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Peter Glover[1]
Following the 11 September 2001 attacks on the United States the international community has been challenged by both state and non-state actors alike, drawn together through the cross roads of radicalism and technology, and willing to entertain the prospect of using weapons of mass destruction to achieve their desired goals.
With the interception, and subsequent release, of the North Korean vessel So San and its cargo of missile weaponry en route from North Korea to Yemen, gaps in the international community’s ability to address the proliferation of weapons of mass destruction became apparent to states concerned with the effect such proliferation will have on their own security and that of the broader international community. In response to this perceived gap, President George W. Bush announced on 31 May 2003, during a speech in Krakow, Poland, the Proliferation Security Initiative.
With the initiative directed at providing a more dynamic and pro-active approach to countering the proliferation of weapons of mass destruction, new measures outside existing international treaties have been required to realise the initiative’s objectives. One of these new measures has been the interdiction of foreign vessels on the high seas.
Since Australia is a member of the original international coalition of states supporting the PSI, the active participation of Australian forces in any interdiction of foreign vessels raises unique issues directly relevant to the long-held principle of freedom of navigation and other similar norms captured in the 1982 United Nations Convention on the Law of the Sea. It is the object of this paper to address these issues with a view to their legality and, where possible, propose a structure by which to navigate around identified legal obstacles.
With the demise of the former Soviet Union western governments have had to address a new world order perhaps somewhat optimistically described by the then President of the United Nations Security Council, British Prime Minister John Major, as a ‘safer, more equitable and more humane world’. Acutely aware of changes to state structures the Council President warned that ‘change, however welcome, has brought new risks for stability and security.’[2]
These new risks materialised with the 11 September 2001 terror attacks on the United States. Whilst the September 2001 attacks seared images into the heart of western values and dramatically changed the course of world events, the attacks were nonetheless of a conventional nature. Whilst conventional, the scale of the attacks provided the necessary impetus for a redefinition of the threat posed by the nexus of terrorism and weapons of mass destruction (WMD)[3] and the possibility that terrorist organisations could access such weapons through failed states or rogue regimes. Today the new world order is punctuated by what is described as the ‘crossroads of radicalism and technology’,[4] or the ‘fear that terrorists aided by despots will acquire and use nuclear, chemical or biological weapons.’[5]
As part of a ‘strategy for countering WMD, including their use and further proliferation,’ President George W. Bush outlined his National Strategy to Combat Weapons of Mass Destruction in December 2002. The Bush administration’s strategy rests on three pillars, namely counter-proliferation, non-proliferation and consequence management. According to the Bush administration, the three pillars of the strategy are ‘seamless elements of a comprehensive approach.’[6]
Within this approach the administration argues the US military and appropriate civilian agencies must ‘possess the full range of operational capabilities to counter the threat and use of WMD by states and terrorists’ who act against the United States, US military forces, friends and allies. The use of interdiction as a counterproliferation measure is expressly stated to be a part of both this strategy and The National Security Strategy of the United States.[7]
On 10 December 2002 Spanish naval forces operating in the Arabian Sea were ‘alerted by US intelligence to the presence of a suspicious cargo vessel in the Indian Ocean’[8] purportedly carrying cement from North Korea to Yemen. The vessel, the So San, ‘flew no flag and took evasive measures to avoid inspection’[9] when approached by Spanish forces. On boarding the So San,[10] Spanish and US forces discovered ‘15 complete Scud B missiles, 15 warheads, and missile fuel oxidizer’[11]
underneath 40,000 bags of cement.[12] The So San’s cargo manifest ‘did not list Yemen as a destination and did not list Scud missiles as among its cargo.’[13]
As the So San was not flying its flag, ‘had numerous problems with its registry and other paperwork’[14] and had ‘painted over its name’,[15] Article 110(1)[16] of the third United Nations Convention on the Law of the Sea (UNCLOS)[17]
enabled Spanish and US forces to board the vessel. Whilst it is possible to argue that the Law of the Sea does not bind the US or North Korea as neither State is a signatory to UNCLOS,[18]
this argument is somewhat weakened as the ‘International Law of the Sea has developed into customary international law that binds even non-parties to the Convention.’[19]
Whilst the So San was subsequently found to be registered under the Cambodian flag, the failure of the So San to fly its flag provided the legal justification for boarding the vessel.[20] The Scud missiles were, however, to prove more elusive to US authorities. As North Korea was not a party to the Missile Technology Control Regime,[21]
and there being no provision in UNCLOS or any other source of international law that places a general prohibition against transporting weapons unless a state has agreed to so constrain itself, there was, in the words of (then) White House spokesman Ari Fleischer, ‘no clear authority to seize the shipment of Scud missiles from North Korea to Yemen.’[22] Accordingly, on 11 December 2002, the So San was released with its cargo which arrived in Yemen on 14 December 2002.
Efforts to stem the flow of WMD have traditionally focused on formal international agreements such as the Treaty on the Non-Proliferation of Nuclear Weapons (NPT),[23]
the Chemical Weapons Convention (CWC)[24] and the Biological Weapons Convention (BWC).[25]
The release of the So San and its cargo of missiles therefore represented a perceived need for other ‘constraints to prevent the proliferation of weapons of mass destruction’ without reference to ‘existing multilateral legally binding regimes’.[26]
In response to this need, and in the shadow of the terrorist attacks on the French tanker Limburg[27]
in Ash Shihr and the USS Cole[28]
in Aden, President Bush, on 31 May 2003, in an address at Wawel Royal Castle, Krakow, Poland, announced the Proliferation Security Initiative.[29]
The Proliferation Security Initiative (PSI) is described by the British American Security Information Council as a ‘US-led proposal to establish a comprehensive enforcement mechanism which aims to restrict trafficking of weapons of mass destruction (WMD) and related materials in the air, on land and at sea.’[30] The PSI, according to US Under Secretary for Arms Control and International Security, John R. Bolton, ‘reflects the need for a more dynamic, proactive approach to the global proliferation problem’ and ‘envisions partnerships of states working in concert, employing their national capabilities to develop a broad range of legal, diplomatic, economic, military and other tools to interdict threatening shipments of WMD- and missile-related equipment and technologies.’[31]
The PSI originally comprised an ‘international coalition’[32] of 11 countries, namely Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, the United Kingdom and the United States.[33]
In addition to the original group of PSI participants more than 60 countries indicated support[34]
for the initiative. From its inception in 2003, the PSI, as a ‘set of activities, not a formal treaty-based organization’,[35]
has grown to a core group of 17 countries with the addition of ‘geographically significant Singapore’ and ‘politically significant Russia.’[36] Today more than 70 States,[37]
including all of the G-8 countries, have expressed ‘political support for the Statement of Interdiction Principles.’[38]
The focal point of the PSI is a set of politically binding interdiction principles. At the second meeting of the PSI in Brisbane on 9-10 July 2005 participants ‘reiterated their strong political support for the initiative’ and ‘underscored that the PSI is a global initiative with global reach.’ In addition to expressing support for the initiative the participants also agreed to ‘move quickly on direct, practical measures to impede the trafficking in weapons of mass destruction (WMD), missiles, and related items.’[39]
According to the US Department of State, the Brisbane meeting focused on:
defining actions necessary to collectively or individually interdict shipments of WMD or missiles and related items at sea, in the air or on land. Participants also emphasized their willingness to take robust and creative steps now to prevent trafficking in such items, while reiterating that actions would be consistent with existing domestic and international legal frameworks.[40] (emphasis added)
During a speech at the Brisbane meeting the Australian Minister for Foreign Affairs, Alexander Downer, reiterated Australia’s position of ‘continuing to support and engage in non-proliferation forums’ whilst at the same time stating Australia ‘has wholeheartedly joined the Proliferation Security Initiative as an important opportunity to advance the non-proliferation agenda.’[41] (emphasis added)
The results of the Brisbane meeting were crystallised in a Statement of Interdiction Principles agreed upon and made public during the third meeting of the PSI in Paris on 4 September 2003. The press statement accompanying the Statement of Interdiction principles states, in part:
The PSI is an initiative to develop political commitments and practical cooperation to help impede and stop the flow of WMD, their delivery systems and related materials to and from states and non State actors of proliferation concern. It is a dynamic process.
Participants affirmed that the PSI is consistent with and a step in the implementation of the UN Security Council Presidential statement of 31 January 1992, which states that the proliferation of all WMD constitutes a threat to international peace and security, and underlines the need to prevent proliferation.
[T]his initiative is consistent with international law, as well as national legal authorities.[42]
(emphasis added)
Released in a spirit of transparency, the Statement of Interdiction Principles calls on all States concerned with preventing proliferation of WMDs to:
• Effectively interdict WMD, delivery systems and related materials to and from entities of proliferation concern.
• Be able to exchange information rapidly on suspected proliferation actions, dedicate sufficient resources to the effort and maximise coordination with other interdiction participants.
• Strengthen national legal authorities to accomplish interdictions, as well as international laws and frameworks.
• Take specific actions in support of interdiction efforts, including:
(i) Forego transporting targeted cargoes or aiding in their transport.
(ii) Take the initiative to board and search any vessel under their jurisdiction in another state’s waters suspected of carrying targeted cargoes.
(iii) Seriously consider allowing its own vessels to be boarded and searched by other states when targeted cargo is suspected.
(iv) Take steps to board and search other states’ vessels in a state’s territorial waters and harbors. [sic]
(v) Require aircraft suspected of carrying targeted cargoes in transit over their airspace to land for inspection and possible seizure of such cargoes – or deny such aircraft transit rights in advance.
(vi) If their ports, airfields or other facilities are used to ship proliferant cargo to suspected proliferators, inspect the suspected cargo craft and seize such cargo.[43]
The full text of the Statement of Interdiction Principles is included as Annexure A. Consistent with this paper’s title and, to maintain the paper within manageable boundaries, the paper focuses exclusively on the PSI’s impact on maritime shipping and the Law of the Sea.
To date the PSI has conducted a number of training exercises. Australia, having been a ‘key driver of the initiative since its inception’[44]
has actively participated in a number of the training exercises, including exercise Pacific Protector[45]
in the Coral Sea. According to Senator Hill:
[t]he aim of the exercise is to practise intercepting, boarding and searching vessels suspected of illegal trafficking in weapons of mass destruction, their delivery systems and related materials.
Exercise Pacific Protector will further improve our capabilities to conduct actual maritime interdiction operations in partnership.[46]
More recently Australia participated in exercise Team Samurai in October 2004 alongside host country Japan and exercise Deep Sabre in August 2005 with host country Singapore.
From the Statement of Interdiction principles and extent of international participation in practice exercises it is clear the PSI is far-reaching and designed to cover the following maritime zones: internal waters, territorial seas, contiguous zones, exclusive economic zones and international waters (high seas). Due to structural constraints maritime straits will not be addressed.
Due to the geographical proximity of many States there is a need for maritime boundaries to be established so as to enable a coastal State to exercise, inter alia, sovereignty, sovereign rights, and jurisdiction.[47] UNCLOS divides the oceans into ‘two basic categories: national and international’ with the legal status of the waters determining the ‘rights and obligations of States and their vessels, public and private.’[48]
Within these categories there exist a number of subdivisions:
UNCLOS Article 8 defines internal waters as the ‘waters on the landward side of the baseline of the territorial sea’. Within these waters a coastal State ‘enjoys full territorial sovereignty’. As such, there exists no right of innocent passage as found in the territorial sea. [49]
UNCLOS permits a coastal State to claim a territorial sea up to 12 nautical miles beyond the baseline.[50] Article 2 extends the sovereignty of a coastal State ‘beyond its land territory and internal waters’ to the territorial sea, ‘subject to this Convention and to other rules of international law.’
UNCLOS also permits coastal States to lay more limited claims to a number of maritime zones in the waters which extend seaward of the territorial sea. The contiguous zone[51] is defined as a ‘zone of sea contiguous to and seaward of the territorial sea in which States have limited powers for the enforcement of customs, fiscal, sanitary and immigration laws.’[52] The contiguous zone may extend up to 24 nautical miles from the baseline from which the breadth of the territorial sea is measured.[53]
The Exclusive Economic Zone[54] (EEZ) is a maritime zone extending up to 200 nautical miles from the baseline from which the territorial sea is measured.[55] Within the EEZ the coastal State enjoys ‘extensive rights in relation to natural resources and related jurisdictional rights’, with third States enjoying the ‘freedoms of navigation, overflight by aircraft and the laying of cables and pipelines.’[56]
The high seas are those waters which lie beyond the jurisdiction of the coastal State. Pursuant to UNCLOS, the high seas are considered as ‘all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.’[57] Pursuant to Article 86, UNCLOS preserves, inter alia, six freedoms of the high seas, namely:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
These freedoms must be exercised, however, with ‘due regard for the interests of other States in their exercise of the freedom of the high seas’.[58]
According to Devon Chafee:
The International Law of the Sea is one of the most comprehensive and well-established bodies of international regulatory norms in existence. The Law of the Sea regime is buttressed by longstanding international norms, and formal legal agreements, critical to creating a more secure international environment.[59]
Permeating the fabric of UNCLOS and the Law of the Sea, with the exception of a State’s internal waters, is the long-held ‘non-interference principle’.[60] Against a degree of curtailing of the non-interference principle, the basic construct of the principle has been preserved within the provisions of UNCLOS (‘Annexure B’). This preservation of the non-interference principle means, for present purposes, the rights of innocent passage and freedom of navigation remain an ‘important expression of community values, despite the variety of legal mechanisms that place limits on that freedom.’[61]
Article 4(d) of the Statement of Interdiction Principles requires PSI participants, including Australia, to:
[T]ake 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.[62]
The text of this subparagraph raises a number of issues under UNCLOS due to the apparent conflict with the right of innocent passage and the freedom of navigation.
Whilst the focus of the paper is on the high seas, the paper will advance a brief discussion on the right of innocent passage in relation to the PSI given the right has long formed an integral part of the Law of the Sea. Innocent passage is defined in Article 19 with the principal requirement that such passage not be prejudicial to the ‘peace, good order or security of the coastal State.’ For a PSI interdiction to be legal in the territorial sea the interdicted ship must be engaging in passage that is not innocent. Whilst Article 19(2) details a list of activities not considered ‘innocent’, the difficulty for PSI participants is that the transport of WMD does not fit neatly within any of the exceptions listed in Article 19 given the absence of any express mention of the transportation of missiles or WMD components. The failure to fit neatly into one of the Article 19(2) exceptions does not, however, mean argument cannot be advanced to provide grounds for inclusion.
Article 19(2)(a) renders the passage of a foreign ship to be prejudicial to the peace, good order or security of a coastal State if it engages in the rather wide category of activity that includes:
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.
It might therefore be feasible to argue the seaborn carriage of WMD between states and non-state actors of proliferation concern, who desire to use them against a coastal State, would amount to a threat against the sovereignty, territorial integrity or political independence of the State. This concern has been raised in Australia with Federal Opposition Leader Kim Beazley warning that ‘foreign ships carrying dangerous bomb making materials were regularly plying coastal routes unchecked.’[63]
An expansion of this argument could also capture the shipment of WMD between states and non-state actors who desire to use them against a coastal State. Such action could be interpreted as a violation of the prohibition in the UN Charter which places a positive requirement on its members under Article 2(4) to:
refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.[64]
Consistent with this argument, a shipment in violation of Article 2(4) of the UN Charter could be construed as non-innocent.
For a coastal State to sustain these arguments it would need to demonstrate three points. First, the State must prove that the carriage of WMD constitutes a ‘threat or use of force against’ it.[65] The immediate difficulty with this burden of proof rests in the ‘ambiguities associated with dual-use items’. This difficulty is compounded with knowledge that ‘95 percent of the ingredients for WMD are dual-use in nature, having both civilian and WMD applications’ and that States ‘often seek to import these components under the guise of civilian nuclear programs or peaceful scientific and commercial activities.’ [66]
Second, the State would have to establish that the carriage of WMD threatens its ‘sovereignty, territorial integrity or political independence’ or violates the ‘principles of international law embodied in the UN Charter.’[67] The difficulty in discharging this burden rests with the knowledge that it is ‘not the mere transport of WMD that threatens a state’s sovereignty, but the use of these weapons against it.’[68]
Third, ‘if the coastal state argues that the transport violates the UN Charter, it cannot rely on the possibility that the WMD will be used at some time in the future.’[69] Article 19(2) places a geographical restriction on its operation to the territorial sea, whereas the greater concern amongst coastal authorities rests in either the transhipment of cargo in terminal facilities or the navigation of vessels near sensitive facilities in port zones. Should a vessel leave the territorial sea, Article 19 loses its normative effect, and leaves the coastal State in the position of having to argue the transport itself violates the principles of the UN Charter.[70]
On the assumption that a vessel engaged in the carriage of WMD throughout the territorial sea is engaged in ‘innocent passage’ as defined by Article 19 and, is otherwise in compliance with the administrative requirements under Article 23, it can be concluded that ‘ships carrying nuclear weapons are explicitly given the right of innocent passage.’[71]
The exception to this would be when, in accordance with the PSI, a country offers to ‘undertake a review and provide information on current national legal authorities to undertake interdictions at sea’ and to ‘strengthen authorities where as appropriate’.[72]
To date a number of countries, including Australia, are in default of compliance with this obligation due to conformance with existing international agreements.[73] In the case of Australia the relevant legislation is the Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) which gives effect to Australia’s obligations under the NPT.[74] With this conclusion bringing a degree of certainty as to the legality of PSI operations in the territorial sea, the remaining legal uncertainty centres on whether or not the initiative can be applied on the high seas given the principle of ‘freedom of navigation’ enshrined in UNCLOS.
It has been asserted that ‘freedom of navigation is the cornerstone of international intercourse’[75] and ‘is one of the oldest and most widely recognized principles of international law.’[76] Pursuant to Article 110, UNCLOS provides for five exceptions to the customary rule that ‘freedom of navigation on the high seas is absolute’.[77] These exceptions are:
(a) the ship is engaged in piracy;
(b) the ship is engaged in the slave trade;
(c) the ship is engaged in unauthorised broadcasting and the flag State of the warship has jurisdiction under article 109;
(d) the ship is without nationality; or
(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.[78]
As already noted, the Spanish interception of the So San was legally conducted under the authority of Article 110(1)(d). Excluding the noted exceptions, ‘[b]eyond the territorial sea all vessels enjoy, in principle, freedom of navigation under the exclusive jurisdiction of their flag State.’[79]
As noted, subparagraph 4(d) of the Statement of Interdiction Principles calls on all States … to join in similarly committing to stopping and or searching vessels in their contiguous zones. It is of importance to note that the Statement of Interdiction Principles does not make any express reference to the ‘high seas’ which is curious given the initiative, according to US Under-Secretary of State John Bolton, ‘could involve measures that include the interdicting and seizing of such “illicit goods” on the high seas’.[80]
Such interdiction on the high seas, and the attendant difficulties, have been clearly identified by Australia, given comments by the Minister for Foreign Affairs, Alexander Downer, who stated in 2003:
Secondly you are confronted with a very real difficulty in terms of vessels that might be going through the high seas because international law requires that those ships should not be intercepted.[81]
With the PSI extending its geographical reach beyond the territorial sea, it is therefore necessary to address the legality of vessel interception in the contiguous zone, the exclusive economic zone and the high seas.
As the contiguous zone is not part of the territorial sea the freedom of navigation applies to this zone. This freedom is, however, circumscribed by UNCLOS Article 33, which enables the coastal State to exercise the control necessary to ‘prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.’[82] Article 33 would therefore work to materially restrict any vessel interdiction within the contiguous zone as it would be difficult to envision how the transport of WMD and related materials could be neatly categorised within the said four exceptions. This leads to the conclusion that ‘any interdiction of foreign vessels in the contiguous zone without the consent of the flag state is probably illegal.’[83]
It has been stated that the EEZ ‘remains the maritime zone with perhaps the least degree of global consensus, at least as measured by state practice, over the proper content and extent of coastal state jurisdiction’.[84] Whilst Churchill and Lowe identify a number of departures from UNCLOS, these relate mostly to resource exploitation, the conduct of persons and the protection of offshore installations.[85] For present purposes, however, the principal grounds for interdiction of a vessel under UNCLOS would lie in Article 56 which confers on a coastal State ‘jurisdiction as provided for in the relevant provisions of this Convention with regard to … the protection and preservation of the marine environment.’[86] The relevant provisions in this instance being those found in Part XII.[87]
In particular, Article 220(5) permits the coastal State to subject a vessel to ‘physical inspection’ if there are clear grounds for believing a vessel navigating in the EEZ has violated an applicable international pollution rule or standard (under Article 220(3)). The coastal State must, however, exercise this right with ‘due regard to the rights and duties of other States’,[88] one such right being the freedom of navigation in Article 87. Any interdiction of a foreign vessel by a coastal State in the EEZ on these grounds would therefore be ‘very shaky’ and ‘legally unsupportable’.[89]
In 1927 in The Case of the S.S. “Lotus” the Permanent Court of International Justice (PCIJ) held that:
apart from certain special cases which are defined by international law – vessels on the high seas are subject to no authority except that of the State whose flag they fly. In virtue of the principle of the freedom of the seas, that is to say, the absence of any territorial sovereignty upon the high seas, no State may exercise any kind of jurisdiction over foreign vessels upon them.[90]
The case of the Lotus highlighted the customary international law position that the jurisdiction of the flag State over its vessels has always been regarded as primary and exclusive, ‘except in as far as another jurisdiction is conceded by a rule of law or by treaty.’[91] UNCLOS codifies this position in Article 92 by, save in exceptional circumstances, limiting ships on the high seas to ‘the flag of one State only’ and subjecting them to ‘its exclusive jurisdiction on the high seas.’[92] Whilst it is possible for a flag State to waive its exclusive jurisdiction by specific agreement, usually in the form of a treaty,[93] the circumstances in which this is done are usually restricted.
In the absence of a waiver from the target flag State, and noting the exceptions in UNCLOS Articles 95[94] and 96,[95] Article 110[96] prohibits a warship from boarding a foreign ship on the high seas unless one of the exceptions listed at the head of this section applies.
It can therefore be assumed that unless a ship carrying WMD falls into one of the above five categories it cannot be intercepted by a foreign warship. If this claim is accepted, a State wishing to pursue interdiction of a third party vessel suspected of carrying WMD may, in the alternative, justify boarding through reliance on Article 88 which reserves the high seas for peaceful purposes. By adopting an approach that WMD have devastating consequences,[97] their transport is arguably not for ‘peaceful purposes’ within the spirit of UNCLOS. States which then participate in such activities can be viewed as waiving their right to freedom of navigation under UNCLOS.[98] For example, Article 300 requires State Parties to ‘fulfil in good faith the obligations assumed under this Convention … which would not constitute an abuse of right.’ If the trafficking in WMD is considered an abuse of the freedom of navigation and a failure to act in good faith, the target State may be denied reliance on Article 87.
Having established that existing international law does not permit third party forces to interdict vessels on the high seas under the PSI, this paper will conclude by exploring a framework in which such interdictions could be advanced as legally permissible and, the impact such a framework would have on the world commercial fleet.
The PSI participants have repeatedly stated that interdiction activities will be undertaken ‘consistent with national legal authorities and relevant international law and frameworks’. According to the US Department of State, if a State ‘believes it does not have the legal authorities to act in a specific action, it may decline to participate.’[99] Having failed to ‘clearly put forward the legal reasoning in support of the measures they intend to implement under the name of the PSI’,[100] the question then becomes, what legal frameworks will facilitate a high seas interdiction within the eyes of the international community? In answer to this question, six proposals are advanced.
The United States has insisted it has the necessary authority to board vessels under a ‘general right of self-defense’ when acting on a ‘serious belief that the vessels carry WMD material’.[101]
This authority must, however, be read in light of Article 2(4) of the UN Charter, which contains a general prohibition on the use of military force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.[102]
An exception to Article 2(4) of the Charter is Article 51 and the right of individual or collective self-defence in the event of an armed attack against a member of the United Nations. In what is viewed as pushing the envelope of these two Articles, the September 2002 National Security Strategy of the United States states that:
The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively.[103]
The right of self-defence permitted to member states by Article 51 of the UN Charter is only to be exercised against an actual armed attack and is ‘widely considered the general rule.’[104] On this interpretation maintenance by the United States in acting ‘pre-emptively’ against the carriage of WMD in the name of self-defence would breach the UN Charter. There are, however, exceptions to the general rule. On 20 December 1837 British forces attacked the Caroline, a small American merchant steamer.[105]
In what has become known as the Caroline Case, it ‘demonstrates the existence of agreed principles limiting the circumstances in which force could be used in self-defence.’[106] Following the incident the then American Secretary of State, Daniel Webster, wrote to his British counterpart, Lord Ashburton, outlining the criteria he thought Great Britain could use to justify its actions. Webster stated, inter alia, that Great Britain was required to show ‘a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation’.[107] In light of the criteria for an exception to the use of armed force as established by the Caroline Case, it remains difficult to see how a PSI participant, like Australia, could successfully use the exception to justify an interdiction.
According to the Center for Defense Information ‘most states believe at the moment that only a UN resolution can authorize interception and search on the high seas, outside nations’ territorial waters’.[108]
President George W. Bush, in an effort to generate UN support, addressed the challenges of the proliferation of WMD at the General Assembly on 23 September 2003. In his address, President Bush stated:
Because proliferators will use any route or channel that is open to them, we need the broadest possible cooperation to stop them. Today, I ask the U.N. Security Council to adopt a new anti-proliferation resolution. This resolution should call on all members of the U.N. to criminalize the proliferation of weapons – weapons of mass destruction, to enact strict export controls consistent with international standards, and to secure any and all sensitive materials within their own borders. The United States stands ready to help any nation draft these new laws, and to assist in their enforcement.[109]
On 28 April 2004 the UN Security Council adopted Resolution 1540, which affirms that ‘proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security’.[110]
The preamble goes on to state that the UN is ‘gravely concerned by the threat of illicit trafficking in nuclear, chemical, or biological weapons’ and requires all States to ‘adopt and enforce appropriate effective laws which prohibit any non-State actor to … transport … nuclear, chemical or biological weapons’. In addition, paragraph 10 of Resolution 1540 requires ‘all States, in accordance with their national legal authorities and legislation and consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons’.
Whilst falling short of authorising the interdiction of WMD on the high seas, Resolution 1540 does ‘acknowledge the need for better legal and regulatory frameworks to prevent illicit trafficking to non-state actors, and in that sense supports the underlying rationale for the PSI’.[111]
PSI participants may identify wide State participation as a basis for creating a new international norm authorising interdiction on the high seas. Whilst the PSI is able to claim political support for the Statement of Interdiction Principles from more than 70 States,[112] it is considered unlikely such support would meet the necessary threshold for the establishment of a new custom in international law.
In their joint separate opinion in the Fisheries Jurisdiction case (Merits) Judges Forster, Bengzon, de Arcehaga, Singh and Ruda stated that to acquire the status of customary international law, State practice must be ‘common, consistent and concordant.’[113] With 191 members of the United Nations,[114]
it is difficult to see how PSI participants, with no Middle Eastern countries participating, can claim common, consistent and concordant State practice with respect to interdiction activities. Further, there must be evidence of opinio juris sive necessitates, or acceptance that the practice is binding in international law, as opposed to a rule of international comity.[115]
There must also be a sufficient degree of participation, especially on behalf of States whose interests are likely to be most affected by the rule.[116] Again, this threshold is unlikely to be reached given the absence of China, the only non-permanent member of the UN Security Council not to express support for the PSI,[117]
and North Korea, one of the principal States the initiative appears to be directed against.[118]
This leads to the conclusion there exists an absence of what the ICJ referred to in the Anglo-Norwegian Fisheries case as ‘the general tolerance of the international community’[119] for the development of a new rule of customary international law. Given the ‘popularity of the PSI’, however, the possibility of such a norm emerging cannot be discounted.
Participant States may consider amending UNCLOS to accommodate the threat posed by WMD proliferation. Whilst this course could provide a legal avenue for the interdiction of foreign vessels on the high seas, significant barriers exists to such a proposal. As a ‘constitution for the oceans’,[120] UNCLOS purports to be for the peaceful uses of the ocean, the equitable and efficient use of its resources and the conservation and preservation of the marine environment’[121] From this perspective UNCLOS is not directed at the transport of WMD or military activities such as the PSI and any proposal to amend the Convention would need to overcome this thematic hurdle.
Moreover, UNCLOS took decades to write. Any modification of UNCLOS would likely take years and arguably rest, therefore, outside the immediate goals of the PSI participants.
The International Maritime Organisation (IMO) is the UN body charged with, inter alia, promoting maritime safety.[122]
In the wake of the terrorist attack on the Italian liner Achille Lauro on 7 October 1985[123] the UN General Assembly in Resolution 40/61 called upon the IMO to ‘study the problem of terrorism aboard or against ships with a view to making recommendations on appropriate measures’.[124]
Under the auspices of the IMO the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) was opened for signature on 10 March 1988.[125]
At present the United Kingdom Government is
working in the International Maritime Organisation to secure amendment to the Convention for the Suppression of Unlawful Acts against the Safety of Marine Navigation (1988) [SUA Convention], which will make it an internationally recognised offence to transport WMD, their delivery systems and related materials on commercial vessels.[126]
If an appropriate amendment to the SUA Convention is secured this would arguably furnish the necessary legal foundations for the pursuit of interdiction activities by Australian forces under the PSI.
Arguably the most direct way of achieving the PSI’s stated objectives is through the employment of bilateral boarding agreements. Whilst the use of such agreements is not new, having been used by the British during the 19th century to curb the international slave trade by providing ‘reciprocal rights of visit and search over vessels in parts of the high seas’,[127] the present agreements seek to ‘clarify the grounds upon which PSI members may request visit and search rights and streamline the procedures necessary for flag state authorisation of such actions.’[128]
With the aegis of the PSI being the bilateral boarding agreements, the United States appears to be pursuing a ‘seafaring policy that can be applied selectively … in ways that circumvent and damage the objectives of UNCLOS.’[129] To date the United States has secured a number of bilateral boarding agreements with countries including Liberia, Panama, the Marshall Islands, Croatia, Belize and Cyprus.[130]
According to the US Department of State, the addition of Cyprus means that more than 60 per cent of global commercial tonnage is now subject to ‘rapid action consent, procedures for boarding, search and seizure’.[131]
It is important to note, however, that no other PSI participant has concluded similar agreements. The absence of such a ‘piggyback’ agreement onto US agreements therefore materially restricts the right of Australian naval forces from interdicting a foreign vessel suspected of carrying WMD on the high seas.
UNCLOS furnishes ships with the rights of innocent passage and freedom of the seas. Today, world seaborne trade continues to expand[132] with over 90 per cent of world trade carried by sea.[133]
Whilst there are difficulties in placing a monetary figure on the value or volume of world seaborne trade[134]
the United Nations Conference on Trade and Development estimates the ‘operation of merchant ships contributes about US$380 billion in freight rates within the global economy, equivalent to about 5% of total world trade’.[135] As of 1 January 2005 the world trading fleet was made up of 46,222 ships with a combined gross tonnage of 597,709,000 tonnes.[136]
Because of the international nature of the industry and the volume and value of trade carried at sea, emphasis is duly placed on the importance of efficiency and reliance on a global maritime regulatory framework.[137] Should Australia or another PSI participant initiate boarding vessels on the high seas outside of the guidelines advanced, such interdictions would carry the material risk of harassing legitimate shipping, disrupting the veins of international commerce, and threatening the very fabric which makes up the constitution for the oceans: UNCLOS.
The threat to the international community through the proliferation of WMD has been recognised by both individual states and the wider international community alike. Whilst agreement can arguably be reached on this point, the methods available to deal with the threat have not enjoyed the same degree of international consensus.
In the absence of support from the wider international community, for international law to maintain its integrity it is of primary importance that any action taken to address the proliferation of WMD be confined to existing norms and treaties. Whilst the PSI arguably reflects a positive development in the direction of arms control and stemming proliferation, it is presented this has been at the expense of both customary international law and the numerous articles within which support and uphold the long-held principle of the freedom of navigation. Any state-sanctioned action directed at interdicting foreign vessels on the high seas in compliance with the PSI Statement of Interdiction Principles would therefore run the risk of breaching international law and leave the authorising state liable to a claim in compensation.
Whilst it is argued PSI maritime interdiction activities breach international law, a state intent on pursuing such interdiction activities has an array of options available by which to chart a course around the rocks of illegality. Should Australia continue to maintain a core involvement in the PSI such options should be explored as a matter of priority in the interests of preserving the life-lines of international trade and the integrity of international law[138]
Statement of Interdiction Principles137
1.
1. 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. ‘States or non-state actors of proliferation concern’ generally refers to those countries or entities that the PSI participants involved establish should be subject to interdiction activities because they are engaged in proliferation through: (a) efforts to develop or acquire chemical, biological, or nuclear weapons and associated delivery systems; or (b) transfers (either selling, receiving, or facilitating) of WMD, their delivery systems, or related materials.
2. Adopt streamlined procedures for rapid exchange of relevant information concerning suspected proliferation activity, protecting the confidential character of classified information provided by other states as part of this initiative, dedicate appropriate resources and efforts to interdiction operations and capabilities, and maximize coordination among participants in interdiction efforts.
3. Review and work to strengthen their relevant national legal authorities where necessary to accomplish these objectives, and work to strengthen when necessary relevant international laws and frameworks in appropriate ways to support these commitments.
4. Take specific actions in support of interdiction efforts regarding cargoes of WMD, their delivery systems, or related materials, to the extent their national legal authorities permit and consistent with their obligations under international law and frameworks, to include:
(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 concerns, and to seize such cargoes that are identified.
(c) 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 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.
(e) At their own initiative or upon the request and good cause shown by another state, to
(1) 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
(2) deny aircraft reasonably suspected of carrying such cargoes transit rights through their airspace in advance of such flights.
(f) If their ports, airfields, or other facilities are used as trans-shipment 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.
1.
Preservation of the Non-Interference Principle in UNCLOS
|
Preservation of the Non-Interference Principle in
UNCLOS138
|
|
|
UNCLOS Article
|
Principle
|
|
Article 17
|
Preserving the right of all States vessels to enjoy the right of
innocent passage through the territorial sea.
|
|
Article 24
|
Restricting coastal States from interfering with innocent passage in the
territorial sea.
|
|
Article 27
|
Limiting coastal State grounds for exerting criminal jurisdiction over
foreign ships engaged in innocent passage.
|
|
Articles 42 & 44
|
Restricting coastal States from interfering with transit passage.
|
|
Article 52
|
Restricting archipelagic States from interfering with innocent passage in
archipelagic waters.
|
|
Article 58
|
Restricting coastal States from denying Article 87 high seas freedoms to
ships in the EEZ.
|
|
Article 60(7)
|
Restricting coastal States from interfering with international navigation
through the establishment of ill-placed artificial islands,
installations, or
structures.
|
|
Article 78
|
Restricting coastal States from unjustifiable interference with navigation
in the exercise of rights over the continental shelf.
|
|
Article 87
|
Guaranteeing freedom of the high seas to all States, including freedom
of navigation and overflight.
|
|
Article 89
|
Invalidating claims of sovereignty over the high seas.
|
|
Article 90
|
Providing every State with the right to sail ships flying its flag on the
high seas.
|
|
Articles 95 & 96
|
Providing immunity to warships and non-commercial government ships on the
high seas.
|
|
Article 116
|
Reaffirming a qualified right to fish on the high seas.
|
|
Article 193
|
Restricting external interference with coastal State exploitation of its
own resources.
|
|
Article 194(4)
|
Restricting States taking anti-pollution measures from unjustifiably
interfering with the activities of other States.
|
|
Article 226
|
Restricting the ability of a State to delay a foreign vessel in the course
of investigation.
|
|
Article 261
|
Restricting States undertaking scientific research from interference with
international shipping routes.
|
[1] Peter Glover is a Melbourne based solicitor and holds a Master Class 1 certificate of competency.
[2] Stockholm International Peace Research Institute, Note by the President of the Security Council S/23500 (2005) <http://projects.sipri.se/cbw/docs/cbw-unsc 23500.html viewed 24 November 2005.
[3] Meaning nuclear, chemical or biological weapons.
[4] President George W. Bush, ‘Graduation Speech at West Point United States Military Academy’. Speech delivered at the graduation ceremony of West Point military cadets, West Point, New York, 1 June 2002.
[5] A Persbo & I Davis, ‘Sailing Into Unchartered Waters? The Proliferation Security Initiative and the Law of the Sea’, BASIC Research Report, no. 2, 2004, British American Security Information Council, 2004, p. 26.
[6] The White House, National Strategy to Combat Weapons of Mass Destruction, 2002, p. 2. Available at <http://www.whitehouse.gov/news/releases/2002/12/WMDStrategy.pdf viewed 24 November 2005.
[7] The White House, The National Security Strategy of the United States of America, 2005, p. 14. Available at <http://www.whitehouse.gov/nsc/nss.pdf viewed 24 November 2005.
[8] MA Becker, ‘The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea’, Harvard International Law Journal, vol. 46, 2005, p. 152.
[9] SE Logan, ‘The Proliferation Security Initiative: Navigating the Legal Challenges’, Journal of Transnational Law & Policy, vol. 14, no. 2, 2005, p. 253.
[10] The boarding operation took place 600 nautical miles from the coast of Yemen. See MA. Becker, loc. cit.
[11] J Joseph, The Proliferation Security Initiative: Can Interdiction Stop Proliferation?, Arms Control Association, 2004 <http://www.armscontrol.org/act/ 2004_06/Joseph.asp?print viewed 21 November 2005.
[12] J Granoff, J Harrington & BD Jenkins, ‘Arms Control and National Security’, The International Lawyer, vol. 38, no. 2, 2004, p. 2.
[13] J King et al., ‘Spain: U.S. apologises over Scud ship’, 2002, <http://edition.cnn.com/2002/WORLD/asiapcf/ east/12/12/missile.ship/ viewed 21 November 2005.
[14] AC Winner, ‘The Proliferation Security Initiative: The New Face of Interdiction’, The Washington Quarterly, vol. 28, 2, 2005, p. 131.
[15] Becker, loc, cit.
[16] Right of visit.
[17] United Nations Convention on the Law of the Sea, opened for signature on 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) <http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm viewed 24 November 2005.
[18] United Nations, Chronological list of ratifications of, accessions and successions to the Convention and the related Agreements as at 20 September 2005, 2005, <http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm#The United Nations Convention on the Law of the Sea viewed 20 November 2005.
[19] SS Yang, Legal Basis for State Interception of Shipments on High Seas: Legality of the Naval Interdiction under the ‘Proliferation Security Initiative’, Thesis, Brooklyn Law School, 2003 p. 7. Available at <http://www.lcnp.org/disarmament/MEMO NK_interdiction.PDF viewed 24 October 2005.
[20] UNCLOS, art 110(1)(d), op. cit.
[21] The Missile Technology Control Regime <http://www.mtcr.info/english/ viewed 24 November 2005. Not being a member of the Missile Technology Control Regime it is arguable North Korea had a ‘right to sell missiles, and probably has sold them to Iran, Pakistan, Syria and others.’ See Granoff et al., loc, cit.
[22] J King et al., loc. cit.
[23] Treaty for the Non-Proliferation of Nuclear Weapons, opened for signature 1 July 1968, 21 U.S.T. 483, 729 U.N.T.S. 161 (entered into force 5 March 1970). Note on 11 January 2003 North Korea announced its intention to withdraw from the Treaty and accordingly relieve itself of formal obligations not to engage in the trafficking of WMD. See FL Kirgis, North Korea’s Withdrawal From the Nuclear Nonproliferation Treaty (2003) The American Society of International Law <http://www.asil.org/insights/insigh96.htm viewed 24 November 2005.
[24] Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature on 13 January 1993, 1974 UNTS 317 (entered into force 29 April 1997).
[25] Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, signed at Washington, London and Moscow 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975).
[26] Granoff et al., loc, cit.
[27] The Institute for Counterterrorism, French Tanker Explosion Confirmed as Terror Attack (2002) <http://www.ict.org.il/spotlight/det.cfm?id=837 viewed 18 September 2005.
[28] US Department of Defense, DoD USS Cole Commission Report – Executive Summary, 2001, <http://www.defenselink.mil/pubs/cole20010109.html viewed 25 November 2005.
[29] The White House, Statement on Proliferation Security Initiative, 2003, <http://www.whitehouse.gov/news/ releases/2003/09/20030904-10.html viewed 20 November 2005.
[30] Persbo & Davis, op. cit., p. 4.
[31] Testimony to Committee on International Relations, United States House of Representatives, Washington, D.C., 4 June 2003 (John R. Bolton) <http://wwwa. house.gov/international_relations/108/bolt0604.htm viewed 25 November 2005.
[32] Granoff et al., loc. cit. p. 3.
[33] RT Grey Jr., ‘North Korea up in Arms’ The Washington Times (Washington, DC) 14 August 2003. Available at <http://www.gsinstitute.org/archives/ 000186.shtml viewed 20 October 2005.
[34] US Department of State, Japanese Regional Proliferation Security Initiative (PSI) Maritime Interdiction Exercise (Team Samurai ‘04), 2004, <http://www.state.gov/t/np/rls/fs/37371.htm viewed 26 November 2005.
[35] US Department of State, What is the Proliferation Security Initiative?, 2004, <http://www.state.gov/t/np /rls/other/34726.htm viewed 26 November 2005.
[36] Winner, op. cit., p. 135.
[37] A complete list of all of the countries showing support for the initiative and its principles has never been disclosed. See F Pothier, The Proliferation Security Initiative: Towards a New Anti-Proliferation Consensus? 2004, British American Security Information Council <http://www.basicint.org/pubs/ Notes/BN041118.htm viewed 26 November 2005.
[38] GH Oosthuizen & E Wilmshurst, Terrorism and Weapons of Mass Destruction: United Nations Security Council Resolution 1540, Briefing Paper 04/01, Chatham House, 2004, p. 8. Available at <http:// www.riia.org/pdf/research/il/BP0904.pdf viewed 18 November 2005.
[39] US Department of State, Proliferation Security Initiative: Chairman’s Statement at the Second Meeting 2003, <http://www.state.gov/t/np/rls/other/25377.htm viewed 25 September 2005.
[40] ibid.
[41] The Hon. Alexander Downer, MP, ‘Weapons of Mass Destruction: The Greatest Threat to International Security’, Speech delivered at the Proliferation Security Initiative, Brisbane, 9 July 2003.
[42] Ministère des Affaires Etrangères, Proliferation Security Initiative: Statement by the Ministry of Foreign Affairs Spokesperson, 2003, <http://www. diplomatie.gouv.fr/actu/article.gb.asp?ART=36865 viewed 26 November 2005.
[43] US Diplomatic Mission to Italy, White House Statement, Facts on Proliferation Security, 2003, <http://www.usembassy.it/file2003_09/alia/a3090518.htm viewed 25 September 2005.
[44] Department of Foreign Affairs and Trade, Proliferation Security Initiative (PSI), 2005, <http://www.dfat.gov. au/globalissues/psi/ viewed 25 September 2005.
[45] 12-14 September 2003. See Proliferation Security Initiative, Past Exercises, 2005, <http://www. proliferationsecurity.info/exercises.php viewed 25 November 2005.
[46] Senator the Hon. Robert Hill, ‘Exercise Pacific Protector’, Press Release, 9 September 2003, <http://www.minister.defence.gov.au/Hilltpl.cfm?CurrentId=3111 viewed 27 November 2005.
[47] RR Churchill & AV Lowe, The Law of the Sea, 3rd edn, 1999, p. 181.
[48] JK Elsea, ‘Weapons of Mass Destruction Counterproliferation: Legal Issues for Ships and Aircraft’, CRS Report for Congress, Federation of American Scientists, 2003, 11. Available at <http://www.fas.org/ spp/starwars/crs/RL32097.pdf viewed 20 October 2005.
[49] Churchill & Lowe, op. cit., p. 61.
[50] UNCLOS, art 3.
[51] UNCLOS, art 33. UNCLOS, art 33, retains the contiguous zone and gives coastal States the same powers as they have under Art. 24 of the 1958 Territorial Sea Convention, with the limited exception found in Art. 303(2).
[52] Churchill & Lowe, op. cit., p. 132.
[53] UNCLOS, art 33(2).
[54] UNCLOS, art 55.
[55] UNCLOS, art 57.
[56] Churchill & Lowe, op. cit., p. 160.
[57] UNCLOS, art 86.
[58] UNCLOS, art 87(2).
[59] D Chafee, Freedom or Force on the High Seas? Arms Interdiction and International Law, 2003, http://www.wagingpeace.org/articles/2003/08/15_chaffee_freedom-of-force.htm viewed 28 November 2005.
[60] MS McDougal & WT Burke, The Public Order of the Oceans – A Contemporary International Law of the Sea, 1962, p. 869.
[61] Becker, op. cit., p. 175.
[62] Ministère des Affaires Etrangères, Statement of Interdiction Principles, 2003, <http://www.diplomatie. gouv.fr/actu/article.gb.asp?ART=36866 viewed 26 November 2005.
[63] K Wong, ‘Maritime Security Warning’, Australian Financial Review, Sydney, 2 September 2005, p. 5. Mr Beazley’s comments were made in the shadow of the passage from Newcastle to Gladstone of an Antiguan-flagged vessel carrying 3,000 tonnes of ammonium nitrate, an agricultural fertiliser that has been used in terrorist bombings.
[64] United Nations, Charter of the United Nations, 2005, <http://www.un.org/aboutun/charter/ viewed 28 November 2005.
[65] UNCLOS, art 19(2)(a).
[66] ME Beck, ‘The Promise and Limits of the PSI’, The Monitor, vol. 10, no. 1, 2004, p. 16.
[67] UNCLOS, art 19(2)(a).
[68] Logan, op. cit., p. 259.
[69] Logan, op. cit., p. 260.
[70] A foreign vessel engaged in the carriage of nuclear or other inherently dangerous or noxious substances is required to comply with the administrative requirements under Article 23. See UNCLOS, art 23.
[71] Bipartisan Security Group, The Proliferation Security Initiative – The Legal Challenge, Policy Brief, Bipartisan Security Group, 2003, p. 2. Available at <http://www.gsinstitute.org/gsi/pubs/09_03_psi_brief.pdf viewed 25 November 2005.
[72] US Department of State, Proliferation Security Initiative Frequently Asked Questions (FAQ) <http://www.state.gov/t/np/rls/fs/46839.htm viewed 25 September 2005.
[73] Persbo & Davis, op. cit., p. 39.
[74] Treaty for the Non-Proliferation of Nuclear Weapons, opened for signature 1 July 1968, 21 U.S.T. 483, 729 UNTS 161 (entered into force 5 March 1970). Note on 11 January 2003 North Korea announced its intention to withdraw from the Treaty and accordingly relieve itself of formal obligations not to engage in the trafficking of WMD. See Kirgis, op. cit.
[75] R Lapidoth, ‘Freedom of Navigation and the New Law of the Sea’, Israel Law Review, vol. 10, 1975, p. 456.
[76] ibid., p. 458.
[77] IA Shearer, ‘Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels’, International and Comparative Law Quarterly, vol. 35, 1986 p. 336.
[78] UNCLOS, art 110(1)(a)-(e).
[79] Churchill and Lowe, op. cit., p. 264.
[80] D Ensor, U.S. gets tough over WMD trade, 2003, <http://www.cnn.com/2003/US/12/02/wmd. warning/ viewed 25 September 2005.
[81] Downer, loc. cit.
[82] UNCLOS, art 33(1)(a).
[83] Logan, op. cit., p. 266.
[84] Becker, op. cit., p. 196.
[85] Churchill & Lowe, op. cit., pp. 171-2.
[86] UNCLOS, art 56(1)(b)(iii).
[87] Protection and Preservation of the Marine Environment.
[88] UNCLOS, art 56(2).
[89] Logan, op. cit., pp. 266-7.
[90] The Case of the S.S. Lotus (France v Turkey), 1927, P.C.I.J. Ser. A., No. 10, 4, 25. Available at <http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus/option_ii/1927.09.07_lotus.pdf viewed 28 November 2005.
[91] Shearer, op. cit., p. 339.
[92] UNCLOS, art 92(1).
[93] Churchill & Lowe, op. cit., p. 218. For example, the US and the UK concluded an agreement in 1981 to facilitate the interdiction by the US in defined areas of the Caribbean British-flag vessels suspected of trafficking in drugs. See Churchill & Lowe, op. cit., p. 219.
[94] Immunity of warships on the high seas.
[95] Immunity of ships used only on government non-commercial service.
[96] Right of visit.
[97] For the effect of a crude nuclear terrorist attack on New York City see Persbo & Davis, op. cit., p. 36.
[98] Logan, op. cit., p. 267.
[99] US Department of State, Proliferation Security Initiative Frequently Asked Questions (FAQ), loc, cit.
[100] Yang, op. cit., p. 6.
[101]R Weiner, Proliferation Security Initiative to Stem Flow of WMD Materiel (sic), 2003, Center for Nonproliferation Studies, <http://cns.miis.edu/pubs/ week/030716.htm viewed 10 November 2005.
[102]Charter of the United Nations art 2(4).
[103]The National Security Strategy of the United States of America, September 2002. Available at <http://www. whitehouse.gov/nsc/nss.pdf viewed 18 November 2005.
[104]Persbo & Davis, op. cit., p. 82.
[105]The Avalon Project, Webster-Ashburton Treaty – The Caroline Case, 2005, Yale Law School <http://www. yale.edu/lawweb/avalon/diplomacy/britain/br-1842d. htm viewed 23 November 2005.
[106]T McCormack, ‘The Use of Force’ in S Blay, R Piotrowicz & M Tsamenyi (eds), Public International Law: An Australian Perspective, 2nd edn, 2005, p. 225.
[107]The Avalon Project, loc. cit.
[108]C Robinson, The Proliferation Security Initiative: Naval Intervention Bush-Style, 2003, Center for Defense Information, <http://www.cdi.org/friendlyversion/ printversion.cfm?documentID=1667 viewed 2 October 2005.
[109]The White House, President Bush Addresses United Nations General Assembly, 2003, <http://www. whitehouse.gov/news/releases/2003/09/20030923-4.html viewed 12 October 2005.
[110]Resolution on the Non-proliferation of Weapons of Mass Destruction, UNSCR 1540, UN Doc S/Res/1540, 2004, available at <http://daccessdds.un.org/doc/ UNDOC/GEN/N04/328/43/PDF/N0432843.pdf?OpenElement viewed 26 October 2005.
[111]HN Warden IV, Overcoming Challenges to the Proliferation Security Initiative, Master of Arts in Security Studies Thesis, Naval Postgraduate School, 2004, p. 42.
[112]Oosthuizen & Wilmshurst, loc. cit.
[113]Fisheries Jurisdiction (United Kingdom v Iceland) (Merits) [1974] ICJ Rep 3, 50 (para. 16).
[114]As at 28 November 2005. See United Nations, List of Member States, 2005, <http://www.un.org/Overview/ unmember.html viewed 28 November 2005.
[115]North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark and The Netherlands) (Merits) [1969] ICJ Rep 3.
[116]ibid.
[117]China has stated that Article 110 renders the PSI impermissible. See DA Simon, The Proliferation Security Initiative: What Comes Next? A Research Report Submitted to Air Force Fellows, Air University, 2005, p. 13. Available at <http://www.wcfia.harvard. edu/fellows/papers/2004-05/simon.pdf viewed 18 October 2005.
[118]C Kremmer, ‘High Stakes on the high seas in Korean blockade’, Sydney Morning Herald (Sydney) 12 July 2003. Available at <http://www.smh.com.au/articles/ 2003/07/11/1057783354653.html viewed 25 September 2005.
[119]Anglo-Norwegian Fisheries (United Kingdom v Norway) (Merits) [1951] ICJ Rep 116.
[120]TTB Koh, ‘A Constitution for the Oceans.’ Remarks by TTB Koh of Singapore – President of the Third United Nations Conference on the Law of the Sea, Montego Bay, 6 and 11 December 1982.
[121]UNCLOS, preamble.
[122]International Maritime Organization, Introduction to IMO, 2005, <http://www.imo.org/home.asp viewed 23 October 2005.
[123]The hijacking took place approx. 30 nautical miles off Port Said and resulted in the death of an American passenger. See G Plant, ‘The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation’, 1990, International and Comparative Law Quarterly, vol. 39, p. 27.
[124]GA Res 40/61, 108th plen mtg, UN Doc A/Res/40/61 (1985) para. 13. Available at <http://www.un.org/ documents/ga/res/40/a40r061.htm viewed 23 October 2005.
[125]The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation entered into force on 1 March 1992.
[126]Select Committee on Foreign Affairs Sixth Report, The Proliferation Security Initiative (PSI), 2005, The United Kingdom Parliament <http://www.publications. parliament.uk/pa/cm200405/cmselect/cmfaff/36/3612.htm#note548 viewed 28 November 2005.
[127]In particular the 1890 General Act for the Suppression of the Slave Trade. See Churchill & Lowe, op. cit., p. 212.
[128]Becker, op. cit., p. 179.
[129]D Chaffee, ‘Freedom or Force on the High Seas? Arms Interdiction and International Law’, 2004, Science for Democratic Action, vol. 12, no. 3, p. 7.
[130]Federal Information & News Dispatch, Cyprus, U.S. Sign Counterproliferation Ship-boarding Pact – New agreement does not apply to third-party states’ vessels, 2005, US Department of State, <http://global.factiva. com.ezproxy.library.uq.edu.au/arch.display.asp viewed 25 September 2005.
[131]Rajesh Joshi, ‘Cyprus signs up to US ship boarding security initiative’, Lloyd’s List (New York), 27 July 2005. Available at <http://globalfactiva.com.ezproxy. library.uq.edu.au/en/arch/display.asp viewed 25 September 2005.
[132]Over the last 30 years maritime trade has increased 220 percent, from 2.5 billion tons of cargo in 1970 to 5.5 billion tons in 2002. See B Coffin, ‘Rough Water’, Risk Management, vol. 50, no. 3, 2003, p. 10.
[133]Baltic and International Maritime Council, International Shipping – Carrier of World Trade, 2005, BIMCO <http://www.bimco.dk/Corporate%20Area/Press%20releases/INTERNATIONAL%20SHIPPING%20-%20%20 CARRIER%20OF%20WORLD%20TRADE.aspx viewed 28 September 2005.
[134]Due to the figures for trade estimates traditionally being expressed in terms of tonnes or tonne-miles. See Shipping Facts, Shipping & World Trade – Value of volume of world trade by sea, 2005, <http://www. marisec.org/shippingfacts/worldtradevolume.htm viewed 28 September 2005.
[135]ibid.
[136]ibid.
[137]Baltic and International Maritime Council, loc. cit.
[138]Ministère des Affaires Etrangères, loc. cit.
[138]Table adapted from Becker, op. cit.
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