores the new legal instruments devised by states to permit interdictions on the high seas, namely a series of bilateral treaties instigated by the United States and revisions to the 1988 SUA Convention, adopted as the 2005 SUA Protocol. Finally, the chapter analyses the Proliferation Security Initiative, a political arrangement that addresses the WMD threat at port, in territorial seas, and on the high seas. The PSI may be seen as an overlay to the other recent initiatives addressing terrorism and WMD and a critical question here is the extent that the PSI may be re-shaping international law.
These efforts clearly reflect the shared recognition that states will all benefit from a cooperative and collaborative approach to addressing terrorism and the proliferation of WMD as maritime security threats. The inclusive interest in maritime security has enabled the establishment of greater international control over security processes at port and aboard ships through the creation and adoption of universal References(p. 151) bstandards and procedures. Greater claims to rely on the right of visit for the purposes of detecting terrorist and WMD offences also reflect the shared interest in responding to these maritime security threats. However, inclusive claims in maritime security have been diminished by inclusive claims to uphold the freedom of navigation and the concomitant exclusive right of a state to exercise jurisdiction over vessels flying its flag. Exclusive interests in determining the most efficient and profitable ways to run ports have also influenced efforts to enhance maritime security. As will be discussed, the legal regimes created to respond to these threats could have been improved if greater emphasis had been accorded to shared interests in maritime security. Such an improvement was warranted and would not have overly forsaken interests in the freedom of navigation.
One of the most dramatic acts of maritime terrorism to instigate an international legal response was the 1985 hijacking of the Achille Lauro. The Achille Lauro, an Italian vessel, was hijacked by four members of the Palestinian Liberation Front in October 1985, approximately 30 miles off the coast of Egypt.20 The hijackers had posed as passengers on the vessel prior to taking control. The hijackers demanded the release of 50 Palestinians imprisoned in Israel in return for the safe release of the 400 passengers on board. A national of the United States was murdered by the hijackers before they surrendered to Egyptian authorities in return for passage on board an Egyptian plane to Tunis. En route, the United States authorized its aircraft to intercept and force the Egyptian plane to land in Italy, at which point the hijackers were taken into Italian custody and prosecuted. The factual circumstances of the incident prevented the hijackers from being labelled as pirates under international law,21 and provided for the possibility of a variety of states being entitled to exercise jurisdiction over the offenders as a matter of international law, subject to the criminal offences existing within the domestic laws of each of the concerned states.
Given the legal conundra caused by the Achille Lauro hijacking, Austria, Egypt, and Italy proposed the adoption of a treaty under the auspices of the IMO to set forth ‘comprehensive requirements for the suppression of unlawful acts committed against the safety of maritime navigation which endanger innocent human lives; (p. 152) jeopardise the safety of persons and property; seriously affect the operation of maritime services and, thus, are of grave concern to the international community as a whole.’22 These efforts led to the adoption of the 1988 SUA Convention. The importance of this treaty at the time of its adoption was that it identified certain unlawful acts against ships and provided bases by which states could establish jurisdiction over the perpetrators of those unlawful acts.23 A Protocol negotiated and adopted at the same time addressing terrorist acts against fixed platforms on the continental shelf similarly identified offences and established jurisdiction over them.24
Although the 1988 SUA Convention filled lacunae identified in response to the Achille Lauro incident, there were still a number of limitations and weaknesses in the treaty. It followed the approach of other so-called sectoral terrorism treaties, in that it dealt with one particular type of terrorist activity and was focused on the establishment of those activities as crimes over which states with pertinent connections to the offences could exercise jurisdiction.25 Further, the 1988 SUA Convention adopted the principle of aut dedere aut judicare consistent with the earlier terrorism treaties.26 This approach was preferred as a more moderate one rather than expanding the definition of piracy, as states did not wish tomake these terrorist offences ones over which all states could exercise jurisdiction.27
References(p. 153) (a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or
(b) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or
(c) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or
(d) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or
(e) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger the safe navigation of a ship; or
(f) communicates information which he knows to be false, thereby endangering the safe navigation of a ship;28 or
(g) injures or kills any person, in connection with the commission or the attempted commission of any of the [above offences].
Attempts or complicity in these offences were also identified as offences within the 1988 SUA Convention.29 The inclusion of a principal offence of injuring or killing a person in connection with the commission or attempted commission of any of the other principal offences was a new addition in the 1988 SUA Convention. States parties to the 1988 SUA Convention were required take the necessary measures to be able to exercise jurisdiction over these offences.30 The gaps created by the 1988 SUA Convention in terms of addressing a situation when a foreign vessel is in the hands of terrorists were noted at the time, but was a scenario left to be addressed under the existing, albeit unsatisfactory, rules.31
One of the primary limitations of the 1988 SUA Convention was that it failed to grant states any right to exercise enforcement jurisdiction (particularly the right of visit) in the prevention and suppression of the offences set forth in the treaty. Article 9 expressly states to this end: ‘Nothing in this Convention shall affect in any way the rules of international law pertaining to the competence of States to exercise investigative or enforcement jurisdiction on board ships not flying their flag’. Joyner interprets this provision as ‘explicitly mandat[ing] that there is no right of visit and search of vessels exercising free passage on the high seas in a situation of nonbelligerency’.32
References(p. 154) The provisions related to the prevention and suppression of the prescribed offences are limited to requirements to cooperate in prevention of potential offences and the exchange of information.33 Even the provision requiring cooperation for the prevention of the offences was shortened in the 1988 SUA Convention, compared to the models in the earlier Hostages Convention,34 although this drafting change was not intended to be a departure from the expectations enshrined in the Hostages Convention.35 Article 14 of the 1988 SUA Convention simply calls on states to use ‘all practicable measures’ to prevent preparations for, or commission of, the specified offences, without providing any clarity (beyond exchanging information) as to what these measures should or could entail.36 Gaja has suggested that the requirements to take preventive measures and to prosecute or extradite offenders imply an obligation to respond to terrorist acts as they take place.37 Mellor goes even further asserting: ‘It is clear from customary law that States do owe a duty to each other to prevent terrorist acts, but this duty extends only as far as a state’s means practically allow.’38 The 1988 SUA Convention does not embrace this position but is predominantly reactive, rather than preventative, in nature.39 For a treaty purporting to deal with ‘suppression’ of unlawful acts, there is little in the 1988 SUA Convention that supports this particular purpose. It is therefore unsurprising that the treaty was considered ripe for review with increasing interest in protecting against the occurrence of terrorist attacks and proliferation of WMD.
The key treaties in place addressing the proliferation of WMD and associated materials are the Nuclear Non-Proliferation Treaty (NPT),40 the Chemical Weapons References(p. 155) Convention,41 and the Biological Weapons Convention.42 The Chemical Weapons Convention bans the development, production, acquisition, stockpiling, retention or transfer to anyone of weapon-grade toxic chemicals and their precursors. However, one of the difficulties with this treaty in relation to the shipment of WMD and related materials is that the ban does not extend to chemicals that are to be used for peaceful purposes. The Biological Weapons Convention prohibits state parties from developing, producing, stockpiling or otherwise acquiring or retaining biological weapons for hostile purposes or for use in armed conflict, which leaves open the possibility of doing so for defensive purposes. Finally, the NPT is addressed precisely to the question of proliferation of nuclear weapons but is limited in that it only recognizes the existence of five nuclear weapon states,43 and not states such as Pakistan, India, Israel, and North Korea. Moreover, nuclear weapon states that are outside the NPT are not bound by prohibitions of shipping nuclear weapons and materials to each other. Even for those states within the NPT regime, they are entitled to research, produce, and use nuclear energy for peaceful purposes.44 The United States has interpreted the NPT to require states parties to interdict vessels suspected of carrying illegal nuclear materials in their territorial seas, but Valencia notes that this requirement is not explicit in the NPT.45
The operation of these treaty regimes has been supplemented by various political arrangements between interested states. Most relevant for the shipment of WMD and related materials are the multilateral export control regimes, which are more specific in relation to transfer and possession than the WMD treaties, but are not formally binding under international law. One such arrangement is the Australia Group, which deals with the coordination and harmonization of national export controls for chemical and biological weapons-related material. The Zangger Committee and the Nuclear Suppliers Group provide oversight to the export controls of the NPT. The Missile Technology Control Regime (MTCR) consists of a nonbinding political arrangement to control the proliferation of rocket and unmanned air vehicle systems capable of delivering WMD.46 Through the MTCR, 90 states have been part of a declared Hague International Code of Conduct Against Ballistic Missile Proliferation—Joyner describes it as ‘com[ing] into force as a non-binding arrangement among its ninety declarants’.47 These treaties and regimes have not proved sufficient in ending the black market in WMD and related material. References(p. 156) Difficulties as to their effectiveness exist in terms of their enforcement and whether there is widespread subscription and compliance with their strictures.48
Beyond the deficiencies and gaps in the existing non-proliferation regimes, there are further complications confronting states that wish to improve maritime security by dealing with shipments ofWMD and related material for either non-proliferation or counter-proliferation efforts. In the first instance, the transfer of these weapons is not necessarily unlawful under international law.49 Moreover, as noted by Joyner, ‘with few exceptions there is very little hard or formal international law not only on the question of transfers of nuclear, chemical, and biological materials, agents, and compounds and the associated myriad dual-use items and technologies that could be used to turn those materials into weaponized devices, but even more fundamentally on the question of the possession of such technologies’.50 So as a preliminary matter, states need to exercise prescriptive jurisdiction to devise specific offences related to the shipment of WMD and related materials.51
The exercise of prescriptive jurisdiction is complicated here because many of the components, technologies and production materials associated with WMD are dual-use in nature (that is, they have civilian as well as military end-uses). Beck has stated that ‘95 percent of the ingredients for WMD are dual-use in nature, having both civilian and WMD applications.’52 The NPT, Chemical Weapons Convention, and the Biological Weapons Convention all permit states parties to possess and trade dual-use materials. The problems associated with the transfer of dual-use items became apparent with the weapons inspections conducted in Iraq after the 1991 Gulf War and the discovery of an advancedWMDprogramme that had primarily relied on the import of dual-use materials from companies in the West.53
For enforcement jurisdiction to be exercised, it would be incumbent on the enforcing state to show that the dual-use item in question was in fact to be used for weapons development, rather than an alternative peaceful, legitimate, and legal purpose.54 The means for exercising enforcement jurisdiction over these new offences also needs to be established in view of the limited instances where states References(p. 157) are able to exercise law enforcement powers outside their territorial seas. In this regard, Valencia writes:
Some analysts argue that interdiction is critical to preventing the spread ofWMDbecause of the rapid growth in states and groups pursuing WMD programmes, the purported expanding nexus between WMD and terrorism, and the failure of the current non-proliferation architecture. Interdiction fills the lacunae by ensuring commitments are kept and stops proliferation-related exports by states outside existing non-proliferation regimes. Moreover, it deters suppliers and customers and makes proliferation more costly and difficult.55
The lacunae arising from the WMD proliferation regime in the maritime context could therefore be seen in relation to the authority for states to stop the transport of WMD and related material at sea, as well as the existence of appropriate jurisdictional bases for action at port and in the territorial sea. WhenWMDproliferation is coupled with the possibility of their acquisition and use by terrorists, the impetus for action is greater. As discussed in the following parts, legal initiatives have been undertaken to address the threat of terrorism and proliferation of WMD both in port and at sea.
Improving port security to address the maritime security threats of terrorism and proliferation of WMD has been essential for several reasons. In the first instance, ports are of course the interface for international shipping with the production and delivery of goods. Ports are the vital starting and end points in maritime transport. The disruption of this interface because of a terrorist attack will obviously hinder international trade and the unavailability or reduced capacity of a port could well have consequences that negatively affect other ports in the transport chain. Moreover, the vulnerability of ports in this regard is underlined when it is recalled that ports have already been targeted for attacks in the past.56 Finally, port security is important because it is ultimately easier from a purely practical perspective to inspect vessels when they are in port rather than when those vessels are at sea. These factors have motivated multilateral reform within the IMO with the adoption of the ISPS Code. Further, the US-led development of the Container Security Initiative has sent benchmarks for reform in countries that are home to the more important ports for international trade and also instigated change under the auspices of the World Customs Organization.
(1) ISPS Code
Well prior to the attacks on September 11, 2001, the IMO had considered ways to improve security of ships both at port and at sea through the adoption of a circular References(p. 158) in 1986 entitled ‘Measures to Prevent Unlawful Acts against Passengers and Crew on Board Ships’.57 The recommendations contained therein were voluntary and were not at all widely adopted by the governments of ship operators.58 This situation was to be significantly redressed subsequent to September 11.59 One of the key developments in addressing ship and port security was the adoption of the ISPS Code.
This Code was developed as an amendment to the 1974 Safety of Life at Sea Convention (SOLAS Convention) and came into force in July, 2004.60 The ISPS Code is enshrined in Regulation XI-2/3 of the SOLAS Convention. In attaching the ISPS Code to the SOLAS Convention, states parties to the SOLAS Convention agreed to amend Chapter XI of this treaty to include special measures to enhance maritime security in a new part. The amendments to the SOLAS Convention were made by what is known as the tacit acceptance system whereby the amendments automatically come into force once adopted by the IMO, unless sufficient states object.61 In the ISPS Code’s adoption, the SOLAS Convention was extended beyond questions of maritime safety to issues of maritime security. Part A of the Code sets out mandatory security-related requirements for governments, port authorities, and shipping companies. Part B then comprises a series of nonmandatory guidelines as to how these requirements might be met.
The ISPS Code is intended to identify and allow for preventive measures against security incidents, which are ‘any suspicious act or circumstance threatening the security of the ship’.62 It applies to passenger ships and cargo ships of 500 gross tonnage and upwards, including high-speed craft, mobile offshore drilling units, and port facilities serving such ships engaged on international voyages. The extent to which the ISPS Code applies to ships thus depends on ‘the type of ship, its cargoes and/or passengers and the trading patterns of visiting vessels’.63 More than 98 per cent of the world’s shipping operates under the SOLAS Convention.64 However, the ISPS Code does not apply to warships or other government ships used for non-commercial service, nor does it apply to any fishing vessel of any References(p. 159) size.65 Immediate difficulties arise here given the potential for vessels ostensibly being used for fishing purposes instead being put to terrorist purposes. For example, the vessels used to attack the USS Cole and Iraqi oil platforms would not have been covered by the ISPS Code so were not potentially identifiable as a maritime security risk. The IMO has taken one step to address this problem through the adoption of non-mandatory guidelines on security aspects of vessels falling outside the ISPS Code and other amendments to the SOLAS Convention.66 It remains to be seen whether this circular is a precursor to more formal requirements to otherwise redress this gap. The continual recognition of immunity of warships and designated government vessels also poses potential risks for non- and counter-proliferation efforts.
‘The purpose of the ISPS Code is to provide a standardised, consistent framework for evaluating risk, enabling governments to offset changes in threat levels with changes in vulnerability for ships and port facilities.’67 The ISPS Code is intended to be a risk-management exercise whereby levels of security are determined by the extent of risk to which a port is exposed and what measures need to be put in place in relation to the assessed risk at any one port.68
The ISPS Code accords a variety of roles to port, coastal, and flag states, as well as particular individuals who are to act as Port Facility Security Officers, Company Security Officers, and Ship Security Officers.69 Particular duties for each of these individual roles are set out in the ISPS Code and are essentially intended to improve communication and cooperation between ships, their offices, port facilities, and the relevant states, as well as creating a ‘culture of security’ ashore and on board the ship in regular shipping operations.70
Flag states are responsible for approving the Ship Security Plans that must be held by each vessel to which the ISPS Code applies and developing a Declaration of Security to clarify the duties between the port facility and the ship.71 Flag states further have the responsibility for assessing security threats and setting security levels as appropriate for their vessels.72 Coastal states must develop and implement Port Facility Security Plans on the basis of a Port Facility Security Assessment, as well as train the Port Facility Security Officer.73 Security assessments involve identifying and evaluating important assets and infrastructure; identifying the References(p. 160) threats to those assets and infrastructure; and assessing possible aspects of port vulnerability.74 Port states determine the security levels for their ports.75 To reduce vulnerabilities, ships ‘will be subject to a system of survey, verification, certification and control to ensure that their security measures are implemented’.76
The ISPS Code involves the provision of information to ports regarding vessels seeking to enter that port. This information includes the security level at which the ship is operating and had been operating during the previous 10 port visits, as well as any special or additional security measures that were undertaken in any previous port.77 Information may further be sought in relation to ship-to-ship activity as well as a range of other practical security-related information, though not on the ship’s security plan.78 The security information to be provided prior to entry into port has been proposed by the IMO Maritime Safety Committee with the intention of harmonizing what data set may be required from each port.79 However, states still retain the option to seek additional or supplementary information as a condition for entry into a port located within its territory.80 The required minimum time for the submission of information is not to be less than 24 hours, which is roughly equivalent to 500 nautical miles from a state’s coast.81
This flow of information is therefore a critical aspect of the successful operation of the ISPS Code. However, if there are shortcomings in the information provided, limited enforcement options are available to port states. If a master of a ship declines to provide the requested information, then a state may opt to deny entry of that ship into port. In the further event that the assessment of the available information leads to the conclusion that there are clear grounds for believing that the ship is in non-compliance with the requirements of Chapter XI-2 of the SOLAS Convention or Part A of the ISPS Code,82 then the port state may require that efforts be undertaken to rectify the non-compliance.83
If the non-compliance is not rectified, the port state is entitled to require the ship to proceed to a specific location in its territorial sea or internal waters, inspect the ship in its territorial waters prior to entry into port, or deny the ship entry into port.84 (p. 161) Before those steps may be initiated, the master of the ship is to be notified of the port state’s intentions in this regard so that the master has the opportunity not to enter that port.85 For the inspection of the ship in the territorial sea, the Maritime Safety Committee envisages that it would ‘be undertaken normally when there was information/ intelligence … suggesting that there were “clear grounds” for suspecting that the ship was not in compliance with the provisions or posed a threat to the port facility’.86 The obvious difficulty here is that if a security threat is perceived by virtue of this information-seeking process, the port state is only able to take steps to reduce or eliminate that threat once the vessel is in port or within 12 miles of its coast. Such proximity to a port state’s maritime assets may be quite undesirable.
Port states may further verify that a vessel has an International Ship Security Certificate, which confirms that a ship is compliant with Chapter XI-2 of SOLAS and the ISPS Code. If a certificate is not provided or there are clear grounds to believe that a vessel is not in compliance with the ISPS Code or Chapter XI-2 of SOLAS, then certain control measures may be taken if a state still allows the ship to enter its port. These measures are limited to inspection, delaying, detaining of the ship, or restrictions of its operation in port, or lesser administrative or corrective measures.87 The control measures are to be implemented in such a manner to ensure that they are proportionate, reasonable and of the minimum severity and duration necessary to rectify or mitigate the non-compliance.88 Again, the problem arises that the very presence of the vessel in port may be a danger in its own right.
States are, however, left with some discretion, as the Maritime Safety Committee of the IMO has envisaged the possibility of action additional to the threats anticipated under the ISPS Code and the measures that may be taken in response:
On the question of what was understood to be an ‘immediate threat’ in regulation XI-2/ 9.3.3, the Committee agreed that this could cover two scenarios: firstly, that the ship did not comply with the provisions of SOLAS chapter XI-2 and part A of the ISPS Code and therefore was considered to be a threat, or secondly, … intelligence or other information had been received indicating that the ship posed an immediate threat or was under threat itself. The Committee recognized that there may be other scenarios where, under international law, Contracting Governments could take additional measures outside of SOLAS regulation XI-2/9 for national security or defence, even if a ship fully complied with SOLAS chapter XI-2 and part A of the ISPS Code.89
Although ‘additional measures’ may therefore be taken, these steps remain constrained to the dictates of the existing law of the sea.
A critical issue in relation to the success of the ISPS Code in responding to threats to maritime security is the question of compliance with its requirements. ‘It (p. 162) is anticipated that market forces and economic factors will drive compliance.’90 However, there is rightly concern that reliance on flag states to adhere to the requirements of the ISPS Code will undermine its effectiveness. This concern stems from the economic capacity of developing states with considerable fleets, such as Panama, to administer the requirements of the ISPS Code.91 Thus far, despite initial concerns about the necessary measures being implemented in time,92 compliance with the ISPS Code has been favourably reported.93 Port facilities have apparently taken longer to achieve compliance than ships.94
It does seem that the restriction of the port state’s responses to assessed risks to areas within its territorial seas, internal waters and ports will not alleviate all concerns to counter terrorism threats as may be required. While the ISPS Code does permit greater transparency in terms of knowing more about the voyage of a particular vessel, there still could have been greater scope accorded to port authorities in responding to vessels perceived to be a security risk. Consistent with other agreements concluded at the IMO, enforcement is a matter left to flag states and so no new enforcement powers were granted to port states under the ISPS Code.
Nonetheless, as a risk-management exercise for ports, which ensures that ports have procedures in place to handle terrorist threats, the ISPS Code is a considerable advance in the laws related to maritime security. It fits squarely within the traditional construct of the law of the sea as it is consistent with the sovereignty exercised by states over their ports, internal waters and territorial seas. Moreover, certain deference is still accorded to the freedom of navigation, as the master of a ship is given the opportunity to avoid a port when that master knows control measures may be instituted against the ship. In addition, the control measures are balanced against needs to maintain the efficiency of international shipping. In these respects, the ISPS Code stands as an example of states cooperating to improve maritime security, reflecting the shared interest in reducing security risks for ports and the majority of ships.
The security of ports has also been bolstered through the US-led Container Security Initiative (CSI), which is intended to provide greater information about what is being shipped where and to who as a means of protecting the global supply chain from terrorism. The CSI commenced in January 2002 and is preventative in nature in terms of seeking information about what is being carried in containers as a means of thwarting terrorist activity. Approximately 90 per cent of current global trade in goods is through the use of shipping containers.95 In particular, the United States was concerned about shipping containers being used for the transport of WMD and terrorists,96 along with their supplies.97 One scenario of concern has been the detonation of a so-called dirty bomb or nuclear device in a US port after being unloaded from a container ship.98 This possibility seemed greater when it was taken into account that over 8,000 ships make 51,000 port calls and deliver around 7.5 million overseas containers in the United States annually, and of those containers, only 2 per cent are actually inspected.99
The nature of international shipping is such that a large number of individuals, such as manufacturers, exporters, importers, carriers, and customs and port officials, may be involved in handling the cargo or providing information about the contents of the container.100 Keefer describes the consequences for security as follows:
Opportunities for security breaches occur primarily in the following stages of the shipping process: (1) the packing process at the foreign warehouse or factory; (2) the transport of the packed goods from that location to the foreign port at which the goods will be loaded; and (3) the preparation of the cargo manifest setting forth the contents and other information about the goods being shipped. Given these opportunities to tamper with the shipment (p. 164) process, container security efforts focus in large part on container inspection and documentation, container seals, and the secure storage of containers.101
If containers are intercepted offshore, then any potential damage may be limited. However, the practicalities of inspecting containers while they are packed on a vessel are not conducive to offshore interdictions. As containers are more easily inspected on land, the United States opted to undertake these checks before the containers reach the United States, hence in the ports of other states prior to the containers being shipped.
While the CSI was initially undertaken pursuant to pre-existing statutory authority in the United States, it was subsequently codified in 2006 in the Security and Accountability for Every Port Act (SAFE Port Act).102 To support the CSI, the United States has also instituted additional security measures through national legislation. The range of programs instituted for port security is referred to collectively as the ‘US Cargo Security Strategy’.103 While these are domestic measures, they have inevitably impacted on international shipping given the extent of international trade involving the United States. One such initiative is known as the 24 Hour Rule, which was implemented in January 2003.104 Under the 24 Hour Rule, information on goods to be shipped to or through the United States must be provided to US officials 24 hours prior to the cargo being lade aboard a vessel in a foreign port.105
The United States has also instituted requirements for the use of particular types of container seals and to provide information on cargo manifests as to the seal number for each container.106 A further initiative has been the Customs-Trade Partnership Against Terrorism (C-TPAT), which emphasizes coordination between the shipping industry and government customs officials. If industry participants voluntarily meet specified minimum security criteria then they are entitled to various benefits in relation to decreased cargo examination and more expeditious access into US ports.107 C-TPAT was initially criticized because of its reliance on trust, rather than verification.108 These initiatives all hold significance under the law of the sea because the many countries shipping to the United States must conform to these requirements and because the United States has successfully sought bilateral and multilateral acceptance of its standards.109
(p. 165) For pre-screening under the CSI, the United States concluded agreements with various port states, particularly those with the largest volume of cargo destined for the United States, but with the goal of pre-screening occurring at all ports of departure regardless of size and traffic volume.110 The three key elements of the CSI are:
3. full utilization of technology to pre-screen high-risk containers.111
In undertaking security checks in foreign ports, the CSI is intended to push out US borders so that US government functions related to border security are undertaken outside US territory and relies upon the cooperation of foreign governments.112
To identify high-risk containers based on advanced information and strategic intelligence, US customs officials share information on a bilateral basis with its CSI partners. To be involved in the CSI, participant states must commit inter alia ‘to sharing critical data, intelligence, and risk management information … in order to do collaborative targeting, and developing an automated mechanism for these exchanges’.113 While US officials may access shipment information and act in an advisory capacity to identify shipments of concern, the foreign host governments determine whether, when, and how to inspect potentially problematic containers.114
Each state concludes its own agreement with the United States and implements new law or revises its law to give effect to the agreement.115 The bilateral nature of these arrangements has proven problematic in some instances. The United States entered into bilateral agreements with eight European states, provoking a dispute within the European Union on the basis that the bilateral agreements were in violation of European law since they potentially gave those states an unfair competitive advantage over European Union member states with ports not involved in the CSI.116 In addition, as bilateral agreements, the United States has ostensibly granted reciprocal rights to its treaty party to undertake similar security checks in the United States. However, it is widely recognized that the implementation of the (p. 166) CSI has been heavily skewed in favour of the United States.117 In addition, civil penalties may be imposed on shippers if there is a failure to comply with the new regulations, and permission to load or unload cargo to or from the vessel may be denied.118
In pursuing the CSI, the United States has endeavoured to highlight the advantages for international trade. Economic benefits from the CSI arise in that cargo bound for the US is processed on an expedited basis upon arrival as it has already been inspected at a foreign port, and any port involved in the CSI would be less disrupted in the event of a terrorist attack in light of the fact that it has a security system in place.119 A further purported benefit is that the improved security will allow for a decrease in the cost of insurance.120 Costs for states involved in the CSI may arise from the need to obtain new inspection equipment, although the United States characterizes this as an investment comparable to insurance.121 A further financial implication of the CSI is that the examination costs have been shifted from the US importer to the foreign shipper.122 There are concerns that costs will then be passed on to the consumer.123 The arguments that international trade is facilitated through the CSI need to be stronger if maritime security concerns are not widely accepted as sufficient justification for a concerted, unilateral, effort at revising port operations.
The CSI has raised concerns about infringing on state sovereignty, particularly in relation to interference with another state’s ports and closer regulation of the activities of the shipping industry by one, albeit powerful, state.124 This interference in state sovereignty is underlined by the lack of true reciprocity in most of the bilateral agreements concluded by the United States for the purposes of the CSI.125 The imposition of sanctions whereby vessels navigating to or from the United States may not provide transportation to ports with ineffective security measures has also been seen as a way of imposing US standards for maritime security throughout the world.126 The assertion of such special interests could have been deemed as incompatible with the common interest. Beckman has suggested that the infringements (p. 167) on sovereignty would not have been tolerated by states prior to the September 11 attacks.127
Noortmann has argued that the CSI is an appropriate mechanism to use to respond to maritime security threats because it avoids novel interpretations of coastal state rights within the territorial sea, and particularly the risk of unilateral enforcement measures that would be outside the confines of the existing law of the sea.128 Instead, the CSI is geared to improving security measures at ports, ostensibly with the consent of the states concerned, and may ultimately lead to a harmonization of standards for cargo security, at least between ports dealing with the highest volume of containers.129 The US Secretary for Homeland Security justifies this approach with the view that ‘shipping is a global industry; terrorism is a global problem; and our collective security requires a global solution.’130 To the extent that the CSI may reflect a collective response to a maritime security threat, it is less objectionable to an exclusive claim to impose the requirements of one state upon many. The US dominance in instituting the CSI tends to undermine the collective nature of the response.
Beyond the bilateral agreements pursued by the United States to protect the global supply chain through the CSI and other domestic regulations, there has been support within the World Customs Organization, the European Union, APEC, and the G8 for the expansion of the CSI principles, including non-intrusive inspection standards on a global level.131 The World Customs Organization adopted a resolution in June 2002 to enable ports in its member states to begin developing CSI-like programmes, which would include ‘collection of data concerning both outbound shipments in electronic form, use of risk management to identify and target high-risk shipments, and use of radiation detection and largescale technology to identify containers that pose a security threat’.132 This resolution then paved the way for the adoption in June 2005 of the Framework of Standards to Secure and Facilitate Global Trade.133
The WCO Framework of Standards draws on elements of the CSI, as well as the 24 Hour Rule and C-TPAT.134 It is described as involving two pillars, creating a customs-to-customs network on the one hand and a customs-to-business (p. 168) partnership on the other.135 Four core elements then rest on these pillars: (1) harmonizing the advance electronic cargo information requirements on inbound, outbound, and transit shipments; (2) employing a consistent risk-management approach to security threats; (3) performing on request outbound inspection of containers and cargo identified as high risk; (4) defining benefits for businesses that meet minimal supply chain security standards and best practices.136
More specific standards are provided in an accompanying Annex, and these are intended to set forth a minimal threshold for WCO members, with gradual implementation while the necessary capacity building and legislative authority are developed.137 The WCO Framework of Standards seeks to facilitate the transit of legitimate trade through electronic documentation, rather than physical inspection of every container. The preference is then for high-risk cargo to be inspected through non-intrusive means, such as large-scale X-rays. Much thus depends on the accuracy of the documentation. The precise lists and criteria used to identify high-risk cargo are classified, but it has been predicted that the criteria could be deciphered and then descriptions of cargo altered to prevent detection.138 Nonetheless, the processes proposed within the WCO Framework of Standards is the most realistic given the effort to balance maritime security measures with objectives to facilitate international trade.
One significant feature of the WCO Framework of Standards is that it provides a mechanism for member states to take the necessary steps to develop a certain level of uniformity and predictability between customs agencies in the international shipment of goods, especially through the reduction in multiple reporting requirements.139 Another significant feature is that it reflects an internationalization of US cargo security policy and the multilateral support received may be considered indicative of the acceptance of states of the intrusion into their sovereign authority over ports because of the shared interest in taking steps to augment maritime security. This acceptance may have been more readily achieved precisely because a binding treaty was not adopted and because the WCO Framework contemplates the need for gradual capacity building, rather than obliging the implementation of new procedures by a specific deadline.140
Although the law enforcement powers of port states have been augmented to deal with threats to the marine environment,141 no comparable powers of investigation and detention have been accorded to port states in the event of reasonable suspicions of a vessel being involved in some way in terrorism or the proliferation of WMD. The prime benefits of the ISPS Code appear to lie in its operational requirements in that there are now international standards required for assessing risk and formalized procedures for addressing security issues between ships and ports. More attention is necessarily accorded to questions of security in the maritime transport industry as a result. For combating terrorism and the proliferation of WMD, the provision of information may be a vital tool in determining whether suspicions about a particular vessel may reasonably be raised. In the event of such suspicions, the mechanisms under the ISPS Code do not provide for new enforcement powers but when these suspicions are coupled with existing powers related to innocent passage and national criminal authority over ports then the legal frameworks of states may be sufficient to respond to or prevent these maritime security threats.
Both the CSI and the ISPS Code provide examples of efforts to improve the security of international shipping without overly restricting international trade. Each development has needed to take into account the economic costs of reducing efficiency in trade through potentially burdensome reporting and inspection requirements. The United States has sought to reduce these impacts in various ways, including conducting inspections at times when the cargo would be sitting in ports anyway. Ultimately, the steps that the United States takes have greater legitimacy if they are endorsed on a multilateral basis rather than imposed because of its economic and political strength. The WCO Framework of Standards goes some way to provide multilateral support to the CSI, and is particularly useful for the potential harmonization of reporting requirements and inspection standards to be followed on a global level. The improvements to port state controls through the ISPS Code and the CSI reflect some recognition of the need to respond to terrorist and proliferation threats to maritime security but the resistance to interference in sovereign matters of states has continued to limit the preventive efforts.
One of the key responses to maritime security threats of terrorism and proliferation of WMD are interdictions in an EEZ or on the high seas (areas collectively referred to as ‘international waters’ by the United States and in various international instruments).142 While inspections of vessels may be more easily accomplished References(p. 170) when a vessel is at port, the political dynamics may be such that a port state will not conduct an inspection if it risks antagonizing the port state’s relationship with the flag state of the vessel in question. Interdictions in international waters may constitute an urgent response to prevent a vessel reaching its target destination. An interdiction at sea may also allow for a suspect vessel being escorted to a port of the interdicting state or one of its allies to facilitate a closer inspection.
While reasons may therefore exist to support interdictions at sea as a means of thwarting terrorism and proliferation of WMD, the legal basis for doing so has needed to be developed. The right of visit has not previously extended to these maritime security threats,143 and the traditional paradigm of the freedom of navigation coupled with the flag state’s exclusive jurisdiction over its vessels in these maritime areas has meant that any right of visit has required the consent of the flag state, either under treaty or on an ad hoc basis. There has been considerable opposition on the part of flag states to forgo their exclusive authority despite agreement as to the seriousness of terrorism and WMD proliferation as maritime security threats. The United States has been the prime instigator seeking to overcome this resistance, even though it shares an interest in protecting the freedom of navigation. The fact that it is the United States that has spearheaded these initiatives may have contributed to some states opposing significant changes under the law of the sea.
While the balance to be achieved is undeniably a fine one, results thus far appear to favour the inclusive interest in the freedom of navigation over a common interest in maritime security. It is understandable that more states may consider that they have greater stakes in navigational freedoms than in responding to what may seem as speculative concerns about terrorist attacks and the shipment of WMD. While the risks of one of these threats being realized may seem low, the consequences are sufficiently severe that greater acknowledgement should have been accorded to the common interest in maritime security. The failure to grant greater weight to interests in maritime security is manifest in the 2005 SUA Protocol, and also in the US efforts to conclude bilateral agreements allowing for interdictions in international waters, which are both discussed in this part of the chapter.
(1) 2005 SUA Protocol
The United States sought to improve the multilateral legal framework of the 1988 SUA Convention by permitting international recognition of an expanded range of terrorist offences (encompassing concerns related to the proliferation of WMD) and procedures for exercising jurisdiction in the face of these suspected offences at sea. These efforts resulted in the adoption at the IMO of a second Protocol to the 1988 SUA Convention on 14 October 2005.144
References(p. 171) In revising the 1988 SUA Convention, states had the opportunity to update its provisions in line with subsequent counter-terrorism treaties, as well as specifically confront new forms of maritime terrorism. With respect to the former, treaties such as the Terrorist Bombing Convention,145 the Terrorist Financing Convention,146 and the Nuclear Terrorism Convention147 had been adopted and included text that overcame some of the controversial aspects of the 1988 SUA Convention. Modifications could therefore be made to the application of the political offence exception,148 the application of counter-terrorism treaties to the armed forces of a state,149 and reference to a generally agreed description (albeit not a strict definition) of terrorism.150 The 2005 SUA Protocol thus incorporates these various developments. The inclusion of new offences over which states could establish and enforce jurisdiction proved more controversial.
In undertaking the negotiations to amend the 1988 SUA Convention, the critical task was to find a balance between the need to respond to (and pre-empt) new threats to the security of shipping, as well as to states more generally, and showing deference to well-entrenched interests in maintaining the pre-eminent authority of the flag state over its vessels. Jesus has promoted this approach:
As with everything in life, a balance of interests should be found between the different states. While the jurisdiction to board, search, seize and arrest the ship and offenders should be accepted as another exception to the flag state exclusive jurisdiction on the high seas or in territorial waters in exceptional crime circumstances, such jurisdiction extension would have to be balanced with respect for the flag state’s rights, by adopting safeguard provisions on compulsory conflict resolution, compensation for damage and loss in case of unwarranted exercise of police jurisdiction, and sharing of information with the flag state as to the police action and its results.151
Ultimately, however, the 2005 SUA Protocol creates a much tighter balance in that the protections for the flag state do not include all those mentioned by Jesus but nor does it establish by dint of the treaty alone a new exception to exclusive flag state jurisdiction. It is argued here that the trade-offs should have been greater on both sides of the scales in order to create a more effective instrument. This section addresses the new offences recognized in the 2005 SUA Protocol and focuses on the new ship-boarding procedure established under this agreement.
References(p. 172) (a) Offences under the 2005 SUA Protocol
The initial focus on revisions to the 1988 SUA Convention concerned the expansion of offences under Article 3 over which states parties could establish jurisdiction.152 In setting out offences, Article 3 of the 1988 SUA Convention included violence against or destruction of ships; seizure or exercising control over a ship by force or intimidation; and communication of false information that endangers the safe navigation of the ship.153 The United States’ initial proposals for expanding Article 3 centred on offences related to the release of harmful substances that would cause death or serious bodily injury, without necessarily endangering the safe navigation of the ship; transportation of persons or items for terrorist purposes; and criminalizing the use of a ship or cargo as a weapon.154
The offences in the 1988 SUA Convention have therefore been expanded under the 2005 SUA Protocol to include reference to ‘serious injury or damage’, which is defined to include ‘substantial damage to the environment’ and incorporates reference to offences involving a ‘BCN weapon’, which is defined as biological weapons, chemical weapons, and nuclear weapons and other nuclear explosive devices.155 While incorporating reference to BCN weapons, the 2005 SUA Protocol does not affect rights, obligations and responsibilities under the Biological Weapons Convention, the Chemical Weapons Convention nor the NPT.156
An offence is created under Article 3bis(1)(b) in relation to the transport on board a ship of any explosive or radioactive material knowing that it is to be used in a terrorist attack, and the transportation of biological, chemical and nuclear weapons, and related materials. ‘Some states have objected to the inclusion of References(p. 173) [a provision on the transport of WMD and related materials] as a matter of principle because it created offences relating to the non-proliferation of WMD or other materials that were not directly linked to terrorism.’157 In this regard, the revision of the 1988 SUA Convention appears to have provided an opportunity to enhance non-proliferation efforts generally. This point is reinforced by the fact that the transport of component parts ofWMDdoes not necessarily endanger the safety of the ship or the safety of maritime navigation.158 To have taken this step nonetheless reflects that concerns about security are holistic in that threats at sea may constitute, or become, threats on land. It was therefore appropriate for states to seek to close these gaps in this regard.
(i) uses against or on a ship or discharges from a ship any explosive, radioactive material or BCN weapon in a manner that causes or is likely to cause death or serious injury or damage; or
(ii) discharges, from a ship, oil, liquefied natural gas, or other hazardous or noxious substance, [not covered in (i)], in such quantity or concentration that causes or is likely to cause death or serious injury or damage; or
(iii) uses a ship in a manner that causes death or serious injury or damage; or
Article 3ter then establishes an offence for the transport of an offender with the intention to assist that person in evading criminal prosecution. The offender may not only be culpable under the 1988 SUA Convention and 2005 SUA Protocol in this regard, but also in relation to nine other counter-terrorism treaties that are included in a new annex to the 1988 SUA Convention under Article 7 of the 2005 SUA Protocol. The scope of this provision is again notable, as it accounts for the linkage of maritime security with security on land. The new offences under the 2005 SUA Protocol also extend to those who attempt, participate, organize, or direct others, or contribute to various of the principal offences set forth in the 1988 SUA Convention or the 2005 SUA Protocol.159
(b) Ship-boarding procedure
What was missing from the 1988 SUA Convention was a means effectively to apprehend offenders. Since the adoption of that treaty, ship-boarding procedures had been included in other multilateral treaties, such as the UN Convention against (p. 174) Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 Vienna Convention), and also the 2000 Migrant Smuggling Protocol.160 The inclusion of a procedure in the 2005 SUA Protocol to allow states to board ships marks a shift from merely providing lawful bases to establish jurisdiction to creating the means to exercise jurisdiction.161 The decision to include such a procedure was not taken lightly in view of the fundamental principles believed to be at stake. Hence, during the course of negotiations, the Legal Committee of the IMO recognized that:
the inclusion of boarding provisions constituted a significant departure from the fundamental principles of freedom of navigation on the high seas and exclusive jurisdiction of flag states over their vessels. It was accepted that the principle of flag State jurisdiction must be respected to the utmost extent, recognized in that a boarding by another State on the high seas could only take place in exceptional circumstances. Any exception must be precise, unambiguous and internationally accepted.162
The inclusion of a ship-boarding provision in the revised protocol emerged in August 2002 following discussions among a Correspondence Group established by the United States.163 As the 1988 SUA Convention needed updating to reflect developments from subsequent counter-terrorism treaties,164 the United States similarly proposed that the amendments should take into account ship-boarding provisions that had developed through the 1988 Vienna Convention, the Migrant Smuggling Protocol, as well as agreements relating to cooperation in suppressing illicit maritime trafficking in narcotic drugs and psychotropic substances in the Caribbean.165 In drawing on these treaties, the amendments to the 1988 SUA Convention thus expanded not only to reflect developments in relation to the suppression of international terrorism but also to create a new legal basis by which states would be able to exercise the right of visit on the high seas. The United States, a key participant in negotiations, considered that the 2005 SUA Protocol ‘establish References(p. 175) [es] the most well-developed boarding procedures and safeguard in any instrument of its type’.166
(c) Location of ship-boarding
The 2005 SUA Protocol sets out in Article 8bis procedures by which states parties may request that flag states of suspect vessels permit boarding outside the territorial sea of any state.167 Article 8bis is premised on the scenario of a state party wishing to board a vessel that either flies the flag or displays marks of registry of another state party. The drafters of the 2005 SUA Protocol considered how the nationality of vessels was to be described. A number of delegates supported inclusion of reference to a ship ‘claiming its nationality’, but the compromise text settled on was ‘displaying marks or registry’,168 which provided greater precision than a claim to nationality.
There is no suggestion in the 2005 SUA Protocol that the boarding provisions will interfere with a coastal state’s exercise of sovereignty over its territorial sea. Further, there is no explicit reference to the EEZ or the high seas and hence no overt recognition of how the rights of states may vary within these different maritime areas. This issue had proved polemic during the drafting of the 1988 Vienna Convention, with negotiating states settling on reference to vessels exercising the freedom of navigation in order to account for both the EEZ and the high seas.169 In the 2005 SUA Protocol, the only means by which any distinction is acknowledged is in respect of the safeguards to be in place during the boarding, and the requirement that a state party take due account of the need not to interfere with or affect ‘the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea’.170 It would appear that boarding must therefore take account of the right of coastal states in exercising sovereign rights and jurisdiction in the EEZ so as not to interfere with those rights.
For boarding to be authorized under the 2005 SUA Protocol, a requesting state must have ‘reasonable grounds to suspect that the ship or a person on board the ship has been, is or is about to be involved in the commission of an offence’ as set out in Article 3, 3bis, 3ter or 3quater of the 1988 SUA Convention and 2005 SUA Protocol.171 In the first draft, one of the conditions to authorize boarding was a reasonable suspicion of being involved in an offence, or a reasonable belief that the vessel was a target of one of those offences.172 This standard was subsequently tightened to refer to ‘reasonable grounds to believe’ that a vessel ‘has been or is about to be involved in, or the target of, the commission of an offence’.173 This change was to align the terminology with the standards set out in UNCLOS, the 1988 Vienna Convention and the Migrant Smuggling Protocol.174 However, in subsequent negotiations, preference was again expressed for reference to ‘reasonable grounds to suspect’.175 It is difficult to discern whether these slight differences in terminology will ultimately have any practical significance. It is less likely to be relevant on the international level in dealing with any possible disputes arising between states parties as to the interpretation and application of the 2005 SUA Protocol, but may be more significant in the standards applied in subsequent criminal proceedings following the arrest of an alleged offender or suspect vessel at sea in accordance with the Article 8bis procedure.
Any request to board ‘should, if possible, contain the name of the suspect ship, the IMO ship identification number, the port of registry, the ports of origin and destination, and any other relevant information’.176 Notably, there is no requirement expressly imposed on the state requesting permission to board to provide information explaining why it has reasonable grounds to suspect that a ship or person on board is involved in a proscribed act under the 1988 SUA Convention or References(p. 177) 2005 SUA Protocol.177 By contrast, this requirement is included in the bilateral ship-boarding agreements with the United States.178 In any event, the right of the flag state to impose conditions on its authorization to board or the general reference to ‘other relevant information’ may be enough to warrant the disclosure of evidence related to the suspected offences if desired by the flag state.179
A request may be issued orally, but must be confirmed in writing as soon as possible. It is incumbent on the flag state to acknowledge receipt of any oral or written request immediately.180 Although not completely clear on the face of the text, it appears that in making the request, the requesting state also seeks confirmation from the flag state as to the claim of nationality of the suspect vessel.181
The three possible avenues by which a boarding may occur pay deference to the pre-eminence of the flag state in its authority over vessels on the high seas.182 The first avenue anticipates consent on an ad hoc basis. Second, consent is accorded implicitly if prior authorization is notified to the IMO Secretary-General and no response to a request is forthcoming from the flag state after four hours. Finally, if prior authorization is notified to the Secretary-General then consent is again considered implicit but there is no need to wait four hours for permission to visit (p. 178) the suspect vessel. Considerations in developing these procedures included minimizing the possible inconvenience that may be caused to a suspect vessel during its journey while still limiting the circumstances by which that vessel could escape inspection.183 This structure underlines that permission to board requires express flag state authorization and that tacit and advance authorizations to board are only optional.184 The agreement reached in the 2005 SUA Protocol in this regard stands in marked contrast to the consent system created under the United States bilateral ship-boarding agreements.185
When proceeding on an ad hoc basis, the requesting state must first await confirmation of nationality from the flag state before seeking authorization to board and take appropriatemeasures with respect to the suspect ship.186 States parties must respond to requests pursuant to Article 8bis as expeditiously as possible.187 Ambiguity as to the precise time constraint appears to have been preferred to a specific timeframe.188 For example, a proposal to require a decision ‘as soon as possible and, wherever practicable, within four hours’, consistent with the Council of Europe’s implementation of the 1988 Vienna Convention, was not adopted.189 France, in particular, proposed a regime to be put in place in the event that no response came References(p. 179) from the flag state, involving alerts to shipping in the area or decision among states parties.190 However, ‘[s]everal delegations stated that the proposal was not needed, since the requesting State had a right to warn other Parties which could be implemented without any specific authorization being conferred by a provision in the protocol.’191
China considered that the ‘generic requirement’ to respond to a request as expeditiously as possible was sufficient and avoided unreasonable and impracticable difficulties in specifying a time limit.192 In agreement with China’s views, a majority of delegations considered that the imposition of a time limit was unnecessary as states would not ignore their obligations under the 1988 SUA Convention, or that such a limit was ‘too constraining, impracticable (especially if different time zones were involved) and served no real purpose’.193 It was further feared that giving a warning to states parties if there was no response would permit arbitrary judgment on the part of the requesting state and may well be ‘intimidating and counterproductive to the aims of the Protocol’.194 Given these views, it is apparent that a lack of response was not intended to be construed as an authorization to board but that deference to flag state authority prevailed.
The flag state is given four options under the 2005 SUA Protocol in deciding on how the boarding should proceed. It may authorize the boarding by the requesting state either on its own or with officials of the flag state, and, in either instance, subject the boarding to any conditions relating to responsibility for and the extent of measures to be taken.195 Alternatively, the flag state may conduct the boarding and search the suspect vessel itself, or decline to authorize a boarding and search.196 What appears to be lacking in this provision is an obligation on the flag state to take measures against one of its vessel when there are reasonable grounds to suspect the involvement of that vessel in the commission of an offence under the 1988 SUA Convention or 2005 SUA Protocol. This possibility of flag References(p. 180) state inaction would appear to be an unfortunate lacuna in the enforcement regime created in the 2005 SUA Protocol.
For ad hoc authorizations and boardings, the requesting state must receive express authorization from the flag state in order to proceed with boarding and other measures in respect of a suspect vessel. This preferred approach is obviously consistent with the traditional adherence to flag state authority in high seas areas.197 In earlier formulations of Article 8bis, the United States had proposed that requesting states could imply authorization if a flag state did not respond to the request to board after four hours. The United States considered that a fourhour default rule was ‘essential to the prompt conduct of the boarding, to minimize delay of the suspect ship, and to the early release of the warship … to conduct its other missions’.198 Concerns during negotiations about authorizing boarding through implicit consent during negotiations resulted in a proposal that states could opt out of such a situation by notifying the Secretary-General that boarding would only be authorized by express consent.199 In this case, implicit consent remained the default rule with the onus placed on states to take steps to exclude such a possibility through notification to the Secretary-General. However, the ‘opt-out’ formula proved unpopular during negotiations, as it was viewed as inconsistent with the right of a flag state to exercise exclusive jurisdiction.200 Ultimately, the need for express consent to be afforded on an ad hoc basis prevailed and implied consent after four hours was re-configured as an ‘opt-in’ clause.
This implicit authorization after a four-hour wait therefore constitutes an alternative avenue for states parties to consent to a ship-boarding. Paragraph 5(d) of Article 8bis permits a boarding to proceed in these circumstances provided the flag state had previously notified the Secretary-General to this effect. While this approach is more deferential to flag states, it does not overcome a number of the difficulties described by those opposing any form of implicit authorization. The four-hour time limit was again criticized as impracticable due to the problem of time zones and public holidays.201 In particular, the International Chamber of Shipping, the International Shipping Federation, and the International Confederation of Free Trade Unions opposed implicit authorization given concerns about the need for masters of vessels to have sufficient time to consult with ship owners as well as distinguishing between what would be a lawful tacit boarding and piracy or (p. 181) armed robbery at sea.202 However, this last issue should not have proved a major concern given that boardings under the 2005 SUA Protocol are to be conducted by law enforcement or other officials, and such persons and their ships would presumably be clearly marked and identified for these purposes.
A third alternative is that a flag state may notify the Secretary-General that a requesting state is ‘authorized to board and search a ship, its cargo and persons on board, and to question the persons on board in order to determine if an offence set forth … has been, is being or is about to be committed’.203 This ‘opt-in’ clause creates a power conferred by treaty to exercise the right of visit, and is comparable in this regard to the United States-United Kingdom Exchange of Notes in relation to drug trafficking.204 Given that it is an ‘opt-in’ provision, though, the emphasis remains on the freedom of choice afforded to flag states as to whether they will relinquish their authority for the purposes of preventing or responding to the offences addressed in the 1988 SUA Convention and 2005 SUA Protocol.205
The pre-eminent power of the flag state is further affirmed by the fact that the notifications relating to either form of implicit authorization may be withdrawn at any time. During negotiations, although several delegations supported a suggestion that the text should reflect that a withdrawal would only become effective after a certain period of time,206 no such time limit was included.207 While withdrawal from a treaty may generally not take effect until a reasonable period of time passes,208 it is not certain that the same rule would apply to the ‘opt in’ notification. In any event, the possibility that the withdrawal of notification has immediate effect is not barred in view of the failure of states explicitly to exclude this possibility in the text of the agreement.
In addition to detailing the manner by which a state may board a foreign vessel, a number of safeguards are incorporated into Article 8bis to temper the manner by References(p. 182) which the boarding may be conducted and to ensure consistency with international law standards.209 In this regard, paragraph 10 sets forth duties imposed on the requesting state such as the protection of the persons on board, the safety and security of the ship and its cargo, and not prejudicing the commercial or legal interests of the flag state. These sorts of protections are largely consistent with other treaties authorizing interdictions.210 Questions may arise as to the precise application of these safeguards in any particular factual context.
The conduct of the boarding must also be consistent with international law requirements relating to the use of force. At the outset of negotiations, it was proposed that any use of force in the course of undertaking a boarding of a suspect vessel was to be consistent with national law standards as well as the minimum reasonably necessary under the circumstances.211 States subsequently objected to national law exclusively governing the boarding of a vessel, so it was amended to refer to boardings consistent with international law.212 Further support was drawn from the formulation on the use of force in boardings included in the Fish Stocks Agreement.213 Article 8bis provides that the use of force is to be avoided ‘except when necessary to ensure the safety of its officials and persons on board, or where the officials are obstructed in the execution of the authorized actions’. Requesting states are further required only to use the minimum degree of force that would be necessary and reasonable in the circumstances.214 Similar to the other safeguard provisions, there is room for disagreement as to whether any particular use of force will be considered unnecessary or unreasonable in the context of a particular boarding.
It could be foreseen that any ambiguities in interpretation will ultimately be determined in the context of whether greater weight should be accorded to the interests of the state conducting the boarding or to the flag state of the interdicted References(p. 183) vessel. The balance is a difficult one because the treaty reflects the importance of taking action against terrorism and WMD proliferation, but also reflects the reticence of states to grant an excess of authority over their vessels to other states. Given the traditional emphasis is on the exclusive authority of flag states, it is imaginable that the safeguards will be enforced in a robust manner, rightly or wrongly, to protect this authority.
If evidence of unlawful conduct in relation to the offences under the 1988 SUA Convention and 2005 SUA Protocol is discovered as a result of the boarding, the flag state is to be promptly informed.215 The flag state may also authorize the detention of the ship, cargo, and persons on board.216 In these circumstances, the 2005 SUA Protocol specifies that the flag state has the right to exercise jurisdiction, or that the flag state may consent to another state exercising jurisdiction if that state would have jurisdiction by virtue of Article 6 of the 2005 SUA Protocol and 1988 SUA Convention.217 This formulation emphasizing the authority of the flag state reflects earlier drafts that explicitly referred to the primary right of the flag state to exercise jurisdiction.218 As such, it would seemthat the requesting state that conducts the boarding and uncovers unlawful conduct under the terms of Article 3, 3bis, 3ter, and 3quater may not ultimately be authorized to proceed with the prosecution of the alleged offenders if a jurisdictional nexus under Article 6 does not exist.
In the event that a boarding is conducted and the grounds for such measures are unlawful or prove to be unfounded, the burden then falls to the requesting state to compensate for ‘any damage, harm or loss attributable to [that state] arising from measures taken pursuant to’ Article 8bis.219 The possible attribution of liability in References(p. 184) these circumstances would tend to indicate that any decision to request authorization to board must in reality exceed the mere existence of a reasonable ground to suspect. However, a state conducting a boarding in this situation will not be liable if the ship boarded has committed an act justifying the suspicion in the first place.220 This limitation is consistent with the requirements set out in Article 110 of UNCLOS.221
(2) Bilateral ship-boarding agreements
Both prior and subsequent to the adoption of the 2005 SUA Protocol, the United States has sought to enter into ship-boarding agreements with states holding the largest shipping registries, and hence having the greatest number of flag vessels under their control and exclusive jurisdiction. The agreements are intended to facilitate cooperation by establishing points of contact in each state as well as setting out procedures to expedite requests to board and search suspect vessels in waters beyond the territorial sea. This approach enables the United States to establish authority that it would not otherwise have to board vessels suspected of carrying illicit shipments of WMD and related material. In pursuit of this policy, the United States has signed ship-boarding agreements with the Bahamas,222 Belize,223 Croatia,224 Cyprus,225 Liberia,226 Marshall Islands,227 Malta,228 References(p. 185) Mongolia,229 and Panama.230 According to the United States, the ‘combination of states with which we have signed bilateral ship boarding agreements, plus the commitments made by other Proliferation Security Initiative partners under the Statement of Interdiction Principles, translates into more than 60 percent of the global commercial shipping fleet dead weight tonnage now being subject to rapid action consent procedures for boarding, search, and seizure’.231
These ship-boarding agreements have some similarities to the ‘shiprider agreements’ that the United States has entered into with other states to permit boarding and searching of vessels flagged to those other states in order to curb drug trafficking.232 These treaties are ‘typically bilateral agreements that provide a mechanism, customized to the conditions and capabilities of the parties to the agreement, whereby law enforcement officials of either party may receive preauthorization to board and search flag vessels of the other state for the purpose of curbing the illicit traffic in drugs.’233 As such, the new bilateral ship-boarding agreements that are specifically directed at countering WMD threats constitute ‘powers conferred by treaty’ under Article 110 of UNCLOS to permit the right of visit that would not otherwise be countenanced under the freedoms of the high seas.
The preambles to the bilateral ship-boarding agreements recall a variety of sources of international law, including the NPT, the Chemical Weapons Convention, the Biological Weapons Convention, and the ISPS Code as well as the 1992 Security Council Presidential Statement,234 Security Council Resolution 1540 (adopted subsequent to the establishment of the PSI),235 and the Statement of References(p. 186) Interdiction Principles for the PSI. The preambles also reaffirm the importance of customary international law as reflected in UNCLOS. The object and purpose of each of the agreements is usually articulated as promoting cooperation between the parties to enable them to prevent transportation by sea of items of proliferation.236 In doing so, the parties also confirm that their obligations are to be carried out consistently with principles of sovereign equality and territorial integrity,237 but acknowledge that the cooperation may be limited by the availability of resources and must be in compliance with the constitutions and applicable national laws of each state.238
Further legal safeguards are built in through the inclusion of a clause that nothing in the agreements will ‘prejudice the position of either Party with regard to international law’,239 and to otherwise allow for ship-boarding under alternative authority, although still in accordance with international law.240 While the without prejudice clause in the US-Belize Agreement is very broad, the US-Cyprus Agreement elaborates on the position of parties under international law by stipulating that nothing in the agreement ‘shall be interpreted or applied in a manner that would derogate from the right of the national military authorities of a Party to engage in sea transport of any weapons, military materiel, or equipment for national defense purposes that is otherwise consistent with international law, including international agreements to which that State is party’.241
Beyond these introductory clauses, all of the agreements set forth similar offences, ship-boarding procedures, and safeguards. While a template agreement was clearly used,242 the negotiations with each state obviously required refining or tailoring of the provisions to address separate circumstances and concerns. The discussion here primarily looks to those points of similarity across all of the bilateral References(p. 187) agreements. Also discussed is the treatment of third states under some of the agreements, which may be relevant for cooperative endeavours that are needed in any given situation.
The agreements are directed to operations against ‘suspect ships’, which are those used for commercial or private purposes in respect of which there are reasonable grounds to suspect they are engaged in the illicit transportation of WMD and related materials.243 ‘Related materials’, which is an undefined term in the PSI context,244 is described broadly in the agreements as ‘materials, equipment and technology, of whatever nature or type, that are related to and destined for use in the development, production, utilization or delivery of WMD’.245 This definition does not overcome difficulties associated with dual-use materials and is dependent on a finding that the materials are to be used for military purposes. The agreements do not specifically criminalize the illicit transport of WMD and associated materials, but provides a basis in international law for the flag state to exercise jurisdiction over a detained ship, cargo, or other items and persons on board.246 The exercise of jurisdiction in this context is said to extend to seizure, forfeiture, arrest, and prosecution.247
(b) Ship-boarding procedure
Under these agreements, a state party may request confirmation of the nationality of a suspect ship, and, if the claim of nationality is confirmed, that authorization be accorded for the boarding and search of the suspect ship, cargo, and persons found on board.248 These requests are to include information identifying the particular vessel, as well as the basis for the suspicion warranting the request.249 The flag state may ask for additional information.250 In responding to requests, the flag state may verify nationality and, if satisfied that it is a suspect ship, the flag state may either conduct the boarding and search itself, permit the other state References(p. 188) to do so, or both states may do so together, or the flag state has the option of denying permission to board and search.251
Essential in the process of issuing requests and receiving authority (or not) to proceed is an open chain of communication between the states parties and within the domestic authorities of each state. For this purpose, a provision is included whereby points of contact are to be maintained current and that those points of contact must have the capability to receive, process, and respond to requests and reports at any time.252 However, to answer concerns that such authorizations may not be forthcoming, or may not occur in a sufficiently timely manner, the bilateral ship-boarding agreements establish implied consent regimes. As such, each flag state has a limited time to respond to a request for authority to board a suspect vessel (although it may request additional time in which to respond). Otherwise, the time allowed for a response is two hours for the Bahamas, Belize, Liberia, Mongolia, and Panama; and four hours for Croatia, Cyprus, Malta, and the Marshall Islands. If there is no response within that time, the requesting country is deemed to have conferred such authority (a notable exception to this is the US-Croatia ship-boarding agreement). This system of implied consent has been subject to criticism, as it reflects the unequal bargaining power of the United States with some of its negotiating partners, particularly vis-à-vis the Bahamas, Belize, Liberia, Panama, Cyprus, and the Marshall Islands. Garvey notes: ‘Two hours is obviously a period of time grossly inadequate to assess the credibility of a request for interdiction and the interests involved.’253 In these circumstances, the notification period has been described as ‘window-dressing’ for sovereign equality.254
A series of safeguards is incorporated into the bilateral ship-boarding agreements in relation to the boarding procedure. These include strict requirements that any use of force, as well as the conduct of each states’ personnel, be in conformity with international standards, as well as the applicable laws and policies of the parties.255 There is also specification that account is to be taken of safety of life at sea and of References(p. 189) the security of the ship and its cargo;256 that the commercial or legal interests of the flag state are not prejudiced; and that measures taken are environmentally sound, that the persons on board are afforded their rights and that the master has the opportunity to contact the ship’s owner, manager, or flag state at the earliest opportunity.257 It is further required that reasonable efforts be taken to avoid a suspect ship from being unduly detained or delayed.258 Unlike Article 110 of UNCLOS, there is no specific provision that the victims of an unlawful or unjustified boarding are entitled to compensation. However, there is provision that any claims arising from an operation or the actions of authorized personnel of the state party are to be resolved in accordance with domestic law, and in a manner consistent with international law.259 While there may be some quibbles as to the precise content of these safeguards, the various requirements are largely consistent with those found in other agreements authorizing interdiction.260 Their ultimate utility will of course depend on the facts arising and the respective bargaining powers of the parties in resolving any differences that may arise in the application of the bilateral treaties.
(c) Third states
These treaties are relevant for other states interested in enhancing their maritime security to the extent that they provide an opening for third states to exercise the right of visit on the high seas, and as a possible model for other states to enter into their own bilateral agreements with relevant states.
The bilateral agreements of their nature are intended to bind only the states party to these treaties. Consistently with the law of treaties, the bilateral agreements do not create rights or duties for third states.261 However, the agreement with Liberia does include a specific provision whereby Liberia agrees to extend all rights concerning suspect vessels claiming its nationality to third states as it may deem appropriate.262 In this instance, there is the possibility of these bilateral agreements conferring rights on a third state but some discretion is still exercised by Liberia, as it is entitled to determine if the extension of the agreement is appropriate or not.263 The agreements with Panama, Mongolia, and the Marshall Islands have comparable provisions.264
References(p. 190) There may be reasons for the United States seeking a broader application of these agreements given that it may not have the necessary vessels to undertake the boarding and inspection in the relevant location. In this situation, the United States may seek permission from the flag state to permit a third state to conduct the boarding in its stead. A scenario may emerge where a third state has particular suspicions of a vessel and has its own warships or other government vessels in the vicinity with the ability to carry out a boarding. While there is no formal requirement for Croatia, Cyprus, the Bahamas, or Belize to permit such action under their bilateral agreements, as a matter of comity, permission may well be granted in any given instance. Such agreement may be more forthcoming when the requirements for conducting a boarding, including the array of safeguards, have already been articulated.265 Obviously, there is no guarantee of consent and this third state is otherwise required to revert to the strictures of the traditional legal framework, which preserves the exclusive rights of the flag state in these instances.
Other states may seek to conclude comparable bilateral treaties with the major ship registry states. The US-initiated agreements may thereby serve as a model for other bilateral treaties. However, it must be noted that when placed in the multilateral setting of negotiations for the 2005 SUA Protocol, the United States was unable to implement a comparable system of implied notice.266 This multilateral precedent, coupled with the possible lesser political power of a third state, may mean that another state will not achieve the same results in modifying the exclusivity of flag state authority as has been the case for the United States in formulating bilateral agreements. The bilateral agreements provide an interesting point of comparison to the 2005 SUA Protocol, precisely because the latter agreement reflects a multilateral approach. The interests of a greater number of states in enhancing maritime security may therefore be discerned from this process, including the willingness to impinge on the exclusivity of flag state jurisdiction in the exercise of the freedom of navigation. Greater advances could clearly be achieved on a bilateral basis than was possible on a multilateral basis, despite what should be a common interest in combating terrorism and WMD proliferation.
The adoption of the 2005 SUA Protocol marks an important advance in devising a lawful means for the exercise of the right of visit against a foreign flagged vessel on the high seas in response to concerns regarding terrorism and the proliferation of WMD and related materials. The existence of this procedure coupled with the expanded range of offenses addressed by the 2005 SUA Protocol will be a significant addition to counter-terrorism efforts, provided it attracts a large enough cohort of states parties. The possibility also exists that the United States may provide incentives to states parties to agree to the ‘opt-in’ consent methods so as to References(p. 191) strengthen the position of the state wishing to board the foreign vessel.267 There are, however, a number of constraints within the 2005 SUA Protocol that may well hinder its effectiveness.
First, even though it was adopted in 2005, the SUA Protocol has only recently achieved the necessary number of ratifications to enter into force.268 This slow ratification remains the case despite the adoption of Security Council Resolution 1373 and subsequent work of the Council’s Counter-Terrorism Committee leading to a marked improvement in the adherence of states to a range of counterterrorism treaties. By contrast, over 150 states are parties to the 1988 SUA Convention.269 Without the necessary political will, the effectiveness of this new regime will be moribund.
Second, the limits of the 2005 SUA Protocol, notably in terms of retaining the emphasis on express consent of a flag state for boarding, the risk of lost opportunity due to flag state delay in authorization and the possibility of obstructive conditions in conducting a boarding, may undercut its utility, even if it does ultimately gain sufficient adherence among relevant states. These weaknesses exist because of what appears to amount to undue deference being accorded to the traditional paradigm emphasizing freedom of navigation and exclusive jurisdiction of flag states on the high seas. Given that all states share a mutual interest in preventing and suppressing terrorist acts against international shipping such regard is no longer entirely appropriate. Jesus has confirmed this view:
The possible acceptance of jurisdiction of any state party to police ships suspected of being involved with terrorist acts on the high seas areas of the ocean would be another encroachment on the state’s sovereignty or exclusive jurisdiction over ships flying their flag. However, it would be a legitimate encroachment to the extent that it would be done for a good purpose, benefiting all states.270
With less deference accorded to flag state control, states may have been willing to create a basis of consent for ship-boarding by virtue of the treaty (comparable to the procedure agreed on a bilateral basis with the United States). Even if this consent would not be accorded, the ‘opt-out’ form of tacit consent may have been preferable to the ‘opt-in’ consent procedure included in the agreement. Less weight on exclusive flag state control may have further resulted in the removal of a clause permitting the flag state to impose conditions on the boarding, additional to the References(p. 192) safeguards already included in the instrument, or may have at least anticipated mutually agreed conditions. Other possible adjustments to the 2005 SUA Protocol, if there had been less deference to flag state control, would have anticipated enforcement jurisdiction being exercised by the boarding state consequent to the common interest of all states parties in preventing and suppressing these crimes, as well as a reconsideration of the range of safeguards included for flag states specifically.
In light of these shortcomings, it is helpful that there are several provisions within Article 8bis that recognize the existence and ongoing validity of other regimes for the boarding of ships. For example, a paragraph was included to reflect the customary law rules enshrined in Article 110 of UNCLOS in relation to the right to board and inspect a vessel if the ship is without nationality or may be assimilated to a ship without nationality.271 The 2005 SUA Protocol is not intended to apply or limit boardings that are based on the right of visit, the rendering of assistance to persons, ships and property in distress or peril, or an authorization from the flag state to take law enforcement or other action.272 This latter exclusion allows for the possibility that a requesting state may reach agreement with the flag state not to follow the strict contours of Article 8bis of the 2005 SUA Protocol but proceed on an alternative basis of consent. This provision thereby protects the bilateral ship-boarding agreements pursued by the United States.
Article 8bis is also accorded the character of being a framework for operations between states parties, as paragraph 13 anticipates that states parties ‘may conclude agreements or arrangements between them to facilitate law enforcement operations carried out in accordance with this article’. In view of the increased scope of Article 3, and particularly the references to the transporting of nuclear, chemical and biological weapons, it is possible to interpret this provision as providing some allowance for the existence of the PSI. It further enables the United States to maintain its bilateral ship-boarding agreements without modification in view of the more flag-state-oriented provisions of the 2005 SUA Protocol.
The 2005 SUA Protocol is an important addition to the legal framework to enhance maritime security, as it enables ship-boarding for a range of terrorism and proliferation offences and so addresses concerns that could not otherwise be addressed through the bilateral ship-boarding agreements (or the PSI, as will next be discussed). There are clearly gaps in the way it will operate, though, and it is important to recall that it is merely another tool in the armory to promote maritime security. It may have helped tighten the net a bit more, but as another layer on the traditional body of the law of the sea, it has to be understood against this background, and this factor demonstrates a more limited improvement than may have otherwise been the case.
References(p. 193) F. Proliferation Security Initiative
The Proliferation Security Initiative (PSI) was spearheaded by the United States in 2003 and is concerned with the shipment of WMD and related material through all ocean areas. The PSI is a political agreement between states whereby commitments are given to take steps within existing legal structures to prevent the movement of WMD and related materials between states and non-state actors of proliferation concern.273 These commitments are set out in a Statement of Interdiction Principles. The intention of the participants is not to create legally binding commitments,274 but instead, the Statement of Interdiction Principles calls on states to ‘take specific actions in support of interdiction … to the extent their national legal authorities permit and consistent with their obligations under international law and frameworks’.275 The extent the requirements of the PSI are consistent with existing international law, and the potential of the PSI to reshape international law in order to promote maritime security, have been the cause of some concern and are addressed in this section.276
From a policy perspective, the PSI has been described as ‘a multilateral intelligence- sharing project incorporating cooperative actions and coordinated training exercises to improve the odds of interdicting the transfer of weapons of mass destruction’.277 An important feature of the PSI is its nature as a political and cooperative regime, which facilitates coordination between the states concerned and allows for the better flow of information and interaction at an operational level between the participants. As such, it is a deviation from other, more traditional, (p. 194) institutional means to meet non-proliferation goals.278 Consistent with this new multilateralism model,279 the PSI has been continuously characterized as ‘an activity, not organization’, as a ‘collection of interdiction partnerships’.280 This disavowal of international institutions in the formulation and operation of the PSI has led Garvey to claim that ‘the PSI is a rejection of international organisation as we have known it’.281 The United States argues that by virtue of being a partnership/ activity, as opposed to a formal treaty-based organization, the PSI has the flexibility for timely action when international standards have been violated.282 In this regard, the PSI creates a framework for states to cooperate when necessary in dealing with shipments of WMD and related materials, rather than a formal structure requiring specific procedures or consensus gathering.283
The reasons for establishing the PSI as ‘an activity’ were largely related to perceived needs to address proliferation concerns as rapidly as possible (that is, without waiting for the laborious negotiation process required in multilateral institutions to run their course),284 and to redress deficiencies in the existing legal structures. With respect to the latter, the incident referred to most commonly as the impetus for the PSI was the interdiction of the So San, a Cambodian vessel carrying Scud missiles from North Korea to Yemen.285 The Spanish Navy had doubts about the nationality of the vessel and so boarded for the purposes of checking the (p. 195) registration.286 The boarding party observed sealed containers that were not listed on the cargo manifest, and opened them to find the Scud missiles and associated material.287 The So San was ultimately released to continue to Yemen, affirming that there was no clear legal authority to seize these weapons, nor was Yemen prohibited from taking delivery of such weapons from North Korea.288 Although this incident is attributed as a catalyst for the development of the PSI, the positioning of the PSI within existing national legal authorities and international law has meant that the events like the So San could not be handled any differently. In one respect the outcome of the So San incident would be no different under the PSI as the shipment of scud missiles to Yemen is not prohibited under international law (the legality would only be affected if there was a Security Council resolution establishing sanctions on the sale or supply of weapons to a particular state). In another respect, and as will be discussed below, no new basis for conducting a right of visit has been established by virtue of the PSI under international law.
To understand how the PSI fits within and influences the framework of the law of the sea, this section first considers which states are involved and which states and non-state actors are otherwise affected by the PSI. The consistency of the PSI with existing international law is then examined and provides the background for assessing to what extent the PSI has the potential to transform legal principles in this area. The PSI thus reflects how states may act to respond collectively to particular maritime security threats, and the difficulties faced when the interest in responding to a maritime security threat is not widely enough shared.
The PSI was initially established among 11 core members, subsequently expanding to 15 core members.289 Importantly, the PSI expanded to include Russia,290 Japan, and Singapore. The addition of these states as core participants was important for the political support afforded (particularly geopolitically in respect of Japan), as well as being noteworthy for their geographic significance (especially (p. 196) Singapore). In addition to the core members, the United States further reported that the PSI had received the support of another 60 states.291 States were ‘asked to participate based on their ability and willingness to contribute’.292 In August 2005, the core group was dismantled, primarily because it was not needed once the basic principles of interdiction had been established.293
The Statement of Interdiction Principles further ‘seeks cooperation’ from states whose vessels or territory may be used for proliferation purposes.294 The level of participation required has been vividly described by Joseph:
One can liken PSI and its day-to-day execution to that of a deputized posse: the United States and a group of other like-minded states, using existing legal powers, have organized to hunt down illicit shipments of dangerous weapons. On any particular day, some members of that posse may choose not to ride out.295
The fact that the PSI involves a self-designated elite group of states limits the likelihood that its objectives will be achieved when taking into account that the overall strategy requires global participation to achieve full effectiveness.296
One state of significance remaining outside the PSI is China. China has the world’s third-largest merchant fleet and is reported to have a long record as a proliferator of nuclear weapons technology and missile systems.297 China has been opposed to the PSI because of its concerns that it will operate in violation of international law.298 Given that North Korea is an obvious target of the PSI, China’s involvement is critical not only because of its political influence, but also because it controls some of the sea lanes leading to North Korea.299 However, (p. 197) China has maintained that the best way to curtail proliferation is through dialogue, and not force.300
The PSI is intended to target certain states and non-state actors. The states and entities targeted are those engaged in proliferation either through efforts to develop, acquire or transfer WMD and their related material.301 There has not been any indication, however, as to what evidence is necessary for a state or person to be targeted or how targets will be designated.302
The United States has sometimes referred to North Korea, Iran, and Syria as states of proliferation concern.303 Former US Under-Secretary of State Bolton stated that Israel, India, and Pakistan will not be targets as these states possess WMD ‘legitimately’,304 and do not pose the most immediate threat to PSI participants.305 This uneven approach has been criticized for not only provoking political tension (particularly for Japan as it does not wish to alienate North Korea), but also defying the fundamental principle of sovereign equality, which entitles all states to the same rights and protections under international law.306 By contrast, Joseph has defended the selectivity as follows: ‘Because it is a voluntary activity and is not governed by treaty mandates, so long as PSI’s member states operate within the bounds of existing domestic and international law, they are free to engage in selective enforcement in line with their preferences and resources.’307 North Korea strenuously objected to the PSI, demanding that the Bush administration explicitly renounce any intent to confront North Korea economically or militarily.308 Becker considers that if North Korea is disproportionately targeted by PSI operations, it is more likely that the actions could be construed as unlawful acts of military aggression.309 North Korea has also asserted that any interdiction of its vessels, or a blockade, would be viewed as an act of war, and thereby abrogate the Armistice Agreement that ended the Korean War.310
As the Statement of Interdiction Principles intends participants to take action ‘to the extent their national legal authorities permit and consistent with their (p. 198) obligations under international law and frameworks’,311 the PSI is immediately constrained by the traditional requirements of exclusive flag state control and the freedom of the high seas. However, Valencia has argued that the PSI has proven controversial, particularly among Asian states, ‘because it stretches if not breaks the fundaments and limits of existing international law, operated outside the United Nations system, and has limited effectiveness’.312 In rebuttal, Joseph responds to critics in arguing: ‘What all of these criticisms share is a certain paranoia based more on how PSI may evolve rather than a realistic interpretation of the present-day PSI.’313 Winner is more direct: ‘the initiative was clearly conceived to operate within existing legal bounds’.314 Nonetheless, the ‘paranoia’ is not completely without merit when regard is had to Principle 3 of the Interdiction Principles, which intends that the participant states will take action to ‘strengthen when necessary relevant international law and frameworks in appropriate ways’.315 The consistency of the PSI, as articulated in the Statement of Interdiction Principles, with existing international law in relation to rights over ports, internal waters, territorial sea, and contiguous zones, as well as in relation to interdictions beyond these maritime zones, is examined immediately below. The concerns reflect challenges to be faced by states when taking steps to enhance maritime security.
In recognition of the greater authority that states have over their ports, internal waters, and territorial seas, the participant states are committed to taking appropriate action in respect of vessels that are reasonably suspected of carrying cargos of proliferation concern.316 These actions may involve stopping and/or searching vessels in internal waters, territorial seas, or contiguous zones (where states have declared the latter), or enforcing conditions on vessels that enter or leave ports, internal waters, or territorial seas that require the boarding, searching and seizure of cargos of proliferation concern.317
The Statement of Interdiction Principles consistently refers to actions being taken when there is a reasonable suspicion that a particular vessel is carrying cargos of proliferation concern. The use of a flexible standard, such as ‘reasonable suspicion’, is intended to enhance the deterrent value of the PSI.318 It is not completely novel, but is comparable to the standard imposed in relation to (p. 199) permissible interdictions where there are reasonable grounds for suspecting a ship is engaged in the slave trade, piracy or unauthorized broadcasting.319
Obviously, the very fact that inspections may be carried out with greater ease when a vessel is in port than conducting an interdiction at sea means that the agreement of a port state to address proliferation concerns consistent with PSI commitments is important. With the adoption of the ISPS Code in 2004 and the commencement of the CSI in 2002, these efforts enhanced aspects of the PSI addressing commitments by port states. As discussed previously,320 ports are essentially assimilated to the land territory of a state and as such, states may control what vessels enter their ports and under what conditions. A similar situation exists in respect of internal waters and PSI participant states have committed to stopping and searching vessels reasonably suspected of carrying cargos of proliferation concern in this maritime area, as well.
The restrictions that are imposed on the port state’s application of its laws to vessels in port only relate to the inapplicability of local labour laws and situations when a vessel has entered port as it is in distress.321 These limitations on port state control are clearly inapplicable in relation to activities associated with the PSI.322 If states have the appropriate national legislation in place, authority will exist to board, search, and even seize cargo that is prohibited under national law.323 A more relevant limitation may be found in sovereign immunity inasmuch as a port state will not have authority to inspect any warships and government vessels used only for non-commercial purposes.324 This immunity has been said to ‘represent the greatest challenge posed by the PSI to the law of the sea’.325 One of the key difficulties here is that the participant states in the PSI would not want to create an exception to the complete immunity of warships and non-commercial government vessels for the purposes of WMD inspections, as a target state may then similarly rely on this exception to interfere with the warships of a PSI participant state.326
Becker has observed that PSI participants could argue for a greater role for port states in redressing concerns about the proliferation ofWMD on the basis that there has already been some authority accorded to port states in situations where the flag state has failed to act (either because of an inability or unwillingness to do so).327 However, he critiques this viewpoint in noting that such authority has only been accorded to port states precisely in relation to the matters over which flag states have responsibility, and not in relation to matters outside the duties of flag References(p. 200) states enumerated in Article 94.328 Following themodel of port state enforcement for vessel pollution on the high seas, the port state could seek to exercise jurisdiction over vessels suspected of trafficking WMD and related material on the high seas. It could be argued that the lack of flag state regulation over the cargoes carried would warrant the port state stepping into the gap and the exercise of authority to address this problem. Such an extension of law enforcement powers has not yet been recognized under international law but a combination of national criminal legislation and obligations imposed under Security Council Resolution 1373, discussed in more detail in Chapter 6,329 should be sufficient to address the problem.
Principle 4(d) of the Statement of Interdiction Principles commits participants to taking appropriate action, including stopping and searching vessels in the participant states’ territorial seas.330 While coastal states have sovereignty over their territorial seas,331 coastal state control over foreign vessels in this maritime zone is limited by the right of those vessels to innocent passage.332 More particularly, there is no authority to disrupt the passage of foreign vessels through a state’s territorial sea unless the passage is prejudicial to the peace, good order or security of the coastal state.333 Commentators have raised doubts that the mere passage of WMD through the territorial seas is a violation of the right of innocent passage.334 Garvey, for example, argues that the right of innocent passage ‘is not offended by a shipment of WMD material that does not constitute a threat to the coastal state, which of course would describe the typical situation, in that the threat presented by WMD material is determined by the intended use at the point of destination, not transit’.335 Ronzitti similarly argues that when a vessel is arriving from the high seas and is traversing the territorial sea of a coastal state, without intending to stop at any port in that state, this vessel would not be violation of the right of innocent passage, even if it aims to engage in terrorist activities in a third state, since Article 19(2) (p. 201) requires that the acts prejudicial to the coastal state occur in its territorial sea.336 It should further be noted in this regard that Article 23 of UNCLOS expressly gives ships carrying nuclear weapons the right of innocent passage albeit subject to precautionary measures established by international agreement.
However, Churchill and Lowe take the position that the violation of the right of innocent passage does not require a specific act or violation of any law, including the laws of the coastal state.337 This position is not rebutted by the listing of activities in Article 19(2).338 On this basis, it would not be necessary, as Valencia argues, for the coastal state to have legislation in place criminalizing WMD proliferation or being able to demonstrate that the vessel is threatening its security because of the presence on board ofWMD destined for persons intending to undertake terrorist activities in areas under its jurisdiction.339
Joyner does not believe it would be difficult to overcome the right of innocent passage to permit coastal state action against a foreign vessel, as it is the characterization of the passage that is important rather than the commission of any particular act.340 Under all the circumstances currently associated with the proliferation of WMD, Joyner believes that a coastal state would have a basis to overcome the right of innocent passage for the purposes of interdiction.341 If regard to the listing of activities in Article 19(2) was necessary, reference to any threat of force in Article 19(2)(a) could be relied on, as it is not limited to threats against the coastal state, but may include threats to other states.342 When concerns regarding the proliferation of WMD and related material to non-state actors is coupled with the discretion accorded to the coastal state to determine what passage is prejudicial to its peace, good order and security, the preferred interpretation should be one that favours the entitlement of the coastal state to take steps against a vessel violating the right of innocent passage.
A question then arises as to what are ‘the necessary steps’ a coastal state may take to prevent passage which is not innocent. Interdiction and the exercise of criminal jurisdiction will only be allowed ‘if the crime is of the kind to disturb the peace of the country’.343 It will again be important for the coastal state to have the necessary legislation in place that would allow for arrest and detention of vessels that have passed into the territorial sea from its internal waters.344 If the vessel has not been in the internal waters of the coastal state, the coastal state may not exercise jurisdiction (p. 202) in connection with any crime outside its territorial sea.345 However, national legislation that criminalizes the illicit passage of WMD and related material would overcome this particular restriction. The legal tools are therefore available for states that wish to police their territorial seas to prevent the proliferation of WMD and related materials to non-state actors.
As the coastal state may exercise jurisdiction to prevent and punish infringement of its customs, fiscal, immigration, or sanitary laws within its territory or territorial sea,346 participant states could only operate within existing law if the passage of WMD and associated materials through this zone could be characterized as a violation of customs laws.347 However, if the vessel is merely transiting the contiguous zone of a participant state without stopping in its ports or entering its territorial sea, there would be no justification for the interdiction of the vessel for customs law violations.
When there is reasonable suspicion that particular vessels are of proliferation concern, participant states are committed to taking action to board and search those vessels flying their own flag when those vessels are either in their territorial seas or internal waters, or when outside the territorial waters of another state.348 Even where vessels are flagged to the participant states, then these states commit to giving serious consideration as to whether other states should be permitted to board and search those vessels in pursuit of the PSI objectives.349 These commitments are consistent with traditional principles reflecting exclusive flag state control over vessels outside their territorial seas—both in terms of permitting the flag state to exercise jurisdiction over its own vessels and in acknowledging the need for consent of the flag state to stop one of its vessels. Moreover, the Statement of Interdiction Principles does not seek to add any new right of visit to those recognized under Article 110 of UNCLOS. As the Statement of Interdiction Principles are not legally binding, they cannot constitute a ‘power conferred by treaty’ under Article 110 permitting an additional basis for the exercise of enforcement jurisdiction on the high seas.
An oft-cited example of the success of the PSI is the interdiction of the BBC China, which was flagged to Antigua and Barbuda, but German-owned. British and US intelligence had learned that the ship was carrying thousands of gas centrifuge components to Libya and requested that Germany, a PSI participant, take steps to check the cargo. Germany secured the owner of the vessel’s consent to divert it to (p. 203) an Italian port where the cargo of centrifuges could be confirmed. The discovery has been attributed to contributing to Libya’s decision to denounce its WMD programme.350 It does not appear that the consent of Antigua and Barbuda was obtained, but the persuasive involvement of Germany in dealing with the German owner permitted the change in route and allowed for inspection in Italy.
The Statement of Interdiction Principles does not purport to set out any right of participant states to interdict foreign flagged vessels on the high seas, unless the consent of the flag state is obtained.351 The absence of any such claim underlines that the PSI is prima facie consistent with established international law. The difficulty with strict adherence to exclusive flag state control in the proliferation context is that it remains unlikely that vessels flagged to states of proliferation concern will agree to their ships being boarded on the high seas. As Lehrman correctly notes:
Under the mare liberum principle, the interdiction of a flag vessel of a foreign state is generally considered to be the prerogative of the flag state in question, not of third-party states patrolling the high seas. Thus, freedom of the seas is in tension with the perceived need of third-party states to exercise their power over interdiction.352
It has been suggested that to avoid some of these strictures, the United States could use a ‘broken tail-light’ approach — that is, a vessel may be lawfully stopped for one reason, but this may offer the opportunity to discover that it is actually involved in an activity of much greater concern to the PSI participants.353 In doing so, the prima facie consistency of the PSI with existing international law, as drawn from the Statement of Interdiction Principles, is maintained.
The law-making, or normative, nature of the PSI requires consideration not only in terms of its consistency with existing international law, but also to what extent it builds on that law and whether it has the necessary characteristics to constitute groundwork for, or even the crystallization of, new principles of international law. (p. 204) The Statement of Interdiction Principles is prefaced by reference to various international instruments and statements by international bodies on which the PSI is intended to build. In particular, the PSI is said to be ‘a step in the implementation of the UN Security Council Presidential Statement of January 1992’, and is also consistent with statements of the G8 and the European Union.354 The 1992 Security Council Presidential Statement notes that the proliferation of WMD constitutes a threat to international peace and security, but only that the ‘members of the Council commit themselves to working to prevent the spread of technology related to the research for or the production of WMD and to take appropriate action to that end’.355 In respect of the general membership of the United Nations, the Statement merely ‘underline[s] the need … to fulfill … obligations in relation to arms control and disarmament; to prevent the proliferation in all its aspects of all weapons of mass destruction … ’.356 Presidential statements reflect informal consultations between the President of the Security Council and its members and are not intended to reflect a decision of the Council as a whole.357 The precise status of these statements is unclear, as the Council has not defined their scope, content or nature in its rules of procedure or elsewhere.358
The most controversial aspect of the PSI has been whether it is contributing to the development of a new right of visit against foreign flagged vessels on the high seas when there are reasonable suspicions that the vessel is of proliferation concern.359 Subsequent to the establishment of the PSI, the United States and the United Kingdom sought a resolution from the Security Council that would authorize states to stop, board, and inspect a vessel suspected of carrying WMD and related material.360 Valencia characterizes this effort as the United States effectively wanting to legitimize the PSI under international law but leave the enforcement aspects of interdiction activities outside of the purview of the United Nations.361 He further considers that the very fact that the United States sought a resolution from the Security Council in relation to interdiction of vessels carrying WMD was viewed as a tacit admission that authority did not otherwise exist under international law to carry out the interdictions on the high seas against foreign flagged vessels.362
(p. 205) The effort ultimately proved unsuccessful, as Russia and China were both opposed to an express authorization for interdictions that would legally validate the PSI.363 Resolution 1540 instead criminalizes certain proliferation activity of non-state actors and provides a basis for states to adopt legislation controlling and outlawing this activity.364 The prescriptive jurisdiction accorded to states under this resolution is limited to activities of non-state actors, as the resolution does not encompass transfers between states.365 There are no sanctions imposed on states for any failure to comply with the resolution, but a committee was established to monitor its implementation.366
In assessing the effect of the PSI on customary international law, Perry has argued that if the PSI is to operate in such a way to achieve its goals and in line with the views of its architects, there is potential for actions taken pursuant to the PSI to influence the development of the law of the sea in this area.367 Former National Security Adviser Condaleezza Rice signalled the intention of the United States to change the current international law regime: ‘While all actions will be taken consistent with existing national and international legal authorities, we are also seeking ways to expand those authorities.’368 A similar sentiment was reportedly expressed by Australia’s former Minister for Foreign Affairs, who supported ‘changing the law permitting free navigation on the high seas in order to stop North Korea’s shipping of missiles, nuclear materials, and drugs to allies or customers.’369 Such statements reinforce concerns that more powerful states are seeking to change international law through state practice and are the ones most likely to claim that a new rule of customary international law has been established after whatever period of time they determine.370 However, the extent that the PSI is likely to achieve changes in international law appears to be limited by the very nature of the activity.
(p. 206) In the first instance, information as to what interdictions have actually taken place under the rubric of the PSI is scarce,371 and the secrecy surrounding the PSI tends to diminish the likelihood that clarity and acceptance of new norms will be established. Former US Under-Secretary of State Bolton commented that the reason for not publicizing the interdictions was to ensure the ongoing effectiveness of the programme.372 Information on actual interdictions has been restricted on the basis that the details often involve sensitive intelligence matters.373 It had at least been reported that up to 9 June 2005, the United States had cooperated with other PSI participants on what were described as 11 ‘successful’ occasions, including the prevention of the transshipment of material and equipment bound for ballistic missile programs in countries of concern, including Iran.374 Valencia posits that the reasons for such secrecy associated with the interdictions may not only be to protect intelligence sources and methods, but also to hide any violations of international law and to avoid negative publicity towards the PSI.375 In these circumstances, the absence of information about the precise operation, and consequent interpretation or application of the Statement of Interdiction Principles tends to deny the potential for existing laws to be altered.
Second, given the ambiguity inherent in so many aspects of the PSI, the question inevitably arises as to how this ambiguity should be overcome, and what mechanisms exist to provide such elucidation. It would seem that ‘determinations would be made either unilaterally or in consultation with a small number of other PSI participants and on no objective international legal basis whatsoever’.376 The ambiguity associated with the PSI may allow for power and influence to play a greater role in any given situation so that ‘in a diplomatic game of chicken, militarily strong states will tend to defeat militarily inferior states when conditions of uncertainty obtain’.377 From a political standpoint, the lack of clarity associated with many aspects of the PSI may work to the advantage of the United States in achieving its security goals. While the actions of politically powerful states no doubt influence the development of international law,378 there is still a need for some (p. 207) determinacy in the rules to be created.379 Garvey considers that the very absence of the means to articulate substantive and procedural standards within an organizational structure impedes the articulation of new normative standards for interdictions on the high seas.380 Without the formality of international organization, there is no mechanism to devise norms of greater specificity.381 International organization is important as it allows ‘participant states the opportunity for critique and a role in fashioning the action involved, endorsement may be secured that otherwise would not be available’.382
Third, there has been some concern expressed that the PSI as a political commitment is binding on governments, rather than states, and so any change in government in a PSI participant state may result in differing levels of commitment to the PSI.383 The changeable level of support is reinforced by the nature of the PSI as an activity, rather than a formal international organization and the posse-like level of participation, as characterized by Joseph.384 PSI participant states are not considered bound by the commitments set forth in the Statement of Interdiction Principles and face no legal consequences (potentially only political consequences) if they do not adhere to those principles. These features affirm the political nature of the PSI, rather than supporting any move towards the creation of a new legal regime or principles.
Finally, the PSI participants may not actually wish new norms permitting interdictions of foreign flagged vessels of proliferation concern on the high seas as it may impinge on the rights of their own vessels to the freedom of navigation. Byers has emphasized the United States’ ongoing interest in maintaining exclusive flag state jurisdiction on the high seas for both military and economic reasons.385 Moreover, the PSI participants will likely prefer to respect the sovereign immunity of warships and government vessels employed on non-commercial services, as they may not wish to provoke reciprocal treatment of their warships and government vessels.
The establishment of the PSI prompted much concern over its consistency with existing principles of international law. Certainly these concerns appeared warranted given the perception that high seas interdictions of foreign flagged vessels would be involved, the legal ambiguities arising with the shipment of dual-use materials and the room for differing interpretations as to whether the transport of References(p. 208) WMD and related material through the territorial sea would be in violation of the right of innocent passage. States not involved in the PSI could rightly be concerned that special interests were being promoted over the common interest in the freedom of navigation. Nonetheless, rights of interdiction outside the territorial sea, as set out in the Statement of Interdiction Principles, were consistent with existing rules of international law, but this legal alignment tended to undermine the very purposes of the PSI as a result.
Ultimately, the primary significance of the PSI has been twofold. First, it has allowed for greater coordination between like-minded states on an operational level and ensured that there are improved channels of communication and consistency of approach in addressing concerns relating to certain shipments of WMD and related material.386 Second, the PSI signalled that there were inadequacies in the existing international legal structures and may consequently be viewed as a catalyst for developments in treaty law on a bilateral and multilateral basis.387
The common interest in preventing acts of maritime terrorism and the proliferation of nuclear weapons is manifest. Yet, the new legal regimes developed for the purposes of meeting concerns about global terrorism and proliferation of WMD and related materials have a range of shortcomings. Obviously any new treaty designed to overcome limitations on law enforcement powers will need to have the widest possible number of states parties in order to be effective. It is quite likely that the states of greatest proliferation concern for the United States and its allies— such as North Korea, Iran, and Syria—are unlikely to consent to these treaties. Involvement in certain political arrangements, such as the CSI or the PSI, may be more feasible inasmuch as soft commitments may be more easily obtained than consent to binding rules, but as these initiatives are being led by the United States, it is unrealistic to expect that cooperation from these so-called rogue states will be forthcoming. It is only in the context of modifying agreements that already bind these states of concern, such as amending the SOLAS Convention,388 that new measures have become binding on a significant number of states.
Given the limitations that continue to exist within the legal regimes created to respond to terrorism and proliferation at sea, other options may have to be considered by states seeking to address concerns about global terrorism and proliferation of WMD and related materials. A Security Council resolution could provide the necessary authority, as a Chapter VII resolution will over-ride other References(p. 209) treaty commitments.389 States may also seek to claim rights of interdiction and seizure of cargo on the basis of the right of self-defence. Reliance on the latter doctrine may be pertinent since the acquisition and use of WMD are most commonly associated with acts of aggression or with the defence of a state. The right of self-defence, the relevance of the law of naval warfare, and the use of the Security Council as alternative means to ensure maritime security are discussed in more detail in Chapter 6.
The normative framework to address threats of terrorism and proliferation of WMD and related material at sea requires further development. One difficulty in formulating rules for interdiction of WMD is that there is a distinction in normative regulation between these items, and, for example, drugs or unlawful radio broadcasting, or robbery. It is more common for states to have legislation or aspects of their criminal code that will address robbery and certain acts of violence at sea, as well as drug trafficking, whereas it is less so the case to have national legislation addressing WMD, particularly if states are not parties to the major WMD treaties or part of the informal groups dealing with export controls and the like. The actions of the Security Council under Resolutions 1373 and 1540 go some way in creating obligations for states to take the steps necessary to ensure that the legislative framework for addressing these crimes of international concern is put in place at the national level.
A further difficulty is the ongoing limitation posed by the doctrine of sovereign immunity.390 The possible use of vessels entitled to sovereign immunity to ship WMD and related materials to non-state actors or other states remains unchallenged in any of the legal frameworks developed in response to concerns regarding maritime terrorism and proliferation at sea. The PSI, bilateral ship-boarding agreements, and the 2005 SUA Protocol, make no attempt to change this principle. Sovereign immunity of vessels has been subject to much less penetration than the exclusive jurisdiction of the flag state. It appears that it is primarily in relation to respect for coastal state rights over economic interests in the EEZ,391 and with respect to the protection and preservation of the marine environment that there has been some acknowledgement of these sovereign immune vessels being subject to any external regulation.392 There has been no indication that sovereign immunity of vessels will be challenged in any way for the purposes of improving maritime security. While any change in this regard seems extremely unlikely at the present time, this view is not intended to suggest that the position is forever immutable.
Byers suggests that states may simply opt for violating international law in the face of concerns about WMD proliferation or terrorist activity at sea.393 He argues:
References(p. 210) In the truly exceptional situation where there is a strongly felt compulsion to act, consent from the relevant sovereign state cannot be obtained, and the Security Council is not prepared to authorize action, states may choose to breach the rules without advancing strained and potentially destabilizing legal justifications. By doing so, they allow their action to be assessed subsequently, not in terms of the law, but in terms of its political and moral legitimacy, with a view to mitigating their responsibility rather than exculpating themselves.394
In these situations, states may seek to rely on circumstances precluding the wrongfulness of their acts, such as necessity or self-defence. The plausibility of these justifications will depend on the facts of each incident in question.
Wide acceptance of a right of visit to thwart terrorism and the proliferation of WMD is desirable. Becker makes a strong point to this end:
The extension of non-exclusive jurisdiction, even to ships on the high seas, for the limited purpose of WMD counter-proliferation potentially meets the test for a new set of rules… . Because the threat is open-ended in duration, decentralized in organization, and geographically disperse, old solutions may not be suitable. Furthermore, the WMD threat is overwhelming in a way that the other modes of disorder addressed by oceans policy— piracy, over-fishing, drug smuggling, and pollution—simply are not. Although those problems are serious, the impact of any one instance of over-fishing or drug smuggling has a marginal negative impact on world public order. The same could be said for some shipments ofWMDrelated materials; the final product of consequence could be many years and many more shipments away. But the risk of one successful attack, or the danger of certain states or nonstate actors even acquiring the capability to make credible threats, set the WMD threat apart from the other problems constituting the disorder of the oceans.395
In relation to maritime terrorism, Jesus has argued that rights of interdiction associated with piracy have not significantly damaged the prerogatives of flag states and so no equivalent threat should be perceived in exercising jurisdiction over terrorists.396
The controversy that has long surrounded the definition of terrorism and the available tools to address such acts indicates that an endorsement of universal jurisdiction for terrorists found at sea is unlikely. The 2005 SUA Protocol was one of the best opportunities available to states to take the necessary steps within a multilateral forum to establish and exercise jurisdiction over terrorist acts and prevent proliferation of WMD and related material to non-state actors, but the greater emphasis on protecting the freedom of navigation and exclusive jurisdiction of flag states hampered the creation of an instrument that would have served community interests in responding to these maritime security threats.
1 José Luis Jesus, ‘Protection of Foreign Ships against Piracy and Terrorism at Sea: Legal Aspects’ (2003) 18 IJMCL 363, 378; Malvina Halberstam, ‘Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety’ (1988) 82 AJIL 269, 273.
2 Guilfoyle disputes that this common interpretation is well-founded. See Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (CUP, Cambridge 2009) 33–42 (considering that the reference to ‘private ends’ is intended to emphasize the much broader notion that ‘the violence involved lacks state sanction or authority’).
3 Halberstam argued that universal jurisdiction should apply to terrorism: ‘Terrorists today, like pirates of old, are a threat to all states and no state is willing to assume responsibility for their acts. Since they do not confine their attacks to the vessels of a particular state, but attack vessels and nationals of many states indiscriminately, they are hostis humani generis in the truest sense. Since no state has accepted responsibility for their acts, there is no state against which claims for redress can be made.’ Halberstam, ‘Terrorism on the High Seas’ 289.
5 Christopher C. Joyner, ‘Suppression of Terrorism on the High Seas: the 1988 IMO Convention on the Safety of Maritime Navigation’ (1989) 19 Israel Yearbook on Human Rights 341, 348. Menefee defines maritime terrorism as ‘any illegal act directed against ships, their passengers, cargo or crew, or against sea ports with the intent of directly or indirectly influencing a government or group of individuals’. Samuel Pyeatt Menefee, ‘Terrorism at Sea: The Historical Development of an International Legal Response’ in Brian A.H. Parritt (ed), Violence at Sea (Paris, 1986) cited in Donna J. Nincic, ‘The Challenge of Maritime Terrorism: Threat Identification, WMD and Regime Response’ (2005) 28 Journal of Strategic Studies 619, 620. In crafting his definition, Joyner acknowledges that the definition of terrorism has traditionally been highly controversial under international law, and that legal definitions of terrorism have been ‘woefully unsatisfactory’. Ibid, 348. For a comprehensive analysis of this issue, see Ben Saul, Defining Terrorism in International Law (OUP, Oxford 2006).
8 Ibid, 8–10 (referring to attacks on the Israeli port of Ashod, and the Pakistani ports of Karachi and Gwadar).
12 Mark J. Valencia, The Proliferation Security Initiative: Making Waves in Asia (Routledge, Oxford 2005) 7. Lehrman has similarly noted: ‘Prevailing technological trends and the rapid diffusion of information and communications technologies have lowered the cost and complexity of researching, developing, procuring, assembling, and delivering WMD and their related materials and components. The exponential increase in price-performance ratios in the enabling components of information networks, semiconductors and fibre optics in particular, in turn fuels the rapid dissemination of information.’ Thomas D. Lehrman, ‘Enhancing the Proliferation Security Initiative: The Case for a Decentralized Nonproliferation Architecture’ (2004) 45 Virginia JIL 223, 227–8.
14 Described collectively in this book as ‘WMD and related materials’. The term ‘WMD, their delivery systems and related materials’ has been used in US practice, and is discussed further below. See text to nn 243–6 below.
16 Ibid. See also Craig H. Allen, ‘A Primer on the Nonproliferation Regime for Maritime Security Operations Forces’ (2007) 54 Naval Law Review 51, 55–6.
18 Ibid. Joyner subsequently notes that non-proliferation efforts have not traditionally posed problems under international law as these activities have largely been based on the consent of states. Ibid 545–6. Counter-proliferation efforts have proven more problematic since ‘fundamental aspects of their character, design, and purposes, are often much harder to square with international law’. Ibid 546. See further Jason D. Ellis, ‘The Best Defence: Counterproliferation and US National Policy’ (2003) 26 Washington Quarterly 115.
20 For details on the Achille Lauro incident, see Glen Plant, ‘The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation’ (1990) 39 ICLQ 27, 27–8; Brad J. Kieserman, ‘Preventing and Defeating Terrorism at Sea: Practical Considerations for Implementation of the Draft Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA)’ in Myron H. Nordquist, John Norton Moore and Kuen-chen Fu (eds), Recent Developments in the Law of the Sea and China (Martinus Nijhoff, Leiden 2006) 425, 425–6; Halberstam, ‘Terrorism on the High Seas’ 269–70.
23 As Halberstam notes, ‘its operative provisions deal not so much with the suppression of such acts, as with the apprehension, conviction and punishment of those who commit them.’ Halberstam, ‘Terrorism on the High Seas’, 292.
24 1988 SUA Protocol. Ronzitti described this protocol as a renvoi Protocol in that there is a renvoi to the relevant provisions of the 1988 SUA Convention, rather than reformulating the provisions within the protocol. Natalino Ronzitti, ‘The Prevention and Suppression of Terrorism Against Fixed Platforms on the Continental Shelf’ in Natalino Ronzitti (ed), Maritime Terrorism and International Law (Martinus Nijhoff, Dordrecht 1990) 91, 91. Within the definition of fixed platforms under the Protocol are artificial islands and installations or structures permanently attached to the sea-bed for the purpose of exploration and exploitation of resources or for other economic purposes. See also Chapter 3, Part G(3).
25 See Tullio Treves, ‘The Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation’ in Natalino Ronzitti (ed), Maritime Terrorism and International Law (Martinus Nijhoff, Dordrecht 1990) 69, 70–1; Joyner, ‘Suppression of Terrorism’ 345. A possible difficulty here is that no state is recognized as having priority in establishing jurisdiction.
26 1988 SUA Convention art 10. See also Joyner, ‘Suppression of Terrorism’ 345–6 (‘The cardinal purpose of the IMO Convention is to insure that persons who commit acts of unlawful violence that endanger safe navigation of ships are either tried in the State where they are found, or extradited to another State for prosecution’). Unlike more recent counter-terrorism treaties, there is no provision preventing a state from refusing to extradite on the basis of the political offence exception.
27 Treves, ‘The Rome Convention’ 71. Joyner also notes that the offences set forth in the 1988 SUA Convention are distinct from the traditional international crime of piracy. See Joyner, ‘Suppression of Terrorism’ 348. Jesus, however, is of the view that the 1998 SUA Convention ‘seems to apply to piracy or armed robbery against ships’. Jesus, ‘Protection of Foreign Ships’ 381.
30 1988 SUA Convention art 6. The scope of the offences in art 3 has more recently been relied on as an additional mechanism to exercise jurisdiction over pirates captured off Somalia. See UNSC Res 1846 (2 December 2008) UN Doc S/RES/1846, para 15; UNSC Res 1897 (30 November 2009) UN Doc S/RES/1897, para 14.
31 See Natalino Ronzitti, ‘The Law of the Sea and the Use of Force Against Terrorist Activities’ in Natalino Ronzitti (ed), Maritime Terrorism and International Law (Martinus Nijhoff, Dordrecht 1990) 1, 11.
33 See 1988 SUA Convention arts 13 and 14. Joyner notes, ‘these two provisions supply the only fiats directly relating to the suppression of unlawful acts against maritime navigation’. Joyner, ‘Suppression of Terrorism’ 363. The only other references to prevention in the 1988 SUA Convention are located in the preamble, and so are not strictly binding.
34 International Convention against the Taking of Hostages (1979) 1316 UNTS 205 [‘Hostages Convention’] art 4(1)(a) provides: ‘States shall cooperate in the prevention of the offences set forth … particularly by … taking all practicable measures to prevent preparations in their respective territories for the commission of these offences within or outside their territories including measures to prohibit in their territories illegal activities of persons, groups and organizations that encourage, instigate, organize or engage in the perpetration of acts of taking of hostages.’ The phrase beginning ‘included … ’ was deleted on the rationale that it did not add anything to the text.
39 Ibid 384.
42 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (1972) 1015 UNTS 163 [‘Biological Weapons Convention’].
43 NPT art IX(3) provides: ‘For the purposes of this Treaty, a nuclear-weapon State is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967’.
47 Ibid 518.
48 Becker, ‘The Shifting Public Order’ 138; ibid 139 (‘there appears to be a growing consensus within the international community that multilateral treaty instruments by themselves lack the necessary control intention to transform their prescriptions of legal norms into effective international law’).
51 Kaye has suggested that UN Security Council Resolution 1540, which was adopted under Chapter VII of the UN Charter and is therefore legally binding on all member states, provides a basis under international law for rendering unlawful the shipping of weapons in the circumstances contemplated by the PSI. Stuart Kaye, ‘Freedom of Navigation in a Post 9/11 World: Security and Creeping Jurisdiction’ in David Freestone, Richard Barnes and David M. Ong (eds), The Law of the Sea: Progress and Prospects (OUP, Oxford 2006) 347, 359. See text to nn 364–6 below.
52 Michael Beck, executive director of the Center for International Trade and Security, cited in Andrew Prosser and Herbert Scoville Jr, ‘The Proliferation Security Initiative in Perspective’ (16 June 2004) 5 <http://www.cdi.org/pdfs/psi.pdf>.
57 IMO Maritime Safety Committee, ‘Measures to Prevent Unlawful Acts Against Passengers and Crews on Board Ships’ (26 September 1986) IMO Doc MSC/Circ.443. See also Bryant, ‘Historical and Legal Aspects’ 4–5.
59 IMO Assembly ‘Review of measures and procedures to prevent acts of terrorism which threaten the security of passengers and crews and the safety of ships’ (19–30 November 2001) IMO Doc Res A.924(22), cited in Hesse, ‘Maritime Security’ 329.
60 Amendments to the Annex to the International Convention for the Safety of Life at Sea (SOLAS), 1974 ( ATS 22) contained in Resolutions 1, 2, 6 and 7 of the Conference of Contracting Governments and including the International Ship And Port Facility Security (ISPS) Code  ATS 29 [‘ISPS Code’].
64 IMO Maritime Safety Committee, ‘MSC Intersessional Working Group on Maritime Security: 9–13 September 2002’ (September 2002) 5 <http://www.imo.org/newsroom/mainframe.asp?topic_id=110&doc_id=2514>.
65 Hale, ‘ISPS Code’ 3. Further, vessels involved only on trade internally within a state are not subject to the ISPS Code, but rather would be subject to the laws of the state in which they operate. Ibid.
68 IMO, ‘Diplomatic Conference on Maritime Security: 9–13 December 2002’ (December 2002) <http://www.imo.org/newsroom/mainframe.asp?topic_id=110&doc_id=2515>.
70 John Ramage, ‘Creating a Security Culture—The Role of the Flag State’ (Speech at Lloyd’s 2nd Annual Maritime Security and Safety Summit, London, 18 February 2004) <http://www.register-iri.com/content/artspeeche/LloydsMaritimeSecuritySummit.cfm>.
76 IMO, ‘IMO adopts comprehensive maritime security measures’ <http://www.imo.org/newsroom/mainframe.asp?topic_id=583&doc_id=2689>.
79 IMO Maritime Safety Committee, ‘Guidance to Masters, Companies and Duly Authorized Officers on the Requirements Relating to the Submission of Security-Related Information Prior to the Entry of a Ship into Port’ (14 December 2004) IMO Doc MSC/Circ.1130.
81 See Natalie Klein, ‘Legal Implications of Australia’s Maritime Identification System’ (2006) 55 ICLQ 337, 339 (noting that 48 hours’ notice would be equivalent to a 1,008 nautical mile distance for a ship travelling at 21 knots).
82 It should further be noted that the very failure to provide the information requested is an example of clear grounds of non-compliance. IMO Maritime Safety Committee, ‘Guidance Relating to the Implementation of SOLAS Chapter XI-2 and the ISPS Code’ (7 June 2004) IMO Doc MSC/Circ.1111 [‘Guidance for ISPS Code’] 10 [3.7].
90 IMO, ‘FAQ on ISPS Code and Maritime Security’ <http://www.imo.org/Legal/mainframe.asp?topic_id=897>.
91 Hale, ‘ISPS Code’ 4. While costs vary considerably, estimates for the initial implementation of the ISPS Code ranged from USD20,000 to USD37,000 per vessel and annual costs of around USD 12,000. Ramage, ‘Creating a Security Culture’.
92 ‘Consternation over security’ Fairplay (Surrey) (3 April 2003) 23 (‘observers are almost certain that the July 1, 2004 deadline for compliance with the IMO’s maritime security code will not be met by everyone’). See also Regina Asariotis, ‘Implementation of the ISPS Code: An Overview of Recent Developments’ (2005) 11 Journal of International Maritime Law 266, 267–9 (referring to a range of concerns about ensuring timely compliance).
93 Frances Huggett, ‘ISPS—One year on’, Fairplay (Surrey) (22 September 2005) 21–2 (‘But despite the burdens now being placed on crew and security officers, the general consensus within the shipping industry and the IMO is that onboard security has been implemented effectively’).
95 Gregory W. Bowman, ‘Thinking Outside the Border: Homeland Security and the Forward Deployment of the U.S. Border’ (2007) 44 Houston Law Review 189, 197 citing Stephen E. Flynn, ‘The New Reality in Canada/US Relations: Reconciling Security and Economic Interests and the “Smart Border Declaration” ’ (2003) 29 Canada-US Law Journal 9, 14; US Consulate General, US Customs Container Security Initiative Forging Ahead (Press release, 12 August 2002).
96 Richardson has described the discovery of a suspected terrorist in a container in an Italian port, who was discovered when he was seeking to make larger air holes. His container was set up as living accommodation and maps of different airports were found within the container. See Michael Richardson, A Time Bomb for Global Trade: Maritime-Related Terrorism in an Age of Weapons of Mass Destruction (Institute of Southeast Asian Studies, Singapore 2004) 2.
97 ‘Historically, containers have been used as a vehicle for the smuggling of contraband and human beings into the United States. The extension of these illegal activities into the realm of terrorism is a plausible but unacceptable outcome.’ US Customs and Border Protection, ‘Container Security Initiative: 2006–2011 Strategic Plan’ (August 2006) [‘Container Security Initiative: 2006–2011 Strategic Plan’] 11 <http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/csi/csi_strategic_-plan.ctt/csi_strategic_plan.pdf>.
99 Mellor, ‘Missing the Boat’ 342–3. Keefer estimates that over 9 million containers enter US ports each year. Wendy J. Keefer, ‘Container Port Security: A Layered Defence Strategy to Protect the Homeland and the International Supply Chain’ (2007) 30 Campbell Law Review 139, 148.
101 Ibid 143 (citations omitted).
103 Ibid 203.
105 Presentation of Vessel Cargo Declaration to Customs Before Cargo is Laden Aboard Vessel at Foreign Port for Transport to the United States, 67 Fed. Reg. 66,318, 66,318–319, 66,331–332 (31 October 2002) (codified at 19 CFR para 4.7(b) (2006)).
108 Ibid 162.
109 See generally Shirley Scott, ‘Whose Security is it and How Much of it Do We Want? The US Influence on the International Law against Maritime Terrorism’ in Natalie Klein, Joanna Mossop and Donald R. Rothwell (eds), Maritime Security: International Law and Policy Perspectives from Australia and New Zealand (Routledge, Oxford 2010) 76.
111 US Customs and Border Protection, ‘CSI Fact Sheet’ (December 2007) [‘CSI Fact Sheet’] <http://www.cbp.gov/xp/cgov/trade/cargo_security/csi/ports_in_csi.xml>. Secondary sources commonly list a fourth element of smarter, tamper-proof containers. See, eg, Roach, ‘Container and Port Security’ 343.
124 Ibid 321–2.
125 ‘Political or legal realist arguments thus can be made that, despite all official pronouncements of multilateral support for these U.S.-initiated cargo security programs, the countries involved know there is a double standard at play, and that other countries are expected to fully honor their commitments even if the United States chooses not to do so. To the extent that this is the case, it could weaken the multilateral justification for these cargo security programs.’ Bowman, ‘Thinking Outside the Border’ 231.
127 Robert C. Beckman, ‘International Responses to Combat Maritime Terrorism’ in Victor V. Ramraj, Michael Hor and Kent Roach (eds), Global Anti-Terrorism Law and Policy (CUP, Cambridge 2005) 248, 255.
131 ‘Container Security Initiative: 2006–2011 Strategic Plan’ ii; Bowman, ‘Thinking Outside the Border’ 227; Rachael B. Bralliar, ‘Protecting US Ports with Layered Security Measures for Container Ships’ (2005) 185 Military Law Review 1, 36–7; Roach, ‘Container and Port Security’ 342.
133 World Customs Organization, ‘Framework of Standards to Secure and Facilitate Global Trade’ (June 2005) [‘WCO Framework’] <http://www.vam.hu/loadBinaryContent.do?binaryId=15833>.
140 Perhaps since the 1999 Protocol of Amendment to the International Convention the Simplification and Harmonization of Customs Procedures had not entered into force at the time the WCO Framework of Standards was adopted, there was a view that it would be impolitic to have two unenforceable treaties regarding customs and that a non-binding agreement would be a more, or equally, effective tool for the particular objectives of enhancing supply chain security.
141 See Chapter 3, Part B(2).
143 See Chapter 3, Part H(2).
150 2005 SUA Protocol art 4, adding art 3bis to the SUA Convention. Article 3bis provides: ‘A person commits an offence if that person unlawfully and intentionally, when the purpose of the act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act …’.
152 IMO Legal Committee, ‘Review of the Convention for the suppression of unlawful acts against the safety of maritime navigation, 1988, and its protocol of 1988 relating to fixed platforms located on the continental shelf (SUA Convention and Protocol) [“Review of SUA Convention and Protocol”]: Note by the Secretariat’ (13 March 2002) 84th Session IMO Doc LEG 84/6; IMO Legal Committee, ‘Review of SUA Convention and Protocol: Proposed modifications to update the SUA Convention, Submitted by the United States’ (22 March 2002) 84th Session IMO Doc LEG 84/6/1; IMO Legal Committee, ‘Review of SUA Convention and Protocol: Proposed amendments, Submitted by Turkey’ (22 March 2002) 84th Session IMO Doc LEG 84/6/2; IMO Legal Committee, ‘Report of the Legal Committee on the Work of its Eighty-Fourth Session’ (7 May 2002) 84th Session IMO Doc LEG 84/14, Annex 2, ‘Terms of Reference of the Correspondence Group Regarding the 1988 SUA Convention and the 1988 SUA Protocol’.
153 1988 SUA Convention art 3. These offences were modelled on the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970) 860 UNTS 105, and the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971) 974 UNTS 177.
156 2005 SUA Protocol art 3, adding art 2bis to the 1988 SUA Convention. In addition, art 3bis(2) allows for a carefully-worded exception to the possible offences under that article if the transport of nuclear weapons is consistent with the NPT.
160 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (2000) 40 ILM 384 [‘Migrant Smuggling Protocol’].
163 IMO Legal Committee, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States’ (17 August 2002) 85th Session IMO Doc LEG 85/4.
164 See above text to nn 145–50.
165 Agreement Between the United States of America and the Republic of Haiti Concerning Cooperation to Suppress Illicit Maritime Drug Traffic (1997) 1997 UST LEXIS 128; Agreement Between the Government of the United States of America and the Government of the Republic of Honduras Concerning Cooperation for the Suppression of Illicit Maritime Traffic in Narcotic Drugs and Psychotropic Substances (2000) 2000 UST LEXIS 159; Agreement Between the Government of the United States of America and the Government of the Republic of Nicaragua Concerning Cooperation to Suppress Illicit Traffic by Sea and Air (2001) 2001 UST LEXIS 63; Agreement Between the Government of the United States of America and the Government of the Republic of Guatemala concerning cooperation to suppress illicit traffic in narcotic drugs and psychotropic substances by sea and air (2003) <http://guatemala.usembassy.gov/uploads/images/COB7Udl1HS7y04mWhEcLNg/usguatmaritimeagreemente.pdf>.
166 International Conference on the Revision of the SUA Treaties, ‘Consideration of: A draft protocol to the Convention for the suppression of unlawful acts against the safety of maritime navigation, 1988 and a draft protocol to the protocol for the suppression of unlawful acts against the safety of fixed platforms located on the continental shelf, 1988: Comments on counter-terrorism, nonproliferation and boarding provisions, Submitted by the United States’ (22 September 2005) IMO Doc LEG/CONF.15/15, para 3.
167 The limitation of the application of the 2005 SUA Protocol to outside the territorial sea is consistent with the geographical scope of the 1988 SUA Convention. See 1988 SUA Convention art 4. For discussion regarding controversy in establishing this scope during the negotiations of this treaty, see Plant, ‘The Convention for the Suppression of Unlawful Acts’ 37–40; Treves, ‘The Rome Convention’ 73–7.
168 IMO Review Working Group, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Proposed revisions to the proposed Protocol to the SUA Convention from the LEG 88 SUA Work Group (Annex 1), Submitted by the United States’ (12 July 2004) 1st Session IMO Doc LEG/SUA/WG.1/2/6.
172 IMO Legal Committee, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States’ (17 August 2002) 85th Session IMO Doc LEG 85/4 Annex 1, 7.
173 IMO Legal Committee, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States’ IMO Docs LEG 86/5 (26 February 2003) and LEG 86/5/Corr.1 (13 March 2003) 86th Session Annex 1, art 8bis(2), (6).
174 Referring to arts 108(2), 17(20) and (3), and 8(1) and (2) of these instruments, respectively. IMO Legal Committee, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States’ IMO Docs LEG 86/5 (26 February 2003) and LEG 86/5/Corr.1 (1 March 2003) 86th Session Annex 1, note xxiii, 22–3.
175 IMO Legal Committee, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States’ (8 August 2003) 87th Session IMO Doc LEG 87/5/1 Annex 1, 8; IMO Legal Committee, ‘Review of SUA Convention and Protocol, Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States’ (13 February 2004) 88th Session IMO Doc LEG 88/3 Annex 1 art 8bis (2); IMO Review Working Group ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Proposed revisions to the proposed Protocol to the SUA Convention from the LEG 88 SUA Work Group (Annex 1), Submitted by the United States’ (12 July 2004) 1st Session IMO Doc LEG/SUA/WG.1/2/6.
177 France had made a proposal to this effect but it was not incorporated into the text. See IMO Review Working Group, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Complements to the “Boarding” section, Submitted by France’ (30 June 2004) 1st Session IMO Doc LEG/SUA/WG.1/2/1, art 8bis(2). See also IMO Review Working Group, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Proposed revisions to the proposed Protocol to the SUA Convention from the LEG 88 SUA Work Group (Annex 1), Submitted by the United States’ (12 July 2004) 1st Session IMO Doc LEG/SUA/WG.1/2/6 (a proposal that would have required the requesting party to hand over any evidence to the flag state); IMO Legal Committee, ‘Report of the Legal Committee on the Work of its Ninetieth Session’ (9 May 2005) 90th Session IMO Doc LEG 90/15, para 66 (referring to a comparable proposal from India but was rejected, with some delegations stating it was already covered by the text of para 5).
178 See text below to n 249.
182 In its first articulation, the US proposed two methods by which a flag state could authorize the boarding of one of its vessels outside of territorial waters: ‘either advance authorization when the enumerated conditions are met, or a procedure for granting authorization on an as-requested basis, including authorization when no reply is given within four hours’. IMO Legal Committee, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States’ (17 August 2002) 85th Session IMO Doc LEG 85/4, para 12. As the paragraph is finally drafted, the precise sequence of decision making is not completely clear and logical given the alternatives for authorizing boarding. An alternative proposed structure would have been preferable in this regard. See IMO Legal Committee Working Group on the Review of the SUA Convention and Protocol [‘Review Working Group’], ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, US delegation’s proposed revisions to the proposed Protocol to the SUA Convention (Annex 1), Submitted by the United States’ (30 June 2004) 1st Session IMO Doc LEG/SUA/WG.1/2, para 13 (which delineates more clearly the alternatives and appropriate sequence of events).
183 IMO Legal Committee, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States’ (17 August 2002) 85th Session IMO Doc LEG 85/4, para 12.
184 IMO Legal Committee, ‘Review of SUA Convention and Protocol, Draft Amendments to the SUA Convention and Protocol, Submitted by the United States’ (15 September 2004) 89th Session IMO Doc LEG 89/4/5, para 12. See also IMO Legal Committee ‘Report of the Legal Committee on the Work of its Eighty-Ninth Session’ (4 November 2004) 89th Session IMO Doc LEG/89/16, para 51 (supporting China’s proposal that a provision specifically stating the need for express authorization be included in the SUA Protocol).
185 See below Part E(2)(b).
187 Earlier drafts had referred to the need of states parties to respond expeditiously to a request confirming nationality as well as requests for authorization to take appropriate measures with regard to that ship. IMO Legal Committee, ‘Review of SUA Convention and Protocol, Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States’ (13 February 2004) 88th Session IMO Doc LEG 88/3Annex 2 art 8bis(3). These separate requirements were subsequently replaced by the one general requirement in para 1 of the article. See Review Working Group, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, US delegation’s proposed revisions to the proposed Protocol to the SUA Convention (Annex 1), Submitted by the United States’ (30 June 2004) 1st Session IMO Doc LEG/SUA/WG.1/2, para 9.
188 IMO Legal Committee ‘Report of the Legal Committee on the Work of its Eighty-Ninth Session’ (4 November 2004) 89th Session IMO Doc LEG/89/16, para 47 (‘unless a clear time limit was established, legal uncertainty would arise as to what the requesting Party would be entitled to do in the event an answer was not received’). See also Review Working Group, ‘Review of the draft Protocol to the Convention for the suppression of unlawful acts against the safety of maritime navigation, 1988 (1988 SUA Convention) [‘Review of draft Protocol’], Submitted by the Secretariat’ (3 December 2004) 2nd Session IMO Doc LEG/SUA/WG.2/2/1 Annex art 8bis, para 3(d) (‘[O]ne delegation proposed the insertion of a new subparagraph (d) that would set out consequences in the event of a request Party’s failure to respond. This proposal was discussed but not accepted by the LEG 89 Formal Working Group.’).
189 IMO Review Working Group, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Proposed revisions to the proposed Protocol to the SUA Convention from the LEG 88 SUA Work Group (Annex 1), Submitted by the United States’ (12 July 2004) 1st Session IMO Doc LEG/SUA/WG.1/2/6 (referring to the 1995 European Agreement, which provides: ‘The flag State shall immediately acknowledge receipt of a request for authorization under Article 6, and shall communicate a decision thereon as soon as possible, and wherever practicable, within four hours of receipt of the request’).
190 IMO Legal Committee, ‘Review of SUA Convention and Protocol: On 8bis(3): new paragraph (d), Submitted by France’ (25 October 2004) 89th Session IMO Doc LEG 89/WP.3 art 8bis, para. 3(d); Review Working Group, ‘Review of Draft Protocol: New Article 8bis(3)(d), Submitted by France’ (2 February 2005) 2nd Session IMO Doc LEG/SUA/WG.2/WP.1/Rev.2.
191 Review Working Group, ‘Draft Report of the Working Group’ (4 February 2005) 2nd Session IMO Doc LEG/SUA/WG.2/WP.16/Add.1, para 59. See also Review Working Group, ‘Report of the Working Group’ 2nd Session IMO Docs LEG/SUA/WG.2/4 (9 February 2005) and LEG/SUA/WG.2/4/Corr.1 (24 February 2005), paras 59–60.
192 IMO Legal Committee, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Submitted by China’ (22 September 2004) 89th Session IMO Doc LEG 89/4/3, para 5. See also ‘Review of SUA Convention and Protocol: Comments and proposals, Submitted by China’ (18 March 2005) 90th Session IMO Doc LEG/90/4/6, para 3 (advocating the deletion of France’s proposed text on warning shipping if there is no response).
197 China insisted on unambiguous language in this regard. See IMO Legal Committee, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Submitted by China’ (22 September 2004) 89th Session IMO Doc LEG 89/4/3, para 7.
198 IMO Legal Committee, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States’ IMO Docs LEG 86/5 (26 February 2003) and LEG 86/5/Corr.1 (13 March 2003) 86th Session Annex 1, note xxx, p 23.
199 IMO Legal Committee, ‘Review of SUA Convention and Protocol, Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States’ (13 February 2004) 88th Session IMO Doc LEG 88/3 Annex 1 art 8bis(3).
202 IMO Legal Committee, ‘Review of SUA Convention and Protocol: Comments on draft article 3bis, Submitted by the International Chamber of Shipping (ICS), the International Shipping Federation (ISF) and the International Confederation of Free Trade Unions (ICFTU)’ (19 March 2004) 88th Session IMO Doc LEG 88/3/3, para 4.
204 See Chapter 3, Part H(2)(d) (discussing therein the Exchange of Notes).
205 Kieserman has argued that the range of options may attract signatories as states have flexibility in adopting a procedure that best fits their available resources. Kieserman, ‘Preventing and Defeating Terrorism at Sea’ 440.
207 Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States, Annex I, art 8bis(3)(e) (noting that no proposed text on the effective date of notification had been received and including a suggestion of an unspecified number of days). IMO Legal Committee, ‘Review of SUA Convention and Protocol: On 8bis(3): new paragraph (d), Submitted by France’ (25 October 2004) 89th Session IMO Doc LEG 89/WP.3 art 8bis(3)(f).
208 Article 56 of the Vienna Convention on the Law of Treaties anticipates a one-year notice period for the withdrawal from treaties. Vienna Convention on the Law of Treaties (1969) 1155 UNTS 331 art 56.
209 These provisions were primarily driven by the International Confederation of Free Trade Unions, which insisted on maintaining protection for seafarers in the 2005 SUA Protocol in a comparable manner to those afforded in the ISPS Code and SOLAS Convention, as well as being consistent with the high priority accorded to what was referred to as the human element in the work of the IMO. See IMO Legal Committee, ‘Review of SUA Convention and Protocol: Submitted by the International Confederation of Free Trade Unions (ICFTU)’ (11 September 2003) 87th Session IMO Doc LEG 87/5/2, paras 4–6.
211 IMO Legal Committee, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States’ (17 August 2002) 85th Session IMO Doc LEG 85/4 Annex 1, 8.
212 IMO Legal Committee, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States’ IMO Docs LEG 86/5 (26 February 2003) and LEG 86/5/Corr.1 (13 March 2003) 86th Session Annex 1, note xxxv, 23–4.
213 Article 22(1)(f) of that treaty reads: ‘The degree of force used shall not exceed that reasonably required in the circumstances’. This approach was advocated by the United Nations as part of the discussions in the correspondence group. See IMO Legal Committee, ‘Review of SUA Convention and Protocol: Submitted by the International Confederation of Free Trade Unions’ (11 September 2003) 87th Session IMO Doc LEG 87/5/2, para 12. See also Review Working Group, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, US delegation’s proposed revisions to the proposed Protocol to the SUA Convention (Annex 1), Submitted by the United States’ (30 June 2004) 1st Session IMO Doc LEG/SUA/WG.1/2, para 17.
217 It was acknowledged during the course of negotiations that ‘while as a general rule, the flag State will normally remain in charge of the boarding operation and of the subsequent steps that might follow, including criminal prosecutions, there may be situations in which it would be more sensible to allow the intervening State—or a third State—to exercise its jurisdiction.’ IMO Legal Committee ‘Report of the Legal Committee on the Work of its Eighty-Ninth Session’ (4 November 2004) 89th Session IMO Doc LEG/89/16, para 56.
218 Review Working Group, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, US delegation’s proposed revisions to the proposed Protocol to the SUA Convention (Annex 1), Submitted by the United States’ (30 June 2004) 1st Session IMO Doc LEG/SUA/WG.1/2, para 16. See also Review Working Group, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Comments on Annex 1 as circulated by e-mail by the Co-ordinator of the Correspondence Group, Submitted by Brazil’ (30 June 2004) 1st Session IMO Doc LEG/SUA/WG.1/2/2, para 10; IMO Review Working Group, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Proposed revisions to the proposed Protocol to the SUA Convention from the LEG 88 SUA Work Group (Annex 1), Submitted by the United States’ (12 July 2004) 1st Session IMO Doc LEG/SUA/WG.1/2/6.
219 Proposals to refer to compensation payable or to joint and several liability were not adopted. See Review Working Group, ‘Review of SUA Convention and Protocol: Draft amendments to the SUA Convention and SUA Protocol, Comments on US delegation’s proposed revisions to the proposed Protocol to the SUA Convention (Annex 1), Submitted by Brazil’ (9 July 2004) 1st Session IMO Doc LEG/SUA/WG.1/2/4, para 14; Review Working Group, ‘Review of SUA Convention and Protocol: Suggested amendments to article 8bis8b (Safeguards), Submitted by Mexico’ (12 July 2004) 1st Session IMO Doc LEG/SUA/WG.1/2/8.
222 Agreement between the Government of the Commonwealth of the Bahamas and the Government of the United States of America concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea (US-Bahamas) (2008) <http://www.state.gov/t/isn/trty/108223.htm> [‘US-Bahamas Agreement’].
223 Agreement between the Government of the United States of America and the Government of Belize concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea (US-Belize) (2005) <http://www.state.gov/t/isn/trty/50809.htm> [‘US-Belize Agreement’].
224 Agreement between the Government of the United States of America and the Government of the Republic of Croatia concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea (US-Croatia) (2005) <http://www.state.gov/t/isn/trty/47086.htm> [‘US-Croatia Agreement’].
225 Agreement between the Government of the United States of America and the Government of the Republic of Cyprus concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea (US-Cyprus) (2005) <http://www.state.gov/t/isn/trty/50274.htm> [‘US-Cyprus Agreement’]
226 Agreement between the Government of the United States of America and the Government of the Republic of Liberia concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea (US-Liberia) (2004) KAV 7065 [‘US-Liberia’].
227 Agreement between the Government of the United States of America and the Government of the Republic of the Marshall Islands concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea (US-Marshall Islands) (2004) KAV 7064 [‘US-Marshall Islands Agreement’].
228 Agreement between the Government of the United States of America and the Government of Malta concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea (US-Malta) (2007) <http://www.state.gov/t/isn/trty/81883.htm> [‘US-Malta Agreement’].
229 Agreement between the Government of the United States of America and the Government of Mongolia concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea (US-Mongolia) (2007) <http://www.state.gov/t/isn/trty/94626.htm> [‘US-Mongolia Agreement’].
230 Amendment to the Supplementary Arrangement between the Government of the United States of America and the Government of the Republic of Panama to the Arrangement between the Government of the United States of America and the Government of Panama for Support and Assistance from the United States Coast Guard for the National Maritime Service of the Ministry of Government and Justice (US-Panama) (2004) <http://www.state.gov/t/isn/trty/32858.htm> [‘US-Panama Agreement’]. The significance of agreements with these states has been noted by Joseph: ‘More than half of the world’s shipping,measures on the basis of gross tonnage, nowis registered in six states: Liberia, Panama, the Bahamas, Malta, Cyprus, and the Marshall Islands.’ Jofi Joseph, ‘The Proliferation Security Initiative: Can Interdiction Stop Proliferation?’ (June 2004) Arms Control Today 6, 12.
231 Media Note, Office of the Spokesman, Washington, D.C., The United States and Belize Proliferation Security Initiative Ship Boarding Agreement (4 August 2005). This percentage has undoubtedly increased with the adoption of subsequent bilateral ship-boarding agreements between the US and the Bahamas, Malta and Mongolia, especially as the Bahamas has the third largest flag registry of merchant ships in the world, according to gross tonnage, and operates as an open registry for ship owners from numerous countries. Office of the Spokesman, Washington DC ‘The United States and the Bahamas Proliferation Security Initiative Ship-boarding Agreement, Fact sheet’ (11 August 2008) <http://merln.ndu.edu/archivepdf/ARA/State/108128.pdf>.
234 See text to nn 355–8 below.
235 See also Chapter 6, Part C(3)(c).
236 Items of proliferation are usually defined as ‘WMD, their delivery systems, and related material’. ‘Related materials’ are then defined as ‘materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists of either Party, or as otherwise agreed by the Parties for the purposes of this Agreement, which could be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery’. This definition allows for the Parties to decide how they will characterize dual-use materials in any given situation.
237 The extent that sovereign equality has been at play between the US and the states with which it has concluded these agreements has been questioned by some commentators. See text below to nn 253–4. Byers has noted that Liberia does not have its own navy and so there is a complete absence of reciprocity in its bilateral agreement with the US. See Michael Byers, ‘Policing the High Seas: The Proliferation Security Initiative’ (2004) 98 AJIL 526, 530.
239 US-Belize Agreement art 15. There is a further savings clause in the same article that nothing in the agreements will ‘alter the rights and privileges due any person in any administrative or judicial proceeding conducted under the jurisdiction of either Party’.
242 The template, with commentary, may be seen in J. Ashley Roach, ‘Proliferation Security Initiative (PSI): Countering Proliferation by Sea’ in Myron H. Nordquist, John Norton Moore and Kuen-chen Fu (eds), Recent Developments in the Law of the Sea and China (Martinus Nijhoff, Leiden 2006) 351, 360.
244 Although a note has been included defining this term in relation to UN Security Council Resolution 1540. The preferred US definition does not require reference to specific lists but allows for a case-by-case approach. Roach, ‘Countering Proliferation by Sea’ 378–9.
246 See, eg, US-Belize Agreement art 5(1). That it is the flag state that has jurisdiction is made explicit in the US-Cyprus Agreement. The US-Marshall Islands Agreement and the US-Liberia Agreement allow for the possibility that the state with primary jurisdiction may waive that right and authorize enforcement of the other party’s law.
249 See, eg, US-Liberia Agreement art 4(2). This latter feature is notable because it is not included in the 2005 SUA Protocol. The US-Cyprus Agreement refers in art 4(2) to ‘sufficiently reliable information forming the basis for the suspicion’.
253 Jack Garvey, ‘The International Institutional Imperative for Countering the Spread of Weapons of Mass Destruction: Assessing the Proliferation Security Initiative’ (2005) 10 Journal of Conflict and Security Law 125, 133. Only the treaty with Belize explicitly allows for the possibility of seeking additional time to reply.
254 Ibid, 142. Guilfoyle argues, on the other hand, that ‘this may represent a means for a small State to externalize some of its security or reputation costs’. Douglas Guilfoyle, ‘Maritime Interdiction of Weapons of Mass Destruction’ (2007) 12 Journal of Conflict and Security Law 1, 23.
255 See, eg, US-Belize Agreement art 8. The US-Croatia Agreement does not refer to either national or international standards specifically in relation to the use of force but instead requires that force is to be ‘avoided except when necessary to ensure the safety of its officials and persons on board, or where the officials are obstructed in the execution of the authorized actions. Any use of force pursuant to this Agreement shall not exceed the minimum degree of force which is necessary and reasonable in the circumstances’. US-Croatia Agreement art 9(1). It is further provided: ‘Nothing in this Agreement shall impair the exercise of the inherent right of self-defense by Security Force or other officials of either Party’. US-Croatia Agreement art 9(2). This formulation also appears in art 9 of the US-Mongolia Agreement and the US-Bahamas Agreement. This clause would seem to indicate that the international standard is the most appropriate point of reference in assessing the use of force in a boarding.
256 The US-Marshall Islands Agreement elaborates in art 8(1)(a) on taking account of safety of life at sea by referring to taking precautions not to hazard unduly the vessel or its crew while boarding, as well as taking account of the vessel location to avoid inadvertently endangering other vessels.
266 See above Part E(1)(e).
267 See International Law Programme Discussion Group at Chatham House, ‘The Proliferation Security Initiative: Is It Legal? Are We More Secure?’ (24 February 2005) <http://www.chathamhouse.org.uk/publications/papers/view/-/id/278/> (reporting on suggestion that the US may persuade states to ‘opt-in’ in a similar manner to the way that the United States has convinced states parties to the Statute of the International Criminal Court to conclude treaties as per art 98 of the Court’s Statute so as to exclude the jurisdiction of the Court over US nationals).
268 The 2005 SUA Protocol enters into force on 28 July 2010. See IMO, ‘Summary of Status of Convention’ (as of 30 April 2010) <http://www.imo.org/Conventions/mainframe.asp?topic_id=247>. The 12 parties at this date represent 6.40% of world tonnage.
271 IMO Legal Committee, ‘Review of SUA Convention and Protocol, Draft amendments to the SUA Convention and SUA Protocol, Submitted by the United States’ (13 February 2004) 88th Session IMO Doc LEG 88/3 Annex 1 art 8bis, p 13 para 16.
273 More precisely, the US has described it as follows: ‘PSI participants are committed … to establish a more coordinated and effective basis through which to impede and stop shipments of WMD, delivery systems, and related materials flowing to and from states and non-state actors of proliferation concern, consistent with national legal authorities and relevant international law and frameworks, including the UN Security Council.’ Office of the Press Secretary, The White House, Washington DC ‘Proliferation Security Initiative: Statement of Interdiction Principles, Fact Sheet’ (4 September 2003) [‘Statement of Interdiction Principles, Fact Sheet’] <http://carnegieendowment.org/publications/index.cfm?fa=view&id=20225>. See also Bureau of International Security and Nonproliferation, The White House, Washington DC, ‘Interdiction Principles for the Proliferation Security Initiative’ (4 September 2003) [‘Statement of Interdiction Principles’] preamble <http://www.state.gov/t/isn/c27726.htm>. The PSI extends to the prevention of proliferation of WMD by sea, land and air. See Statement of Interdiction Principles principle 4(e) and 4(f). However, the maritime aspects are most relevant for present purposes.
276 The criticism is not limited to the potential legal ramifications, as Valencia has noted that the PSI ‘has been criticised for lack of transparency, stretching if not violating the principles of international law, weakening the UN system, being ineffective and politically divisive, and diluting other non-proliferation efforts’. Valencia, The Proliferation Security Initiative 8.
277 Joseph, ‘The Proliferation Security Initiative’ 6. The practical aspects of the PSI were highlighted by Australia, which was one of the core participants: ‘Australia shares President Bush’s vision of expanding PSI cooperation into the realm of law enforcement, particularly through Interpol. The PSI is fundamentally a practical measure. So it should focus some of its effort on strengthening the capacity of these key professions.’ Alexander Downer, ‘The Threat of Proliferation: Global Resolve and Australian Action’ (Speech to Lowy Institution, 23 February 2004) <http://www.iranwatch.org/government/Australia/australia-mfa-proliferation-threat-022304.htm>.
279 ‘The New Multilateralism’ Wall Street Journal (8 January 2004, A22). In March 2006, the US released the National Security Strategy, which looked towards: ‘Establishing results-oriented partnerships on the model of the PSI to meet new challenges and opportunities. These partnerships emphasize international cooperation, not international bureaucracy. They rely on voluntary adherence rather than binding treaties. They are oriented towards action and results rather than legislation or rule-making.’ National Security Council, The White House, Washington DC, ‘National Security Strategy’ (March 2006) part IX(c) <http://georgewbush-whitehouse.archives.gov/nsc/nss/2006/sectionIX.html>.
280 Garvey, ‘The International Institutional Imperative’ 129. See also Samuel E. Logan, ‘The Proliferation Security Initiative: Navigating the Legal Challenges’ (2005) 14 JTLP 253, 255 (referring to the PSI as a ‘loose alliance’).
281 Garvey, ‘The International Institutional Imperative’ 130. See also Andrew C. Winner, ‘The Proliferation Security Initiative: The New Face of Interdiction’ (2005) 28 Washington Quarterly 129, 130 (‘Like other nonproliferation efforts, the PSI conceptually resembles an international regime—a set of principles, norms, rules and decision-making procedures in a given issue areas. It is a regime, however, designed for a new era … ’).
282 Robert Joseph, Under Secretary for Arms Control and International Security, ‘Transforming our Counterproliferation Efforts in the Asia Region’ (Remarks to the Institute of Defence and Strategic Studies, Singapore, 15 August 2005) <http://merln.ndu.edu/archivepdf/wmd/State/51129.pdf>.
284 The former Australian Foreign Minister, for example, commented: ‘so sophisticated and widespread is this threat [of proliferation of WMD] that we must confront it directly—with action, not merely talk of action.’ Alexander Downer, former Australian Minister for Foreign Affairs, ‘The Threat of Proliferation: Global Resolve and Australian Action’ (Speech to Lowy Institution, 23 February 2004) <http://www.iranwatch.org/government/Australia/australia-mfa-proliferation-threat-022304.htm>.
285 Winner comments that a failed interdiction attempt during the first Clinton administration against a Chinese vessel suspected of carrying chemicals to Iran for the production of poisonous gases also influenced the perceived need for the PSI. See Winner, ‘The Proliferation Security Initiative’ 130–1.
288 Byers, ‘Policing the High Seas’ 526 (referring to a statement of White House Spokesperson Ari Fleischer). Secretary of State Colin Powell also indicated that the ship had been released to continue its journey ‘in acknowledgement of the fact that it was on international waters and it was a sale that was out in the open and consistent with international law’. Cited in Joyner, ‘The Proliferation Security Initiative’ 509. Some commentators suggest that the US was also, or primarily, motivated by political concerns given its ties with Yemen in addressing terrorist threats. See, eg, Becker, ‘The Shifting Public Order’ 153.
289 These core members were Australia, Canada, France, Germany, Italy, Japan, the Netherlands, Norway, Poland, Portugal, Singapore, Spain, Russia, the United Kingdom, and the United States. Joseph has commented that it was surprising to some that France and Germany were willing to be involved in the PSI in view of their objection to the 2003 war in Iraq. Joseph, ‘The Proliferation Security Initiative’ 13. He notes, though, that their involvement may have been less motivated by the aims of the PSI than the desire to influence and limit it. Ibid.
290 Russia was only willing to become a core participant if it could be assured that PSI activities would not violate national or international law. Prosser and Scoville, ‘The Proliferation Security Initiative in Perspective’ 1.
291 Bureau of Nonproliferation, Washington DC, ‘Proliferation Security Initiative Frequently Asked Questions (FAQs)’ (26 May 2005) <http://merln.ndu.edu/archivepdf/wmd/State/46839.pdf>. The US wanted participant states publicly to endorse the Statement of Interdiction Principles through a diplomatic note and public statement of support. Only 20 states, out of a claimed 60 states in support, have taken this step. Valencia, The Proliferation Security Initiative 29.
292 Department of Foreign Affairs Website, Canada cited in McDorman, ‘From the Desk’ 382. See also Statement of Interdiction Principles. See further ‘Statement of Interdiction Principles, Fact Sheet’ (‘The PSI seeks to involve in some capacity all states that have a stake in non-proliferation and the ability and willingness to take steps to stop the flow of such items at sea’, as well as those states whose vessels or territory may be used for proliferation purposes).
297 See Paula A. DeSutter, Assistant Secretary of State for Verification and Compliance before the U.S.-China Commission, ‘China’s Record of Proliferation Activities’ (Testimony of 24 July 2003) <http://www.uscc.gov/textonly/transcriptstx/tesut.htm>; Shirley A. Kan, Specialist in National Security Policy Foreign Affairs, Defence and Trade Division, ‘China Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues’ (Congressional Research Service, 8 August 2003) <http://fpc.state.gov/documents/organization/18223.pdf>.
298 Prosser and Scoville, ‘The Proliferation Security Initiative in Perspective’ 2. See also Becker, ‘The Shifting Public Order’ 165–6 (discussing China’s relationship with the PSI and describing it as ‘level-headed, if cautiously skeptical’).
312 Valencia, ‘Unsettling Asia’ 56. Guilfoyle has taken the view that the commitments set forth in the Statement of Interdictions Principles set a minimum threshold and are not necessarily a complete statement of available measures for participant states. Douglas Guilfoyle, ‘The Proliferation Security Initiative: Interdicting Vessels in International Waters to Prevent the Spread of Weapons of Mass Destruction?’ (2005) 29 Melbourne University Law Review 733, 739.
316 Ibid principle 4(d).
319 Ibid 236; Guilfoyle, ‘The Proliferation Security Initiative’ 741.
320 See Chapter 3, Part B.
322 Ibid 211.
333 UNCLOS art 19(1) (‘Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State’). See also Chapter 2, Part B(2); Rüdiger Wolfrum, ‘Freedom of Navigation: New Challenges’ in Myron H. Nordquist, Tommy T.B. Koh and John Norton Moore (eds), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (Martinus Nijhoff, Leiden 2009) 79, 90.
334 Prosser and Scoville, ‘The Proliferation Security Initiative in Perspective’ 3. See also Logan, ‘The Proliferation Security Initiative’ 259 (‘it is not the mere transport of WMD that threatens a state’s sovereignty, but the use of these weapons against it’).
335 Garvey, ‘The International Institutional Imperative’ 131. Equally, it has been observed that UNCLOS does not foreclose such an interpretation. Lehrman, ‘Enhancing the Proliferation Security Initiative’ 232. See also Kaye, ‘The Proliferation Security Initiative’ 214 (‘Clearly the delivery of WMD to terrorists may well be highly prejudicial to the peace, good order and security of a coastal State, and an argument could be made that such a passage is therefore not innocent, and the restrictions on coastal State authority over the passing vessel are removed’).
337 Churchill and Lowe, The Law of the Sea 86. See also Joyner, ‘The Proliferation Security Initiative’ 529. It is therefore not relevant that the coastal state is limited as to what laws and regulations it may adopt under art 21 of UNCLOS. Cf Kaye, ‘The Proliferation Security Initiative’ 213.
342 Ibid, 529.
351 Spadi comments that the US did seek automatic authorization for boarding PSI participant vessels, but had to drop the proposal due to lack of agreement among the core participants. Fabio Spadi, ‘Bolstering the Proliferation Security Initiative at Sea: A Comparative Analysis of Ship-boarding as a Bilateral and Multilateral Implementing Mechanism’ (2006) 75 Nordic Journal of International Law 249, 255.
352 Lehrman, ‘Enhancing the Proliferation Security Initiative’ 229. Garvey similarly notes: ‘Flag state jurisdiction cannot be ignored because it is pre-eminently a matter of international legitimacy, as a highly significant embodiment of the general principle of freedom of the seas. It is of critical importance to securing the interests of the global economy and the world’s major navies, and epitomizes international law where adherence is firm and universal in its political basis.’ Garvey, ‘The International Institutional Imperative’ 132.
354 ‘Statement of Interdiction Principles, Fact Sheet’ (referring to the June 2003 G-8 Declaration on the Nonproliferation of Weapons of Mass Destruction and the EU-US Joint Statement on the Proliferation of Weapons of Mass Destruction of June 25 2003). The EU has declared itself in support of the Statement of Interdiction Principles in a Council Resolution 10052/04 on support of the Proliferation Security Initiative (PSI), Brussels, 1 June 2004.
359 Joyner emphatically denies that there is any existing right under customary international law to permit the interdiction of foreign flagged vessels on the high seas. Joyner, ‘The Proliferation Security Initiative’ 536–7.
361 Ibid 48.
362 Ibid 47.
363 Ibid 48.
364 See discussion in Chapter 6, Part C(3)(c).
367 Timothy C. Perry, ‘Blurring the Ocean Zones: The Effect of the Proliferation Security Initiative on the Customary International law of the Sea’ (2006) 37 ODIL 33, 40. Perry also points to the number of states involved in the PSI, including states with the largest ship registries, and likelihood of acquiescence in the US activities that may support the formulation of new customary international law. Ibid 44–5. However, the fact that the US has entered into bilateral treaties with the states with the largest ship registries (rather than relying purely on the PSI) tends to reinforce the existing legal rules on the right of visit, which requires a treaty or other manifestation of consent of the flag state, instead of contributing to the formulation of a new right of visit on the high seas.
368 Jon M. Van Dyke, ‘Balancing Navigational Freedom with Environmental and Security Concerns’ (2003) Colorado Journal of International Environmental Law and Policy 19, 27 (citing Remarks to the National Legal Center for the Public International, 31 October 2003).
369 Ibid 27 (referring to an article in the Canberra Times, 12 June 2003). See also Alexander Downer, ‘The Threat of Proliferation: Global Resolve and Australian Action’ (Speech to Lowy Institute, 23 February 2004) <http://www.iranwatch.org/government/Australia/australia-mfa-proliferation-threat-022304.htm>: ‘The non-proliferation agenda is too important to be bound by rigid dogma.’
371 ‘PSI states remain secretive about the methods being employed and the number of actual interdictions being carried out.’ Prosser and Scoville, ‘The Proliferation Security Initiative in Perspective’ 1.
373 Stephen G. Rademaker, Assistant Secretary of State for Arms Control, ‘The Proliferation Security Initiative (PSI): A Record of Success’ (Testimony before the House International Relations Committee, Subcommittee on International Terrorism and Nonproliferation, Washington DC, 9 June 2005) <http://www.nti.org/e_research/official_docs/congress/senate060905.pdf>.
374 Bureau of Nonproliferation, Washington DC, ‘The Proliferation Security Initiative (PSI): Second Anniversary’ (26 May 2005) <http://www.nuclearfiles.org/menu/key-issues/nuclear-weapons/issues/governance/psi/2005-05-26_psi-second-anniverary-fact-sheet.htm>. Anonymous officials apparently told the New York Times in May 2004 that the number of interdictions was around one dozen. Joseph, ‘The Proliferation Security Initiative’ 10 citing Judith Miller ‘Panama Joins Accord to Stem Ships’ Transport of Illicit Arms’ The New York Times (11 May 2004).
381 Ibid 139. ‘The formulation of a specific text, passing before each participant, becomes a tool for making effective political support, that otherwise would be clouded by the ambiguities of multifarious pronouncements by the governments involved.’ Ibid 140.
382 Ibid 141.
383 Ibid 145.
384 See text to n 295 above.
386 Within its first year of operation, nearly 20 multilateral exercises were carried out in different parts of the world with various participants. Winner considers that these exercises have been important ‘to build capability, emphasizing largely tactical interoperability among the various armed forces and agencies; to provide evidence to the public of a genuine political commitment; and to send a deterrent message to current and potential proliferators’. Winner, ‘The Proliferation Security Initiative’ 134.
390 ‘It is submitted that the potential use of sovereign immune vessels to ship WMD to non-State actors represents the greatest challenge posted by the PSI to the law of the sea. Such vessels cannot, under international law, be interfered with by port States or coastal States without the consent of the flag State or the master.’ Kaye, ‘The Proliferation Security Initiative’ 225.
391 See Chapter 2, Part C(1) (discussing military activities in this zone).
392 See Chapter 3, Part F(2).
394 Ibid 543.