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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 16 April 2015
Policing the Oceans: The Proliferation
Security
Initiative
RICHARD A. BARNES*
INTRODUCTION
The Proliferation Security Initiative (PSI) was launched on 31 May 2003 as part of a multilateral effort to prevent the proliferation of weapons of mass destruction (WMD).' This was followed by the release of a Statement of Interdiction Principles, the aims of which are 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 United Nations Security Council'.2 The participating States undertook not to transport or assist in the transport of WMD cargoes to or from States or non-State actors of concern, to board and search suspicious vessels flying their own flag, to provide consent, where appropriate, to other States to board and search their vessels, to stop and search such vessels in internal waters, territorial seas or contiguous zones, to require suspicious aircraft in their airspace to land for inspection, and to inspect at their ports and airfields vessels and aircraft reasonable suspected of
Dr. Richard A. Barnes, Law School, University of Hull, UK.
Remarks by the President to the Peoples of Poland, 31 March 2003. Available
online at http://www.whitehouse.gov/news/releases/2003/
05/20030531-3.html
2
The White House, Office of the Press Secretary, Proliferation Security
Initiative: Statement of Interdiction of Principles, 4 Sept.
2003. Available at
http://www.state.gov/t/np/r1s/fs/v23764.htm.
Hereinafter 'Interdiction Principles. The eleven countries attending the
Proliferation Security Initiative meetings include Australia,
France, Germany,
Italy, Japan, the Netherlands, Poland, Portugal, Spain, the United Kingdom and
the United States. Since then the
PSI initiative has attracted support from more
than 60 countries.
52 Yearbook of New Zealand Jurisprudence Vol
8.1
carrying WMD cargoes and to seize such cargoes.' Although the Statement of Interdiction Principles is not of itself normative in a strict legal sense, the US has entered into bilateral ship boarding agreements with Liberia, Panama, the Marshall Islands, and Croatia to provide the US with authority to interdict suspect vessels flying their respective flags.4 To date there have been 16 PSI exercises in furtherance of these principles.'
The consistency of the PSI with existing maritime jurisdiction and the exact bases for interdiction are matters some importance because the success of the PSI is largely dependent upon the ability of States to interdict suspect vessels of any flag and not simply their own vessels. States may only exercise jurisdiction over foreign flagged vessels in limited circumstances where consent to interdict foreign flagged vessels has been provided, either through conventional arrangements or regimes such as the PSI. The principle of exclusive flag State jurisdiction over vessels on the high seas limits opportunities to control vessels engaged in WMD proliferation. Given that not all flag States are willing to engage in multilateral or bilateral agreements that provide for interdiction, then the ability to act against vessels flagged to such States must be contingent on the existence or development of rules of customary international law permitting their interdiction. Apart from questions of jurisdiction, there are also potential operation problems with
3 Ibid.
4 Proliferation Security Initiative Ship Boarding Agreement with Liberia, 11 Feb. 2004 (entered force 9 Dec. 2004). Reproduced online at http://www.state.gov/t/np/trty/32403.htm. Proliferation Security Initiative Ship Boarding Agreement with Panama, 12 May 2004 (entered force 1 Dec. 2004). Reproduced online at http://www.state.gov/t/np/trty/32858.htm. Proliferation Security Initiative Ship Boarding Agreement with Marshall Islands, 13 August 2004 (entered force 24 Nov 2004). Reproduced online at http://www.state.gov/t/np/trty/35237.htm. Proliferation Security Initiative Ship Boarding Agreement with Croatia, 1 June 2005 Reproduced online at http://www.state.gov/t/np/trty/47086.htm
2005 Policing the Oceans: The Proliferation Security Initiative 53
the PSI. For example, a vessel may be suspected of carrying WMD or related materials. What are such related materials? Further difficulties arise in respect of dual use components that may be used in ordinary industrial processes apart from weapons construction. Does the carriage of such components render a vessel open to interdiction? This paper examines the legitimate extent of coastal States right to interdict vessels and the extent to which the Interdiction Principles provide a clear operational basis.
JURISDICTION TO INTERDICT VESSELS UNDER INTERNATIONAL LAW
International authority to interdict vessels is, for the most part, set out in the United Nations Convention on the Law of the Sea 1982.6 Jurisdiction is defined according to system of maritime zones system, with the extent of the coastal State's authority to a interdict vessel contingent on which maritime zones the vessel is located.
Internal Waters
Coastal States enjoy plenary legislative and enforcement jurisdiction over internal waters and ports. Ships entering ports and internal waters voluntarily submit to the jurisdiction of the coastal State. Thus, they may be subject to boarding, search and any further measures that port authorities consider necessary in pursuit of the PSI objectives. The plenary authority of port States to take measures suggests that they will have a central role to play in tackling proliferation activities. This is evident in relative success of port State control (PSC) activities in respect of sub-standard shipping.
However, some limitations to this approach should be noted. Firstly, the scope and content of PSC in respect of substandard shipping is explicitly endorsed by Article 218 of the LOSC and it has been refined by subsequent agreements in
6 United Nations Convention on the Law of the Sea 1982, 21 ILM 1245
(1982). Hereinafter, `LOSC'.
54 Yearbook of New Zealand
Jurisprudence Vol 8.1
order to maintain the critical balance between the interests of the shipping community and coastal States.' The success of PSC is based upon the maintenance of balanced and clearly identifiable global standards that enshrine broad international consensus on the protection of the marine environment. Although the absence of an express mandate in the LOSC to use PSC to prevent proliferation activities is not critical, the lack of clearly identifiable standards and procedures in respect of PSI activities may undermine this important balance between shipping and coastal State security. Secondly, PSC is not a mandatory obligation, it is a discretionary right. Unless States are required to take action against vessels suspected of carrying WMD or related materials, then PSC is likely to have only a limited effect. Finally, such control is clearly limited to vessels that are actually within internal waters or ports of the State. Thus PSI objectives may be frustrated by vessels simply avoiding ports where security measures are known to be in operation.
The Territorial Sea
Coastal States enjoy sovereignty over a 12 mile territorial sea.' The exercise of sovereignty is subject to limits imposed by the LOSC, as well as other rules of international law. The most important of these limitations is the right of innocent passage through the territorial sea. Yet, despite acceptance of the general regime of innocent passage, the exact meaning
8 LOSC
Articles 2 and 3.
2005 Policing the Oceans: The Proliferation Security
Initiative 55
and extent of the LOSC' s detailed provisions are somewhat less than clear, rendering coastal State authority to conduct PSI activities in their territorial sea somewhat uncertain.
It is well-established that the 'ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea'.9 This passage must be 'continuous and expeditious' and 'not prejudicial to the peace, good order or security of the coastal State'." Ships exercising the right of innocent passage through the territorial sea should not be subject to the criminal jurisdiction of the coastal State.' However, this limitation only applies to ships passing through the territorial sea or ships proceeding to a port, whereas ships proceeding from ports may be subject to the criminal jurisdiction of the coastal State." Coastal States enjoy a residual right of protection and may take necessary steps to prevent any breach of the conditions to which entry into a port or internal waters is subject.' Thus coastal States may clearly interdict vessels suspected of engaging in proliferation activities proceeding to or from their ports or internal waters, as long as such measures are properly proscribed under domestic law, and, in the case of protective measures attaching to entry to ports and internal waters, where the interdiction measures are considered to be necessary to protect the coastal State.
Where passage is non-innocent, then the coastal State is entitled to take such steps as are necessary to prevent passage.' This may include the exclusion of the offending vessel from the territorial sea, arrest and the commencement of legal proceedings against the vessel or its owners. Accordingly, if a vessel engaged in the carriage of WMD and related material was to be regarded as non-innocent, then
9 LOSC Article 17.
10 LOSC Article 18(2).
11 LOSC Articles 19(1).
12
LOSC Article 27.
13 LOSC Article 27(2)
14 LOSC Article 25(2)
15 LOSC
Article 25(1).
56 Yearbook of New Zealand Jurisprudence Vol 8.1
coastal States would clearly be entitled to stop, board and search a vessel in the territorial sea, and if necessary take further enforcement action. Of course this depends on whether or not the carriage of WMD and related materials renders passage non-innocent.
A State seeking to interdict a vessel in its territorial waters would have to demonstrate that passage was non-innocent by establishing that the passage was 'prejudicial to the peace, good order or security of the coastal State' .1' The LOSC provides a detailed list of activities to be regarded as prejudicial in Article 19(2). Although there is no explicit reference to proliferation activities, these may be implicit in Article 19(2)(a), which provides the most obvious basis for action under the PSI:
`(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations'
Churchill and Lowe suggest that the reference to threats of force is wide enough to encompass threats directed against States other than the coastal State.' This is wholly consistent with widely accepted interpretations of self-defence. Thus it need not be necessary for the threats or force to be directed at the coastal State to allow the coastal State to interdict a vessel. Although this suggests States might police coastal waters under the PSI on behalf of other concerned States, the problem is that the mere carriage of WMD or related materials falls someway short of a threat or of use of force.'
16 Although there is some doubt as to where the burden of proof in
establishing innocence of passage lies, it would seem logical for
this to fall
on the coastal State.
17
R.R. Churchill and A.V. Lowe, The Law of the Sea 3rd ed. (Manchester. MUP, 1999), p. 85.
Is The claim that pre-emptive self-defence can be used in order to interdict vessels supplying terrorists or in some other way contributes to a non-imminent attack must be rejected as an illegitimate expansion of self-defence under international law. See M. Boethe,
Although the carriage of WMD may be a violation of other rules of international law or be regarded by some States as unlawful, this does not amount to an Article 2(4) type violation. For this reason it is suggested that interdiction of vessels suspected of carrying WMD to other States based on article 19(a) is unwarranted.
These conclusions hold true only if the list of prejudicial activities set out in Article 19(2) is exhaustive, and this is by no means certain. A number of commentators regard the list to be exhaustive asserting that an unambiguous and objective definition of innocent passage is essential for it to work in practice.' The principal authority for such a view is the Joint Statement by the US and USSR on Innocent Passage, which holds the list in Article 19(2) to be exhaustive.' Although Churchill and Lowe note that this is likely to be influential on other States' practice and suggest that it is developing into a rule of custom, they refrain from concluding on the exhaustive nature of Article 19(2).2' Conversely, there are a number of commentators who do not regard the list to be exhaustive, although much of their concern relates to the
`Terrorism and the Legality of Pre-emptive Force' (2003) 14 European Journal of International Law 227, 231. Also T. Franck, `What Happens Now? The United Nations After Iraq' (2003) 607 AJIL 60.
21 Churchill and Lowe, supra note 17, pp. 85-7.
carriage of hazardous materials and substandard ships.' Despite the differing subject matter, this open-ended approach to Article 19(2) is preferable as a matter of treaty interpretation.' In the absence of conclusive subsequent practice, there is nothing in the language of Article 19 to suggest that only the listed activities render passage non-innocent. Moreover, an open-ended approach to Article 19(2) is congruent with the intention of the drafters of the provision.' Thus restrictions on the list were explicitly rejected during the drafting process.' It was also confirmed that Article 19(2) was subject to the ejusdem generis rule of interpretation.'
Although the list may be non-exhaustive, this cannot dispense with the requirement that the standard of innocence must be capable of objective determination. This position is consistent with the Corfu Channel case, where the Court focused on the manner of passage rather than any motive for it.' It is also
22 W.D. Burnett, 'Mediterranean Mare Clausum in the Year 2000?: An International Law Analysis of Peacetime Military Navigation in the Mediterranean' (1985) 35 Naval Law Review 75, 108; E.J. Molenaar, Coastal State Jurisdiction over Vessel Source Pollution (London, Kluwer Law International, 1998) 195; K. Hakapaa and E.J. Molenaar, `Innocent passage — past and present' (1999) 23 Marine Policy 131, 132; Colin B. Picker, 'Fishing for Answers in Canada's Inside Passage: Exploring the Use of the Transit Fee as a Countermeasure' (1996) 21 Yale Journal of International Law 349, 375; L.S. Johnson, Coastal State Regulation of International Shipping (Dobbs Ferry NY, Ocean Publications Inc, 2004), 64-6.
23 Articles 31-33 of the Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331.
25 Ibid.
26 Ibid, p. 171.
27 (1949) ICJ Rep. 1, 30. This has led some commentators to conclude that there is a presumption of innocent passage that may be rebutted
quite necessary to ensure a proper balancing of coastal State interests and navigation, and this can only be achieved through objectively determinable rules.' For it to be otherwise would be to render navigation contingent upon the subjective discretion of the coastal State, a position wholly at odds with the LOSC. Accordingly, a number of limits or conditions on the exercise of coastal State control over navigating vessels are suggested.
A first limitation is that the conduct rendering passage non-innocent must occur in the territorial sea.29 Thus passage cannot be suspended because of a risk of pollution.' Any non-innocent activity would, at best, have to be imminent. In the case of the PSI, the question of when the unlawful act takes place is complicated because although the use of WMD is unlawful, the mere carriage of such cargo is not. A second limitation is that the character of the passage must be manifestly non-innocent. Practical difficulties may arise because carriage of WMD cargoes does not manifest any external non-innocence. In this context the concerted efforts at controlling proliferation activities, exchanging information and security cooperation within the PSI may have a pivotal role to play. A third limitation is that coastal States shall not `discriminate in form or in fact against ships of any State or against ships carrying cargoes to, from or on behalf of any
by the coastal State according to the criteria in Article 19(2). See Rolph, supra note 19, p. 159 and Froman, supra note 19, p. 658.
28 See G. Fitzmaurice, 'Some Results of the Geneva Conference on the Law of the Sea' (1959) 8 ICLQ 73, 96-7.
10 D.R. Rothwell, 'Navigational Rights and Freedoms in the Asia Pacific Following Entry into Force of the Law of the Sea Convention' (1995) 35 Virginia Journal of International Law 587, 616. Cf. Van Dyke, who argues that, with respect to Article 19(2)(h), carriage of extremely risky cargos could be considered akin to a wilful act of serious pollution and so be prohibited. J.M. Van Dyke, 'Sea Shipment of Japanese Plutonium under International Law' (1993) 24 Ocean Development & International Law 399, 408.
State.'31 This is important because one of the assumptions underlying the PSI is that only certain States are engaged in the proliferation of WMD and related material. To maintain a pretext of legality any PSI activities must be potentially applicable to any vessel, and when exercised must be done so on the basis of reasonable evidence rather than simple conjecture about States of concern. A final limitation is the requirement for States Parties to exercise their rights and obligations in good faith and in a manner that would not constitute an abuse of right.' To the extent that these safeguards are fully observed then it may be open to argue that vessel interdiction under the PSI may be lawful in limited circumstances.
If Article 19(2) is not exhaustive, then the coastal State may enjoy a degree of latitude to determine whether the passage of a ship is prejudicial to its peace, good order or security. This has led some commentators to suggest that merely proscribing WMD proliferation as contrary to the security of the coastal State and other States is enough to overcome vessels' rights of innocent passage." However, one must question whether a mere breach of coastal State law could render passage non-innocent. If so, then coastal States could proscribe against such activities and seek to enforce this against all coastal traffic. The risk that such an approach poses to navigation are clear and runs counter to the emphasis of the LOSC on international standard setting within a conventional framework. Moreover Article 21 lists those matters over which coastal States can regulate and there is absolutely nothing to suggest that this includes a power to control cargos or legislate against the carriage of WMD or related materials. Furthermore Article 24 provides that coastal States shall not hamper innocent passage of foreign vessels except in accordance with the Convention. Clearly, only those laws drafted consistently with the other provisions
31 LOSC Article 24(1)(b).
32 LOSC Article 300
of Part II, section A of the LOSC can be enforced against foreign flagged vessels in the territorial sea and there is nothing to suggest that domestic law can be used to expand the authority of the coastal State to control the carriage of WMD or related material. To suggest a broad power to interdict vessels in such manner risks upsetting the careful balance of rights enshrined in Part II, section 3 of the LOSC and severely hampering well-established navigational freedoms.
Straits Used for International Navigation
Vessels enjoy a right of transit passage through straits used for international navigation. Under the LOSC this is defined as 'freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone'." The importance of maintaining free navigation through international straits is underlined by the absolute duty on coastal States not to hamper or suspend transit passage.' Although there is no requirement of innocence for such passage, transiting vessels are bound to refrain from the threat or use of force against States bordering the strait or in another manner which violates principles of international law embodies in the UN Charter." Under Article 38(3) vessels exceeding their right of transit passage by conducting an activity outside the scope of Article 38(2) or by breaching their duties under article 39 become subject to the other applicable provisions of the convention. Accordingly, a vessel which uses or threatens force against a strait State becomes subject to the regime of innocent passage and those considerations relevant to the territorial sea apply.
14
LOSC Article 38(2).
LOSC Article 44.
LOSC Article 39(1).
The Contiguous Zone
The contiguous zone is a belt of waters adjacent to the territorial sea, which 'may not extend beyond 24 nautical miles from the baseline from which the breadth of the territorial sea is measured'." In this zone 'the coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish the infringement of the above laws and regulation if committed within the territory or territorial sea.' 38
The coastal State may only exercise enforcement powers in the contiguous zone. Thus to intercept a ship carrying WMD or related materials, the State would have to enact a domestic customs law making such an activity unlawful. Moreover such a provision could only be enforced against ships heading to the territory or territorial sea, or have originated therein. Ships merely passing through the contiguous zone or even loitering in the contiguous zone could not be interdicted.
It must also be stressed that the range of interests that can be protected in the contiguous zone is limited. It does not include national security interests.' In so far as threats to the security of the coastal State are concerned, these are covered by general principles of international law and the Charter of the United Nations.' The majority of States have consistently rejected extended claims to security zones as a threat to freedom of navigation.' More specifically, Roach and Smith note that the US has protested excessive claims to security as
37 LOSC Article 33(2).
38 LOSC Article 33(1).
40
[1956] Yearbook of the International Law Commission, vol. I, pp. 183-5 and
274-5.
41
See Churchill and Lowe, supra note 17, p. 138.
a contiguous zone interest.' Clearly, the LOSC cannot provide a basis of an extended security jurisdiction to support PSI interdictions.
The Exclusive Economic Zone
The EEZ is designed to allocate economic benefits to the coastal States and provide them with the means for their protection.' It also facilitates the protection of the marine environment." As in other areas of the LOSC there is a critical balance between the interests of coastal States and navigation. Accordingly freedoms of the high seas are preserved to the extent that they are compatible with the above.' At no point does the LOSC provide explicit authority for a coastal State to proscribe and enforce any security interests against third State vessels in the EEZ." The absence of a detailed and complete attribution of rights and duties in the EEZ may be considered to leave the door open for the development of protective security measures, and suggestively, Article 59 provides that in absence of specific attribution, any such conflicts are to be resolved on 'the basis of equity and in light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties, as well as to the international community as a whole'. Where rights are unspecified or disputed, careful attention needs to be paid to the underlying balance of interests enshrined in the LOSC.
In the Saiga No. 2 case, the International Tribunal for the Law of the Sea (ITLOS) was required to ascertain the legality of Guinea's enforcement of its customs laws in its EEZ
42 J. Ashley Roach and Robert W. Smith, United States Responses
to Excessive Maritime Claims 2nd ed. (The Hague, Martinus Nijhoff, 1996),
166-172.
41 LOSC Article 56(1)(a).
44
LOSC Article 220(3).
45 LOSC Article 58.
46 Such matters are dealt with indirectly by Article 87-115 which are
incorporated into the EEZ regime by virtue of Article 58(2).
64 Yearbook
of New Zealand Jurisprudence Vol 8.1
against a vessel providing bunker fuel to fishing vessels.' In particular it had to consider whether such laws were consistent with Article 58 of the LOSC and whether they were further justified on grounds of 'public interest' or 'self-protection' ." The decision is important because these are policy grounds that proponents of the PSI might seek to make use of in justifying interdictions in the EEZ. Notably, such arguments were decisively rejected by ITLOS on the grounds that they would effectively result in the rights of other States being curtailed.' Clearly, the Tribunal was unwilling to entertain a notion of public interest that would allow coastal States to subjectively determine the rights of other States. ITLOS did consider that self-protection could amount to a defence of a 'state of necessity' which would justify measures otherwise illegal under the Convention. However, this was rejected on the grounds that Guinea had failed to supply evidence that 'its essential interests were in grave and imminent peril' .5° This suggests that coastal States have little scope to argue that the interdiction of vessels suspected of carrying WMD or related material in their EEZ is lawful.
High Seas
The high seas are an area of ocean space beyond the limits of national jurisdiction. The latitude of States to act on the high seas against foreign vessels suspected of engaging in the proliferation of WMD is much more limited on the high seas because the principal basis of authority on the high seas resides with the flag State. Many States will have little interest in or capacity to control weapons proliferation, and in most cases third States cannot exercise any police function without the consent of the flag State. It must be noted that although the flag State enjoys the power to interdict vessels flying its flag, it is not compelled to exercise such a power to
47
The MV "Saiga" (No. 2) Case (Saint Vincent and the Grenadines v.
Guinea) 1999
48
Ibid, para. 128-9.
49 Ibid, para 131.
50
Ibid, para. 135.
counter the proliferation of WMD and related materials. According to the Statement of Interdiction Principles, the flag State may board and search vessels flying its own flag in internal waters or territorial seas, or areas beyond the territorial seas of any other State, and to seize any such cargoes that are identified.' This is simply an incontrovertible reiteration of flag State jurisdiction.' It continues to provide that authority to board and search flag vessels, and the right to seize WMD-related cargoes, may be extended to other States. Again there is nothing contentious about this as States commonly enter into agreements allowing other States to interdict vessels for specific purposes.' Given that the Interdiction Principles are merely policy, States must enter into further agreements to make them binding.
There are exceptions to the 'exclusive' legislative and enforcement jurisdiction of flag States. Warships of third States may share jurisdiction with the flag State in the following situations: (1) the vessel is engaged in piracy;54 (2) the vessel is engaged in the slave trade;55 (3) the vessel is engaged in unauthorised broadcasting from the high seas;' (4) the vessel is without nationality;57 (5) the vessel's nationality is in doubt, and the ship is, in reality' of the same nationality as the warship:" (6) where rights interference are
51 Interdiction Principles, supra note 2, para. 4(b).
54 See LOSC
articles 100 and 110(1)(a).
55 LOSC Article
110(1)(b).
56 LOSC Articles 109 and
110(1)(c).
57 LOSC Article 110(1)(d).
58 LOSC
Article 110(1)(e).
66 Yearbook of New Zealand Jurisprudence Vol
8.1
derived from special treaties59; (7) hot pursuit and constructive presence; (8) taking measures to avoid pollution arising from maritime casualties"; and (9) the exercise of self-defence."
Jurisdiction in respect of piracy, slavery, unauthorised broadcasting and maritime casualties can be disregarded because they have no bearing at all on the issue of WMD, proliferation. Where the nationality of the vessel is uncertain, then once this is verified, the interdicting vessel may only take further action if the vessel is subsequently found to fly the same flag as the interdicting warship, or it is found to be engaged in an unlawful activity providing for universal jurisdiction.' The position of stateless vessels is less clear because the rule is not that any State may exercise jurisdiction over such vessels, but rather that no State may, as flag State, complain of any violation of international law by another State against the stateless vessel.' As Churchill and Lowe point out, this ignores the possibility of diplomatic
59 LOSC Article 110(1).
60 LOSC Article 111.
61 LOSC Article 221.
62
LOSC Article 301.
63 It was under these circumstances that the Sosan was intercepted by Spanish and US forces, being suspected of carrying missile parts from North Korea. On 9th December a Spanish warship, acting at the behest of US authorities and on the basis of US intelligence, intercepted the So-san, a North Korean owned but apparently stateless ship in the Arabian Sea approximately 100 miles off the coast of Yemen. A search of the vessel by Spanish marines revealed an unlisted cargo of fifteen Scud missiles, fuel cells and conventional explosive warheads hidden under bags of cement. The vessel was then handed over to US command. However, after Yemeni officials confirmed the purchase of the missiles for defensive purposes, the vessel was released. A US spokesman subsequently stated that 'there is no provision under international law prohibiting Yemen from accepting delivery of missiles from North Korea'. See F. Kirgis, Boarding of North Korean Vessel on the High Sea' ASIL Insights Dec 12, 2002. Available online at http://www.asil.org/insights/ insi gh94. htm
protection being exercised over the persons onboard the vessel, which leads them to suggest that only States with a jurisdictional nexus, for example in respect of piracy, should be able to extend and enforce its laws against the stateless vessel.' Although this may facilitate a more structured approach to jurisdiction on the high seas and be preferable as a matter of comity, it does not seem to limit States from acting against Stateless vessels as a matter of strict law. Accordingly, stateless vessels engaged in WMD proliferation activities may be subject to any States jurisdiction on the high seas, subject to any right of protection that the State whom the persons on board enjoy the nationality of may wish to claim. Of course, in light of the So-san incident, potential traffickers of WMD and related materials will be aware that they may receive greater protection by flying a genuine flag, than risk being interdicted as a stateless vessel.' Hot pursuit is limited to instances where the vessel pursued has committed an offence in a State's internal waters or territorial sea. Although the doctrine of constructive presence might be used to interdict a vessel on the high seas that is supplying another vessel with WMD that are to be brought into the territory of the coastal State, it cannot be used as an independent basis of authority for interdicting vessels acting alone on the high seas. Clearly, the rights in respect of stateless vessels, hot pursuit and constructive presence, self defence and rights derived from special treaties can provide only exceptional grounds for interdicting vessels suspected of proliferating WMD and related materials. As a result the use of treaties to provide interdiction powers is the most obvious and unproblematic means of providing authority to interdict non-flag vessels on the high seas. This approach is widely used in respect of controlling drug trafficking and has been given a more limited role in respect of high seas fishing. It is
Supra note 17, p. 214. For example, the US has asserted that drug trafficking aboard vessels threatens the security of the US and it has, accordingly asserted jurisdiction over stateless vessels engaged in drug trafficking. See US v. Martinez-Hidalgo [1993] USCA3 552; 993 F. 2d 1052, where the VI circuit affirmed the application of the Maritime Drug Law Enforcement Act 1986, 46 USCA 1903, to stateless vessels
See fn 63.
68 Yearbook of New Zealand Jurisprudence Vol 8.1
notable then that the US has already entered into agreements with three States with large shipping registries." One may also look forward to the amendments to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988 (SUA). The amendments seek to extend the boarding and enforcement provisions of SUA to vessels suspected of engaging in terrorist activity.'
TECHNICAL ASPECTS OF THE PSI
The Interdiction Principles commits participants to:
`Undertake effective measures, either alone or in concert with other states, for interdicting the transfer or transport of WMD, their delivery systems, and related materials to and from states and non-state actors of proliferation concern' 69
Before considering the specific provisions of the Interdiction Principles, it is worth noting that there are, at a very general level, difficulties in ascertaining whether or not proliferation activities are actually illegal. If proliferation is not illegal per se, then the efforts of the PSI are seriously undermined. The difficulty is that there are few, if any, formally binding regimes that clear delimit the legality of proliferation.' One might argue that Security Council Resolution 1540, which reaffirms that the proliferation of WMD 'constitutes a threat to international peace and security' and recognizes the universal need and responsibility to prevent WMD proliferation, supports proliferation control regimes.' However, such a construction of SC Res 1540 would be unwarranted, because it was merely designed to ensure that States effectively implement existing proliferation control measures under domestic and international law. It was not
67 See fn 4 and the accompanying text.
69 Statement of Interdiction Principles, para 1. Supra note 1.
70 Daniel H. Joyner, The Nuclear Suppliers Group: Part 1: History and
Functioning' (2005) International Trade Law and Regulation 33,
34.
71 S.Res/1540 (2004) 28 April 2004.
intended to establish new rules of law or jurisdiction to act against vessels suspected of proliferating WMD.' In this context it is notable that the only instruments that have achieved a degree of certainty about proliferation are the multilateral export control regimes, which are non-binding instruments under international law.73 At the heart of such regimes there is conflict between possession and proliferation, with the regimes only seeking to control the latter. Thus a general norm of prohibition is unlikely to find favour with many States, particularly in the EU and NATO.
The operative part of the Interdiction Principles obliges participants:
`(a) Not to transport or assist in the transport of any such cargoes to or from states or non-state actors of proliferation concern, and not to allow any persons subject to their jurisdiction to do so.
(b) At their own initiative, or at the request and good cause shown by another state, to take action to board and search any vessel flying their flag in their internal waters or territorial seas, or areas beyond the territorial seas of any other state, that is reasonably suspected of transporting such cargoes to or from states or non-state actors of proliferation concern, and to seize such cargoes that are identified.
(b) To seriously consider providing consent under the appropriate circumstances to the boarding and searching of its own flag vessels by other states, and to the seizure
72 Notably a provision designed to permit forcible interdiction of ships
was dropped from the resolution to secure its acceptance. See the comments by various states at the 4950th Meeting of the Security Council, 22 April 2004, UN Doc. S/PV.4950. In particular, the concerns of the Mr Requeijo Gaul, the Cuban representative, at p. 30 and Mr Wang, the Chinese representative, at p. 6.
71 The Australia Group, the Missile Technology Control Regime, the Nuclear
Suppliers Group, and the Wassenaar Agreement. For a commentary
on these regimes
see Daniel H. Joyner, 'Restructuring the Multilateral Export Control Regime
System' (2004) 9 Journal of Conflict and Security Law
181.
70 Yearbook of New Zealand Jurisprudence Vol 8.1
of such WMD-related cargoes in such vessels that may be identified by such states.
(d) To take appropriate actions to (1) stop and/or search in their internal waters, territorial seas, or contiguous zones (when declared) vessels that are reasonably suspected of carrying such cargoes to or from states or non-state actors of proliferation concern and to seize such cargoes that are identified; and (2) to enforce conditions on vessels entering or leaving their ports, internal waters or territorial seas that are reasonably suspected of carrying such cargoes, such as requiring that such vessels be subject to boarding, search, and seizure of such cargoes prior to entry.
(d) At their own initiative or upon the request and good cause shown by another state, to (a) require aircraft that are reasonably suspected of carrying such cargoes to or from states or non-state actors of proliferation concern and that are transiting their airspace to land for inspection and seize any such cargoes that are identified; and/or (b) deny aircraft reasonably suspected of carrying such cargoes transit rights through their airspace in advance of such flights.
(d) If their ports, airfields, or other facilities are used as transhipment points for shipment of such cargoes to or from states or non-state actors of proliferation concern, to inspect vessels, aircraft, or other modes of transport reasonably suspected of carrying such cargoes, and to seize such cargoes that are identified.'74
One of the principal difficulties with the PSI is its patent, but ambiguous, focus on 'States or non-State actors of proliferation concern'. On occasion North Korea, Iran and Syria have been explicitly identified as States of proliferation concern." Crucially, India Pakistan and Israel have been
74 Ibid, para 4.
75 John R. Bolton, 'The Proliferation Security Initiative: A
Vision Becomes Reality' Remarks to the First Anniversary Meeting of the
Proliferation Security Initiative, Krakow, Poland, May 31 2004. Text at http://www.state.gov/t/us/rm/33046.htm.
2005 Policing
the Oceans: The Proliferation Security Initiative 71
rejected as target States of concern." The focus on specific States presents an obstacle to the emergence of a general rule of international law, which by its very nature must be capable of general application and not focused upon specific States. As the ICJ noted in the North Sea Continental Shelf cases, `the provision concerned should, at all events potentially be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law' .77 This would exclude measures targeted at specific States. It is perhaps not surprising then that more recent statements by PSI officials have indicated that 'PSI efforts are not aimed at any one country, but at halting worldwide trafficking in WMD, delivery systems, and related materials', thus maintaining the prospect of a rule of custom emerging." In any event a more pressing concern is not the legal nuances concerning the targeted states, but the political ramifications of targeting a narrow range of States. Such an approach has damaging political connotations, by isolating target States and making them hostile to other diplomatic manoeuvres.
The Interdiction Principles focus on WMD, their delivery systems, and related material. The term WMD is not defined and is used interchangeably with the "chemical, biological and nuclear weapons". Although WMD is a much used term, there is no authoritative definition of WMD under international law. The UN Commission for Conventional. Armaments in 1948 refers to WMD weapons as:
"those which include atomic explosive weapons, radioactive material weapons, lethal chemical and biological weapons, and any weapons developed in the future which have characteristics comparable in
77
1969 ICJ Rep 3, para 72.
78 John R. Bolton, Remarks at Proliferation Security Meeting, Paris, Sept 4 2003. Text at www.state.gov/t/us/rm/23801.htm
destructive effect to those of the atomic bomb or other weapons mentioned above."79
An open-ended approach to this category of weapon is to be found GA Resolutions that have built upon this definition.' Also Security Council Resolution 687 of 3 April 1991 sets out those systems which Iraq was to abandon as part of its WMD programme and is similarly expansive. The benefit of this approach is that it allows policing parties maximal discretion as to their capacity to acts and it allows for the emergence of new weapons system with such destructive capacities. Such an expansive approach is often found in domestic law for the same reasons.'
If WMD is expansively defined, then this begs the question what are related materials. Presumably this refers to WMD components such as chemical weapon ingredients or sensitive dual-use equipment and technologies. The difficulty of controlling such materials is illustrated by the fact that North Korea, India, Pakistan and South Africa all managed to develop nuclear weapons through civilian nuclear programmes. If, as seems probable, dual use technologies and components cannot be separated according to civilian and military outputs, then focus of PSI activities needs to be carefully calibrated in order to ensure that legitimate transactions and trade are not obstructed. This can be achieved through cooperation and the drafting of more detailed guidelines on targeted materials and technology. For example, the Australia Group, an informal cooperative
79
UN Document S/C.3/32/Rev. 1 .
80
See GA Res. 51/37 of 10 December 1996 and GA Res 54/44 of 1 December
1999.
81
§2302 of the US Code defines weapon of mass destruction as 'any weapon or device that is intended, or has the capability, to cause death or serious bodily injury to a significant number of people through the release, dissemination, or impact of (a) toxic or poisonous chemicals or their precursors; (b) a disease organism; or (c) radiation or radioactivity. This definition has been expanded upon in a number of US States to include the use of industrial agents as weapons, or aircraft, vessels or vehicle which is used as a destructive weapon. See § 11417 of the California Penal Code.
venture between States aimed at ridding the world of chemical and biological weapons, has met regularly and has developed common control lists of dual-use chemicals, pathogens, toxins and equipment which are critical to chemical and biological weapons programmes.
Missile technology is, perhaps, the most problematic aspect of weapons proliferation because it provides the most strategic and effective means of delivering WMD. There is at present no multilateral treaty that regulates the development, possession, trade and proliferation of missile technology. Missile technology is by its nature susceptible to both civilian and military application. Moreover, the actual individual components may have many ordinary commercial uses. Thus it may be impossible to distinguish between legitimate and illegitimate uses of such components. For these reasons such materials have ordinarily fallen beyond the scope of international regulation. The exception to this is the nonbinding Hague International Code of Conduct Against Ballistic Missile Proliferation 2002, which seeks to bolster efforts to curb ballistic missile proliferation.' Inter alia, it urges States to participate in binding WMD proliferation regimes, not to support or assist States developing WMD programmes, and ensure that domestic missile programmes are fully transparent. The patent difficulty of focusing on target materials suggests that the interdiction of vessels purely on the basis of intelligence that a vessel is carrying a particular cargo would be illegitimate. Such intelligence would have to be combined with additional intelligence concerning the end users of such material.
There are indications that the PSI may also be focused on other types of cargo, such as illegal drugs or conventional arms that help keep states or non-state actors of proliferation concern financially afloat." However, this would be clearly
82 Text available at http://projects.sipri.se/expcon/hcocfinal.htm
83 Michael A Becker, 'The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea' (2005) 46 Harvard International Law Journal 131, 159.
contrary to international law, and it is notable that US officials have strenuously denied any such suggestions.'
The Interdiction Principles call upon States to take action at their own initiative or upon the request and good cause shown by another State against vessels suspected of shipping WMD or related material. This raises a number of points of interpretation. What does good cause mean? And what level of evidence is required to justify action against suspected vessels? The absence of a well-defined threshold of probable cause or reasonable suspicion for interdicting vessels is an area of concern. During peacetime, activities such as the PSI might be considered to form part of a more general police function against illegal activities or transnational crimes. Accordingly, any interdiction would be subject to rules that pertain to the issue of warrants and arrests. If, however, PSI activities are cast as part of a broader campaign of a 'War on Terror', then it is possible that threshold standards for action will be somewhat lower.
A further complicating factor is that any decision to interdict a vessel must be based upon sound intelligence, the gathering and formulation of which presents its own difficulties." Whilst the need to maintain a degree of secrecy about the scope and content of such intelligence on grounds of national security, this can lead to suspicion and lack of transparency, which becomes critical when the rights and interests of other States are at stake. This is particularly important given that the intelligence capacity of some western States has been shown to be quite flawed in recent times.' Unless such intelligence is genuine, unbiased and satisfies the threshold
84 Supra note 76.
85 See the 'Butler Report' - Report of a Committee of Privy Counsellors,
Review of Intelligence on Weapons of Mass Destruction (HMSO, 2004),
chapter 1.
86
See generally the Report of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, March 31 2005. Available online at http://www. wmd. govireport/wmd_report.pdf
for action then it likely to result in destabilising and politically harmful consequences.
It is paramount for the both legitimacy of the PSI in general and for individual interdictions that unbiased and specific intelligence about WMD movements is relied upon.
CONCLUSION
The PSI is a welcome initiative to the extent that it prevents the proliferation of weapons of mass destruction and related materials and it contributes to greater international security. Indeed, as early indications suggest, it may result in the safeguarding of navigation through greater inter-State cooperation.' However, the initiative must accord with existing international norms, and, in particular, with those concerning lawful uses of the sea. The initiative must not erode the carefully crafted and well-balanced system of rules enshrined in the LOSC. Indeed, PSI States need to be aware that any restriction of or interference with navigational rights is likely to lead to a degradation of their own navigational freedoms. The irony of the US, the greatest proponent of freedom of navigation, seeking to circumscribe this freedom will not be lost on some.
To suggest that the PSI is consistent with existing national and international authorities without explaining those authorities is problematic. This is because international law carefully circumscribes the interdiction of non-flag State vessels in order to protect shipping and trade from unwarranted interference. Accordingly, coastal States may only interdict vessels in quite limited circumstances. Freedom of navigation and the exclusivity of flag State jurisdiction are bedrock principles of the international law of the sea. These
87 See Stephen G. Rademaker, Assistant Secretary for Arms Control, Testimony before the House International Relations Committee, Subcommittee on International Terrorism and Non-proliferation, 9 June 2005. Available online at http://www.state.gov/t/acirlskm/ 47715.htm
principles are reaffirmed through a careful balancing of interests between coastal States and flag States throughout the LOSC. To suggest that there is a right to interdict vessels proliferating WMD amounts to an assertion of a new rule of international law in most cases. There is a significant burden on States asserting such a rule exists and it is one that proponents of the PSI have not successfully advanced to date. In those cases where there may be grounds for interdicting vessels there is a risk that the careful balance of interests maintained by the LOSC will be seriously disturbed. Accordingly, this review of existing maritime authorities suggests that the creation of bilateral treaty regimes is the best way forward for controlling the proliferation of WMD.
Lastly, jurisdictional issues aside, there are some problems with the actual substantive terms of the PSI regime. Whilst it is acknowledged that the PSI is merely a framework for coordinating responses, it is clear that more needs to be done to flesh out those provisions on the targeted category of actors, the targeted materials and the threshold criteria that permit specific interdictions. At the very least any interdictions need to be cautiously undertaken in practice if they are to avoid serious political and legal recriminations.
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