Staying Afloat in International Law: The Proliferation Security Initiative's Implications for Freedom of Navigation +
Identifieur interne : 006F84 ( Istex/Corpus ); précédent : 006F83; suivant : 006F85Staying Afloat in International Law: The Proliferation Security Initiative's Implications for Freedom of Navigation +
Auteurs : Hilary ClarkSource :
- Ocean Yearbook Online [ 0191-8575 ] ; 2007.
English descriptors
- KwdEn :
- Artificial islands, Bilateral, Bilateral treaties, Byers, Canadian report, Coastal, Coastal state, Coastal states, Delivery systems, Exclusive flag state, Explosive devices, First place, Flag state, Flag states, Illicit traffic, Illicit trafficking, Imminent threat, Interdiction, Interdiction principles, International peace, Legal basis, Maritime navigation, Military activities, Missile crisis, Nations treaty series, Piracy, Proliferation, Proliferation security initiative, Protocol, Security council, Security council committee, Security environment, Security strategy, State party, Stateless vessel, States party, Territorial waters, Trafficking, Unclos, University press, Unlawful acts, Wmd.
- Teeft :
- Artificial islands, Bilateral, Bilateral treaties, Byers, Canadian report, Coastal, Coastal state, Coastal states, Delivery systems, Exclusive flag state, Explosive devices, First place, Flag state, Flag states, Illicit traffic, Illicit trafficking, Imminent threat, Interdiction, Interdiction principles, International peace, Legal basis, Maritime navigation, Military activities, Missile crisis, Nations treaty series, Piracy, Proliferation, Proliferation security initiative, Protocol, Security council, Security council committee, Security environment, Security strategy, State party, Stateless vessel, States party, Territorial waters, Trafficking, Unclos, University press, Unlawful acts, Wmd.
Url:
DOI: 10.1163/221160007X00182
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ISTEX:E1129D2C8BB2BD9AAE0B4CEEC60FDCB4EEE69D9DLe document en format XML
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of Navigation +</title><author xml:id="author-0000"><persName><forename type="first">Hilary</forename><surname>Clark</surname></persName><affiliation>LL.B. 2006, Dalhousie University Law School, Halifax, Canada*</affiliation></author><idno type="istex">E1129D2C8BB2BD9AAE0B4CEEC60FDCB4EEE69D9D</idno><idno type="ark">ark:/67375/JKT-2M3RN67R-1</idno><idno type="DOI">10.1163/221160007X00182</idno></analytic><monogr><title level="j">Ocean Yearbook Online</title><title level="j" type="abbrev">OCYO</title><idno type="pISSN">0191-8575</idno><idno type="eISSN">2211-6001</idno><imprint><publisher>Martinus Nijhoff</publisher><pubPlace>Netherland</pubPlace><date type="published" when="2007"></date><biblScope unit="volume">21</biblScope><biblScope unit="issue">1</biblScope><biblScope unit="page" from="441">441</biblScope><biblScope unit="page" to="474">474</biblScope></imprint></monogr></biblStruct></sourceDesc></fileDesc><profileDesc><creation><date>2007</date></creation><langUsage><language ident="en">en</language></langUsage></profileDesc><revisionDesc><change when="2007">Published</change><change xml:id="refBibs-istex" who="#ISTEX-API" when="2017-10-2">References added</change></revisionDesc></teiHeader></istex:fulltextTEI><json:item><extension>txt</extension><original>false</original><mimetype>text/plain</mimetype><uri>https://api.istex.fr/document/E1129D2C8BB2BD9AAE0B4CEEC60FDCB4EEE69D9D/fulltext/txt</uri></json:item></fulltext><metadata><istex:metadataXml wicri:clean="corpus brill-journals not found" wicri:toSee="no header"><istex:xmlDeclaration>version="1.0" encoding="UTF-8"</istex:xmlDeclaration><istex:docType PUBLIC="-//NLM//DTD Journal Publishing DTD v2.3 20070202//EN" URI="http://dtd.nlm.nih.gov/publishing/2.3/journalpublishing.dtd" name="istex:docType"></istex:docType><istex:document><article dtd-version="2.3"><front><journal-meta><journal-id journal-id-type="e-issn">22116001</journal-id><journal-title>Ocean Yearbook Online</journal-title><abbrev-journal-title>OCYO</abbrev-journal-title><issn pub-type="ppub">0191-8575</issn><issn pub-type="epub">2211-6001</issn><publisher><publisher-name>Martinus Nijhoff</publisher-name><publisher-loc>Netherland</publisher-loc></publisher></journal-meta><article-meta><article-id pub-id-type="doi">10.1163/221160007X00182</article-id><title-group><article-title><bold>Staying</bold><bold>Afloat in International Law: The Proliferation</bold><bold>Security</bold><bold>Initiative's Implications for Freedom</bold><bold>of</bold><bold>Navigation</bold><sup><bold>+</bold></sup></article-title></title-group><contrib-group><contrib><name><surname>Clark</surname><given-names>Hilary</given-names></name><aff>LL.B. 2006, Dalhousie University Law School, Halifax, Canada*</aff></contrib></contrib-group><pub-date><year>2007</year></pub-date><volume>21</volume><issue>1</issue><fpage>441</fpage><lpage>474</lpage><permissions><copyright-statement>Please complete manually after checking copyright year in the copy of the book</copyright-statement><copyright-year>Please check in the copy of the book</copyright-year><copyright-holder>Koninklijke Brill NV, Leiden, The Netherlands</copyright-holder></permissions></article-meta></front><body><p> In May 2003, the U.S. and eleven other nations launched an initiative to "establish a comprehensive enforcement mechanism which aims to restrict weapons of mass destruction (WMD) trafficking in the air, on land and at sea, and thereby increase the political and economic costs of such trafficking."' Since 2003, the Proliferation Security Initiative (PSI) has expanded globally, and is currently supported by over 60 countries. One of the basic tenets of the PSI, reinforced repeatedly by its supporters, is that any action under the PSI will be consistent with both national law and relevant international law. This is a broad statement to make when one of the primary means necessary to achieving the PSI's maritime goals is the interdiction of ships on the high seas. Consent of the flag State to such boarding has traditionally been a precondition of international legality. This article addresses the issue of whether and to what extent contemporary international law supports interdiction of vessels in the territorial sea, the exclusive economic zone (EEZ) and on the high seas, without the consent of the flag State. Without this capacity, there is a real danger that the effectiveness of the PSI's maritime arm will be compromised since the likelihood of a known proliferator granting consent to interdict is slim. At first blush, the potential for interdiction without consent under the PSI violates a State's right to freedom of navigation on the high seas and the international law of the sea. However, this article will address a number of different ways in which interdiction may actually be consistent with contemporary navigational freedoms.</p><p> Bilateral agreements provide one form of blanket consent to interdic- tion, although they are still fundamentally consent-based strategies. Mea- sures under Article 51 and Chapter VII of the Charter of the United Nations (UN Charter), as well as the protective principle of criminal jurisdiction and the laws of armed conflict, are also methods of justifying interdiction without consent that will be explored below. Throughout the discussion, it will become clear that the most plausible option available to States wishing to justify interdiction without consent is to develop a new framework in international maritime law that links into the current law of the sea regime. The potential for interdiction without consent under the auspices of the PSI raises broader questions as well: what is the interdicting State's "follow-up" jurisdiction once boarding and inspection has been accom- plished? Is it worthwhile to interdict if the State has no jurisdiction to take the next step and prevent the transfer of any WMDs or related materials?2 Without some authority for follow-up jurisdiction, a State's ability to interdict a vessel on the high seas without the permission of its flag State is ineffective in halting proliferation-it is simply a mechanism to slow the process down and make it more expensive. The final question this article will address is what the implications of the foregoing analysis may be for freedom of navigation in the future. I. THE PROLIFERATION SECURITY INITIATIVE Proliferation The 1970 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the fundamental instrument of the modern multilateral nuclear non-prolifera- tion regime, defines "proliferation" as the transfer of nuclear weapons, other nuclear devices, or control over such devices, from a nuclear weapon State Party to any recipient whatsoever, or to a non-nuclear weapon State Party from any transferor whatsoever.3 The definition also encompasses a State party assisting, encouraging, or inducing any non-nuclear weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or devices.4 The diversion of</p><p> nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices is also covered by the term "proliferation."5 Although the NPT entered into force on 5 March 1970, the prolifera- tion problem is still present-sorne might say it is even more acute than ever before. The NPT regime is enforceable within the limits of States' territory, but it has not solved the problem of the need for extraterritorial interdiction of vessels suspected of proliferation. In December 2002, the Cambodian-flagged, North Korean-owned vessel, the M/V So San, was interdicted on the high seas off the coast of Yemen by Spain for carrying concealed Scud missiles, warheads, and rocket propellant. The vessel was ultimately allowed to finish its journey, since there was no justification in international law for Spain or the U.S. to stop the vessel from making its delivery.6 The U.S. had published its National Security Strategy on WMD in December 2002, and had been contemplating various WMD initiatives for some time, but the So San incident spurred the U.S. into action on a more specific issue—the prevention of proliferation by air, land and sea.7 President Bush launched the PSI on 31 May 2003 in Krakow, Poland. PSI supporters are clear in their assertions that the PSI is not a formal institution or a treaty organization. It is essentially a statement of purpose that aims to coordinate national action across the globe to prevent the proliferation of �1'MDs, their delivery systems, and related materials in order to enhance national security.8 The PSI's two-pronged purpose is to build on existing mechanisms for non-proliferation and to create new tools to this end.`' Although the initiative's focus is ostensibly proliferation by air, land and sea, "the scope and character of actions contemplated under the PSI framework remain unclear.."10 The PSI's more specific potential to prevent proliferation by sea has been the object of much public and academic</p><p> concern, and with good reason; between September 2003 and April 2006, thirteen of the twenty-one PSI training exercises conducted by PSI participants have been maritime exercises, and an additional maritime exercise is scheduled for May 2006. i 1 Statement of Interdiction Principles The PSI Statement of Interdiction Principles "sets out concrete actions for a more coordinated and effective basis through which to impede and stop shipments of �1'MDs, delivery systems, and related materials flowing to and from States and non-State actors of proliferation concern,,"2 and has been endorsed by all PSI participants. States commit to seek to stop the flow of WMDs and related materials at sea, in the air, and on land. Of particular interest for the purposes of this article is the niche the Statement of Interdiction Principles carves out for cooperation among States whose vessels, flags, ports, and territorial waters are being used for proliferation purposes by States and non-State actors of proliferation concern.13 One of the major commitments all States make through the Interdic- tion Principles is to prevent shipments by sea of 4�'MDs and related materials to or from States or non-State actors of proliferation concern by preventing other States from transporting these items, and by personally committing not to transport or assist in the transport of these items themselves.14 They make this commitment in their capacity as port States, as coastal States, and as flag States. As port States, PSI participants commit to enforcing various conditions on vessels entering or leaving their ports if these vessels are reasonably suspected of carrying WMD-related cargoes, particularly in the case of ports commonly used as points for transshipment to or from States or non-State actors of proliferation concerns The participants' role as coastal States is to board and search vessels in their internal waters, territorial seas, or contiguous zones if the vessels are reasonably suspected of carrying VVMD- related cargoes, and to seize such cargoes if they are found.16</p><p> PSI participants' flag State commitments are most relevant to this article. They include commitments to board, search and seize cargo on any vessel flying their flag on the high seas, either at their own initiative or at the request of another State, as long as good cause has been shown.17 Participating States also commit to seriously consider providing consent to the boarding and searching of their own vessels by other States, and to the seizure of cargo identified as WMDs or related materials.18 In short, States that choose to participate in the PSI have committed to a diplomatic expectation to take all interdiction actions within their power to prevent the proliferation of WMDs and related material. In order to carry out their port State commitments under the PSI, States are only limited by their domestic law-making processes since ports are considered internal waters and are therefore subject to domestic jurisdiction. PSI commitments will prove more difficult to justify in areas governed by international law, where interdiction is legally more complex. Specifically, in a State's territorial sea, ships have a right to innocent passage; in a State's EEZ and on the high seas, interdiction is almost wholly consent-based. II. NAVIGATIONAL FREEDOMS Innocent Passage If a coastal State wishes to interdict a foreign seagoing vessel in the territorial sea, it must have either the consent of the flag State, or some other legal basis to overcome the vessel's right to innocent passage.19 A foreign ship loses its right to innocent passage in the territorial sea when its passage ceases to be innocent, and Article 25(1) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) makes the offending ship subject to the full legislative and enforcement jurisdiction of the coastal State for any violation of its domestic laws.20 Passage ceases to be innocent when it becomes "prejudicial to the peace, good order, or security of the coastal State," or when it violates UNCLOS or international law.21 The coastal State's only major responsibility in this context is to adopt and implement national laws that give it the right to overcome innocent passage when the vessel presents a threat to the coastal State. However,</p><p> UNCLOS only grants the coastal State legislative jurisdiction over innocent passage in the following specific areas: · safety of navigation and regulation of maritime traffic; · protection of navigational aids and facilities; · protection of cables and pipelines; · conservation of living resources; · prevention of the infringement of the coastal State's fisheries laws and regulations; · preservation of the environment and prevention, control and reduction of pollution; · marine scientific research; and · prevention of infringement of customs, fiscal, immigration, or sanitary laws and regulations of the coastal State This raises the question of whether a vessel exercising non-innocent passage that is prejudicial to peace, good order, or security of the coastal State could actually be in violation of coastal State laws, or to put it another way, whether the coastal State has legislative jurisdiction to make laws preventing this type of non-innocent passage. Furthermore, Article 24 imposes the duty on a coastal State not to hamper innocent passage in any way. Daniel Joyner has suggested that: In the modern climate of concern regarding the proliferation of WMD and the transit of WMD-related materials as threats to the security of both the coastal State and-drawing upon the particular language of Article 19 [of UNCLOS]-other States as well, it should be relatively unproblematic for coastal States to legitimize overcoming the right of innocent passage through their territorial waters of seagoing vessels regarding which there is a reasonable basis to suspect involvement in these activities,.23 His argument is logical, but he does not consider whether States have legislative jurisdiction over the area in the first place. Perhaps a coastal State can consider that UNCLOS grants a general, implicit legislative authority to States in order to allow them to incorporate the Convention into their domestic laws, but Article 21 certainly appears to be an exhaustive list as it applies to innocent passage. Freedom of navigation also exists in the EEZ and in international straits. Under UNCLOS, vessels have a right to transit passage through</p><p> international straits. The transit must be continuous and expeditious through the strait, and the vessel has the duty not to threaten or use force against States bordering the strait.24 Again, the bordering State's legislative jurisdiction is restricted to much the same areas as the innocent passage rules in the territorial sea.25 No legislative jurisdiction is granted to bordering States to make laws prohibiting the use of force in straits. Article 45 also says the regime of innocent passage shall apply in straits used for international navigation. Perhaps legislative jurisdiction over acts prejudicial to the peace, good order or security of the coastal State is not contemplated by UNCLOS since violation of the fundamental rules of innocent passage takes a vessel outside of the protection of UNCLOS. A coastal State's response to a violent act, although not grounded in their national law, could be based upon their domestic criminal jurisdiction to prevent crimes disturbing the peace of the country or the good order of the territorial sea.26 Freedom of Navigation In the EEZ and on the high seas, interdiction presents a more difficult legal problem due to the traditional Grotian doctrine of mare liberum. In the EEZ, the only express limitation on freedom of navigation is provided in Article 73 of UNCLOS. Article 73 grants the coastal State legislative and enforce- ment jurisdiction mainly over resource-based issues, albeit with limitations on punishment and mandatory flag State notification of action being tak- en.27 On the high seas, States may exercise legislative and enforcement jurisdiction over vessels flying their own flag, but most interdictions of foreign-flagged vessels without consent violate international law. Freedom of the seas is defined in Article 87 of UNCLOS to include a number of essential freedoms, including freedom of navigation, freedom of overflight, freedom to lay submarine cables and construct artificial islands, freedom of fishing, and freedom of scientific research.28 Some of these freedoms, such as fishing, are expressly limited by UNCLOS.29 Freedom of navigation for</p><p> commercial purposes, although not expressly limited in the Convention, has been constrained for quite some time and at present is a much more restricted right than the blanket right laid out in UNCLOS as a result of international standards adopted under the auspices of the International Maritime Organization (IMO). Freedom of navigation in the contiguous zone is subject to the coastal State's legislative and enforcement jurisdiction to prevent or punish infringements of customs, fiscal, sanitary and immigration laws and regulations. In the EEZ, freedom of navigation is limited by coastal State jurisdiction with respect to pollution and resource control, artificial islands and installations, and marine scientific research.30 Extending into the high seas, shipping regulations and treaties regulate a ship's right to freedom of navigation.31 This is especially evident in the collision avoidance and ships' routing safety standards implemented by the IM0.�2 The 1972 Convention on the International Regulations for Preventing Collisions at Sea imple- nents traffic separation schemes in congested shipping areas; there are over a hundred of these schemes in existence and their observance is mandatory for ships of States party to the convention,.33 Article 27 of UNCLOS gives coastal States some limited enforcement jurisdiction over vessels that infringe these types of prescribed schemes and disturb the "good order" of the territorial sea as a result In spite of this gradual erosion of the freedom of navigation to a more regulated right, Grotius' l7th century principle remains a central precept of the law of the sea for most international legal theorists. Although there have been many compromises to this freedom in recent years due to the increase in regulation, it is still important to attempt to fit PSI principles into the contemporary understanding of freedom of navigation; therefore a number of different theories have been advanced to justify PSI-type interdictions under international law. Consent is the simplest of these theories, either as exercised through formal agreements between States or on a case-by-case basis.</p><p> III. METHODS OF OVERCOMING NAVIGATIONAL FREEDOMS Consent-based Interdiction Bilateral Agreements In February 2004, the U.S. and Liberia signed a bilateral treaty enabling rapid consent to board vessels on the high seas suspected of carrying WMDs and related materials-the first of its kind to be developed. The treaty accords both States the right to board, search, detain and seize the cargo of one another's vessels on the high seas if there are "reasonable grounds to suspect" that the vessel is engaged in trafficking in WMDs and related materials.35 Although the agreement does not waive the requirement of seeking flag State consent, a provision allows for the presumption of consent if two hours pass without response to such a request,.36 The flag State's potential responses to a request to board and inspect include conducting boarding and inspection with its own security officials, authorizing boarding by the requesting State, or denial of permission to board outright.37 Since signing the first agreement with Liberia in 2004, the U.S. has concluded almost identical bilateral agreements with Panama, the Marshall Islands, Croatia, Cyprus and Belize.3g It is interesting to note that all of these States, with the exception of Croatia, are known to have significant open registries, and Liberia's is the largest in the world. This strategy facilitates boarding and inspection of a much wider range of vessels than it would initially seem, since these open registries compose a major proportion of the ocean's tonnage. As of 1 January 2004, 6,385 ships operated under Panama, Liberia and Cyprus' registries alone, representing a total of 274,499,000 deadweight tonnes.39 For sovereignty reasons, many States consider bilateral treaties to be a better option than a general convention that has been more widely subscribed. The obligation to consent established by a bilateral treaty is not irrevocable, and could be withdrawn should the right be abused by the other State.4° From the perspective of the effectiveness of the agreement,</p><p> however, choosing a bilateral agreement over a multilateral treaty or convention means a State can withdraw its consent, or even more significantly, its participation in the agreement capriciously (should there be a sudden change in its political situation, for example). Finally, although the agreements encourage States to consent to boarding, they can still legitimately deny consent as well, however politically inadvisable it may be to do so. Therefore, while a regime based on bilateral agreements would be popular among States to the extent that it protects their sovereignty, it would not necessarily best serve the purposes of the PSI. Article 108(1) of UNCLOS obliges States to cooperate in suppressing the drug trade-this is the most widely available counter-narcotics obliga- tion on States, but it is supported by a number of bilateral and multilateral treaties that deal specifically with drug trafficking. In 1981, the U.S. and the U.K. concluded a bilateral agreement giving the U.S. authority to visit, search and seize vessels flagged in the U.K. and suspected of drug trafficking, without prior request by the U.S. or approval by the U.K-41 In the 1990s, the U.S. adopted twenty-three bilateral treaties with States in the Caribbean and Central America in an effort to combat drug trafficking by sea while still conforming to the traditional rule of flag State consent. Some of the treaties grant advance consent to interdictions, and some include a similar presumption of consent to the bilateral PSI treaties discussed above, establishing that if there is no response to a request to board within a short period of time, consent is presumed to have been granted.42 The principles behind these agreements are given even more weight by the fact that they are supported by a number of multilateral treaties.4� The counter-narcotics agreements provide successful precedents for bilateral PSI agreements, albeit still with the requirement of some form of flag State authorization prior to boarding. The U.S. State Department's 2006 International Narcotics Control Strategy Report boasts that bilateral agreements between the U.S. and Caribbean and Latin American countries have eased the burden on these countries' law enforcement assets to conduct at sea boardings and search for contraband ... This team effort has led to unprecedented success by removing over 150 metric tonnes of cocaine from the maritime transit zone in 2005 by U.S. Government assets.44</p><p> These statistics clearly demonstrate the value of bilateral agreements, as long as they are widely subscribed. One of the reasons for the success of this program is likely its wide reach, something that has taken at least a decade to achieve. To date, the five PSI bilateral agreements concluded simply do not apply globally enough to be effective, in spite of the fact that they have been concluded with major open registries. There are, however, significant limitations to comparing narcotics offences to proliferation offences. First, narcotics control is limited to specific geographical areas, and surrounding States have a vested domestic interest in preventing the drug trade. Drug trafficking offences are firmly established in the domestic laws of affected States, and it is in the best interests of all States concerned to cooperate towards the elimination of drug trafficking altogether, as it is associated with a wide range of other domestic and international crimes. The challenge in this context is to compare proliferation, an activity that is far more global in its nature, but State-specific in its potential effects, to drug trafficking, a regionally limited activity that affects all States. States must have some vested interest in the potential domestic impact of a condemned activity in order to sign on to an international treaty explicitly prohibiting it. Proliferation activity is nebulous and its effects on individual States cannot be predicted with any certainty. How does one State know that it is more at risk from the eventual impacts of a proliferator's actions than another? The U.S. certainly has a vested interest in preventing proliferation activity since the events of 11 September 2001, but States like Indonesia and Spain could not have anticipated the more recent attacks that occurred on their territory. In a way, this makes proliferation more insidious and universal, but since its effects cannot be measured or predicted with any accuracy, States that do not see themselves as targets may be less likely to see it as the type of offence that has concrete effects on them individually. Non-Consent Based Interdiction The PSI Statement of Interdiction Principles does not expressly eliminate the possibility of interdiction without consent, although this type of interdiction is generally considered to be counter to international law. Basing a non-proliferation strategy on the ability to obtain the consent of "rogue States" and non-State actors of proliferation concern to sanction them for their actions is simply unrealistic. Consent-based measures may prove effective in the case of States that would be likely to condemn</p><p> proliferation anyway, but for a State complicit in proliferation activities or a non-State actor without a sense of accountability to any State's laws, the proliferator's main focus will be to maintain the ability to traffic in WMDs, and such a State will be unlikely to provide consent to boarding. To put the problem succinctly, "the problem with all the treaty-based approaches is that the [S] tates most likely to traffic in WMD[s] and associated technolo- gies are unlikely to accord stop-and-search powers to other [S] tates. "45 Herein lies the paradox: to be truly effective in preventing proliferation, the PSI must be capable of overcoming situations of non-consent on the high seas, but to be politically legitimate, it must be capable of doing so within the confines of international law. UNCLOS Framework Article 110 of UNCLOS is designed to carve out the limited circumstances in which a warship or military aircraft can board a foreign ship on the high seas. The right of visit is granted by the Convention as an exception to the general principle in Article 92 of exclusive jurisdiction of the flag State over ships flying its flag. The provision also protects against the abuse of this right if boarding proves unjustified.46 The circumstances under which boarding on the high seas is permitted under Article 110 are reasonable grounds to suspect that the ship is engaged in piracy or the slave trade; that the ship is engaged in unauthorized broadcasting and the boarding ship has jurisdic- tion under Article 109; reasonable grounds to believe that the ship is without nationality; or reasonable grounds to suspect that the ship is of the same nationality as the warship but is disguising that fact. The provision's language suggests that this is an exhaustive list. Other exceptions to the principle of exclusive flag State jurisdiction are set out elsewhere in Articles 105, 109 and 111 of UNCLOS but these exceptions all expand upon Article 110's specific exceptions. It therefore does not appear that an implied right exists under UNCLOS to any other type of interdiction on the high seas, which is a "significant legal stumbling block to any assertion of authority to interdict foreign ships and aircraft under the PSI. "47 There is one exception to the exhaustive nature of Article 110's list. The provision is introduced by the phrase: "except where acts of interference derive from powers conferred by treaty."</p><p> Here, the drafters of Article 110 wished to leave open the possibility that parties to subsequent or already extant treaties among groups of UNCLOS signatories might amend as among themselves the right of interdiction covered in the article. Thus States upon which the principles of UNCLOS are legally binding, either through treaty ratification or custom, can essentially rewrite the interdiction principles of Article 110 pursuant to this provision through the establishment of conflicting principles in other treaty instruments.48 The potential for other treaty instruments to exempt States from Article 110, however, is limited to States party to these instruments. Therefore, the effectiveness of this potential loophole is limited to consenting States, and has no effect on States of real proliferation concern. It does, however, leave open the possibility of amending the PSI Statement of Interdiction Principles to allow interdiction on the high seas without consent as among its participants. As the PSI becomes more broadly subscribed, the potential for non-consent based interdiction in the proliferation context to be more widely accepted in the international community will grow. Objections to this type of action will be strong, however, and will most likely prevent the development of the necessary opinio juris for this type of action to be sanctioned as customary international law. Another method of legitimizing PSI-type interdictions under UNCLOS would be by formally amending Article 110. Amending UNCLOS is a procedure that States have thus far avoided partly due to its complexity and partly due to the length of time it would take to make such amendments.4� A conference to consider an amendment proposal is one of the requirements under UNCLOS Amendment Procedures, and it will only be held if, within 12 months of the circulation of a communication notifying members of the proposed amendment, at least half of the States party to the convention reply favorably to the proposal.511 Amendments then must be adopted by consensus if at all possible, lengthening the time it would take to carry out such a process and raising the possibility that the actual language of the</p><p> amendment might be weakened in order to achieve consensus among all States.51 Once an amendment has been adopted, it is open for signature for an additional 12 months, following which it must be ratified by two-thirds or 60 percent of States Parties.52 Finally, another month must pass before the amendment comes into force, and even at this stage, it is only binding on its signatories.53 The amendment process under UNCLOS is time consuming at minimum two years must pass from the date of the original amendment proposal until the amendment comes into force. For PSI purposes, this is too long. The initiative was developed to respond to an immediate concern. Proliferation continues to occur on the high seas, and although an amended Right of Visit under UNCLOS would certainly add legitimacy to PSI interdictions, a two-year delay to make the necessary changes would simply be ineffective, at least in the short term. Furthermore, depending on the amendment process chosen, the amendment itself might be rejected altogether, or adapted to conform to a consensus decision. Therefore, amendments to UNCLOS would be an inefficient means of addressing immediate proliferation concerns. Article 92 of UNCLOS mandates that ships sail under one flag only. If a ship sails under the flags of two or more States, it is liable to be considered a "ship without nationality." By extension, then, a ship without nationality is not subject to the exclusive jurisdiction of any flag State and is not protected under international law.54 A right of boarding and inspection is therefore certainly available as against a stateless vessel, particularly in order to ascertain its nationality; however, the continuing right to arrest and confiscate cargo is much less certain. Stateless vessels are not regulated by UNCLOS, and are therefore governed by rules and principles of general international law. General international law states that ships without nationality have no standing while at sea.55 Ships that fly no flag and refuse to show a flag when legitimately called upon to do so may be boarded by ships of any State.56 These principles lead to the ability for an interdicting State to board, inspect and</p><p> possibly confiscate goods, but the standing of offending crew members on board a ship who are involved in committing international offences is less certain. The ability to arrest and prosecute an individual accused of committing an international crime on a stateless vessel would likely be governed by the nationality principle.57 This principle of international criminal jurisdiction is based on prosecution by the State of which the individual is a national, and is based on both the individual's allegiance to the State and the central international law tenet of State sovereignty,.58 Although Article 88 of UNCLOS mandates that the high seas be reserved for peaceful purposes, the term "peaceful purposes" is not defined in the Convention. Three different interpretations of the term existed among nations in the debates at the Third United Nations Conference on the Law of the Sea concerning the Convention. Some States felt that peaceful purposes meant the prohibition of all military activities; some felt that the term indicated the prohibition of all military activities for aggressive purposes, but not for other purposes; and some felt that a purpose would be considered peaceful as long as it conformed to the UN Charter and other international law obligations.59 Based on the debates at the Law of the Sea Conference, similar provisions in other multilateral treaties, and in the context of UNCLOS itself, most commentators argue that Article 88 is not an outright ban on military activities on the high seas.60 In the EEZ, the peaceful purposes approach appears to be more widely agreed to disallow States other than the coastal State from carrying out any types of military activity without the coastal State's consent. In reality, foreign military activities in a coastal State's EEZ do not constitute "peaceful purposes" at all, or may not be perceived as such.61 The only situations contemplated under UNCLOS in which one State can interpret the "peaceful purposes" provision as binding on another State arise in the context of marine scientific research, in the context of the International Seabed Area, or in cases in which UNCLOS provides for third- party binding dispute settlement. 62 Article 301 of UNCLOS indicates further</p><p> that there are no military uses of the sea that are compatible with the UN Charter and yet still illegal in terms of Article 88.�� A leading academic on Article 88 argues that "the reservation of the high seas for peaceful purposes cannot be operationalized in terms of complete demilitarization. However, in view of the seemingly brighter prospects for arms control today, a mutual balanced reduction of the nuclear strategic submarine forces is within the reach of possibility."64 If the traditional doctrine of peaceful purposes could be stretched to provide the potential for arms control in the context of nuclear submarines during the cold war, surely it can be taken a step further to cover non-proliferation of WMDs and related materials. At present, however, it may remain difficult to argue that a vessel known to be involved in proliferation activities had violated the "peaceful purposes" provision in Article 88 of UNCLOS to any substantial effect. One of the most problematic elements of this argument would be that the trade in arms per se is not illegal in international law-for example, the trade in WMDs is procedurally regulated by the NPT. It would also be difficult to deem that the trade in WMDs compromised the peaceful nature of ocean use any more than innumerable other military activities that are currently held to be legitimate in terms of Article 88. At the same time, non-flag, non-consensttal interdiction of commercial shipping by PSI members is much more likely to actually violate the peaceful purposes requirement in UNCLOS, as well as the UN Charter, unless undertaken under the auspices of a UN Security Council Resolution.65 In that sense, the peaceful purposes argument can not only be limited for PSI purposes, but it works against PSI members themselves. Therefore this argument does not appear to be a viable option in terms of bringing legitimacy to interdictions on the high seas without the consent of flag States unless the Security Council were to play a more active role. cnv Charter Chapter VII The Charter of the United Nations dictates that the only legitimate use of force in international law is as authorized by the Security Council.66 Chapter</p><p> VII makes the use of force a last resort in the case of a conflict, indicating that the authorization of the UN Security Council in the form of a special resolution is necessary in order for States to use force in any sitrration.67 Potentially the most effective international measure available to justify PSI interdictions would be for the UN Security Council to take Chapter VII measures implementing a resolution each time a situation arose in which a State's weapons shipments were deemed to be a threat to international peace and security,.68 The practical implications of this measure would necessitate a large number of situation-specific resolutions. However, the U.S. argues that the PSI is consistent with the more generally worded UN Security Council Resolution 1540 (2004) since its Statement of Interdiction Principles commits all participating States to the type of international cooperation called for in the Resolution.69 The PSI's official website also indicates that the PSI should be seen as implementing Resolution 1540's call for international cooperative action to prevent illicit trafficking in WMDs and related materials. 70 The U.S.'s official position in response to the question of whether UN Security Council Resolutions have the future potential to be used as an international legal basis for PSI actions is that if an action is authorized by a UN Resolution, a PSI participant could use that Resolution as authority to interdict. This position is qualified by the fact that the PSI is a voluntary organization, and if a State is uncertain as to the legality of a specific action, whether taken under the auspices of a Security Council Resolution or not, it may simply decline to participate.71 UNSC Resolution 1540 (2004) gives legal weight to the PSI in the sense that it provides a clear statement from the Security Council that the proliferation of nuclear, chemical and biological weapons, and their means of delivery constitutes a threat to international peace and security,.72 It encourages States to take concerted steps towards preventing proliferation, particularly for terrorist purposes, and specifically by implementing domes-</p><p> tic controls that aim to prevent the proliferation of WMDs. Some of the controls mandated or encouraged by the Resolution include domestic legislation, enhanced export controls, new enforcement procedures and international cooperation UNSC Resolution 1540 compels domestic action, not international cooperative action. The language used to describe States' international obligations is not compulsory, and although the Resolution's basic princi- ples are useful tools in support of the PSI's goals, it does not specifically mandate compliance with the PSI or its aims, nor do any of the articles justify actions otherwise held to be illegal in international law. The Resolution does not grant PSI countries any authority to seize WMD cargoes on the high seas, although it might encourage States to consent to interdiction to the extent that it underlines the fact that this form of WMD trafficking is illegal.74 It does, however, impose some "binding and far- reaching obligations on all Member States to take legislative and administra- tive actions in accordance with their national procedures" according to the Security Council Committee established pursuant to Resolution 1540 in their first report to the Security Council,.75 Perhaps in its role as a step towards raising international consciousness of the gravity of WMD prolifera- tion, Resolution 1540's major accomplishment will be to put States in the right domestic frame of mind to combat proliferation on a global level. One component of Resolution 1540 is to establish a Special Committee of the Security Council to supervise its implementation and report back to the Security Council frequently. The Committee's mandate is to consider reports submitted by each Member State pursuant to the Resolution on "steps they have taken or intend to take to implement this resolution. "76 Based upon the list of States who have not complied with their obligation to report to the Resolution 1540 Committee, it appears that non- compliance has less to do with States' proliferation goals and more to do with availability of resources to produce the report. Most of the States who have not submitted reports are considered developing countries and none appear to be of known proliferation concern,.77</p><p> All States' reports are accessible on the UN website, but the Committee has come to no conclusions thus far regarding the Resolution's implementa- tion. They do state that Full implementation of Resolution 1540 by all States in the form of national legislation and measures to enforce such legislation is a long- term objective that goes beyond the current mandate of the Commit- tee. It will require continuous effort at the national, regional and international levels to provide capacity-building and assistance.78 In April 2006, the Security Council extended the mandate of the 1540 Committee for another two years, to April 2008. The Council also decided that the Committee should intensify its efforts to promote the full implementation by all States of Resolution 1540. By the terms of a new resolution (1673), the Council called on all States that had not yet presented a first report to do so without delay. Finally, the Council decided that the Committee is to submit a report no later than 27 April 2008 on compliance with Resolution 1540 through the achievement of the imple- mentation of its requirements.79 Paragraph 10 of Resolution 1540 calls upon all States to cooperate internationally to prevent illicit trafficking in WMDs and related materials, and the U.S. has used this paragraph as a basis for much of its action with respect to the PSI. Under the heading "International Law Enforcement Cooperation," the 12 October 2004 U.S. Report to the Committee highlights the activities of the U.S. in concluding bilateral shipboarding agreements in support of the PSI, indicating that these agreements should "facilitate the process of obtaining consent to board ships suspected of carrying cargoes of proliferation concern,."80 The U.S. also highlights its efforts towards amending the SUA Convention to criminalize the transport of WMDs and related materials by sea and to implement associated shipboarding procedures.81</p><p> The practical result of Resolution 1540, therefore, is to impose domestic non-proliferation obligations on States, and to encourage States to work towards international cooperation on non-proliferation. The Resolu- tion imposes no international obligations on States, instead favoring a non- intervention approach on the international front. In effect, this means that Resolution 1540 is fairly ineffective in justifying any high seas action beyond what is currently available to States. And, in spite of its rhetoric, the U.S. has not yet stretched the Resolution to justify unilateral interdiction on the high seas, seemingly comfortable to rely instead on the existing bilateral agreements it has in place. Instead of relying on a more general resolution akin to Resolution 1540, the Security Council could also take situation-specific measures every time a specific proliferation threat came to pass. Situation-specific Security Council Resolutions authorizing interdiction on the high seas of particular vessels may be the most legitimate means in international law of justifying such interdictions, but what this route possesses in legitimacy, it lacks in efficiency and speed. Traditionally, the role of the Security Council has been limited to remedying "breaches of international peace and threats to international security that have either already begun to take place or that appear imminent," although this conception has expanded recently to a broader mandate, for example, by imposing economic sanctions.g2 Whether or not this expansion is legitimate, the Security Council's mandate may not be broad enough to determine whether the threat posed by WMD proliferation constitutes an imminent threat to international peace and security.83 Whether enough of a threat exists to merit a Security Council Resolution may depend on the status of the ship being interdicted as flagged by a State of "known proliferation concern." To pass a Resolution at the Security Council, the support of nine of the fifteen Security Council members is necessary, including all five permanent members. This step in the process may prove to be an additional challenge, since it is unlikely that China, a permanent member of the Security Council who has thus far refused to be a part of the PSI, would support such a resolution</p><p> A situation-specific resolution would not allow the flexibility of action that the U.S. currently feels is allowed under Resolution 1540. The wording of the existing resolution is vague enough to leave the possibility open for future interdiction action against other parties, whereas a resolution aimed specifically at one proliferator could not be applied to a different State or non-State actor on another occasion.g5 As well, it takes some time to pass a resolution through the Security Council, and in the time it would take to deal with a specific situation via this lengthy method, the window of opportunity for action would likely have passed, the threat would have manifested, and the point of legitimate interdiction would be moot. Finally, obtaining a resolution might compromise intelligence on the part of the requesting State, especially given the wide range of Security Council Member States that would need to consider and approve the resolution. It is clear that to authorize interdictions through a UN Security Council Resolution, although the most legitimate means for legalizing PSI action on the high seas, is fraught with difficulty. Self-Defense An interdicting State could also invoke the doctrine of self-defense in order to justify an interdiction on the high seas. A State's right to self-defense is granted by Article 51 of the UN Charter: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."86 In addition to this basic right, the International Court of Justice has confirmed that the customary right to self-defense, which broadens this definition, remains in existence as well.8� This customary right to self- defense includes the provisions of the Caroline case, which encompass a right to preemptive self-defense if there is a "necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of</p><p> deliberation."8$ The Caroline principle of preemptive self-defense is less helpful for the purposes of PSI-type interdictions in determining when a "moment for deliberation" actually exists. The issue is whether a serious, developing threat such as the proliferation of WMDs to a State or non-State actor of proliferation concern can constitute an instant, overwhelming need for defense based on the potential of a future attack. A "moment" is certainly not long enough to go about obtaining a UNSC Resolution authorizing the use of force, and therefore the question is whether this customary law definition can be adapted to today's security environment. The threat associated with WMD[s], and the dangers inherent in imposing upon a [S]tate the duty to wait for such a threat to materialize sufficiently to satisfy the factual determination of necessity, means that the threat should reasonably be considered imminent in spatial and temporal circumstances where no such threat would be considered imminent if only conventional weapons were involved.g9 Extending the right of preemptive self-defense to apply more effectively to PSI-related issues is one area that the U.S. has controversially explored. The U.S. National Security Strategy speaks of adapting "the concept of imminent threat to the capabilities and objectives of today's adversaries, "90 and the U.S. has emphasized the fact that an extended right of preemptive self-defense has been an integral part of the PSI since it was originally envisioned.91 Expanding the traditional vision of preemptive self-defense would be an unpopular approach, however, and would prove highly contentious in the international community. Of particular concern to many countries would be the parallels between this extension and the U.S.'s role in Iraq both in the context of the war and in the subsequent context of its role there now.92 The Cuban Missile Crisis provides very limited precedent for this approach that has some significant parallels to the PSI and its goals,</p><p> although the question of whether the events actually played any role in extending the preemptive right of self-defense is extremely controversial.93 In the early 1960s, during the Cuban Missile Crisis, the U.S. asserted a right to board and inspect vessels they had reasonable grounds to suspect were supplying missiles to Cuba. The U.S. made a declaration indicating that missiles constituted an explicit threat to the peace and security of all of the Americas, counter to the 1949 Rio Pact, the traditions of the U.S. and the hemisphere, and the UN Charter. Under the auspices of the Inter- American Treaty of Reciprocal Assistance, the Council of the Organization of American States proceeded to call for the immediate dismantling and withdrawal of all missiles, recommending that Member States take all necessary measures (including the use of force) to deter the supply of missiles to Cuba. Based on this statement, President Kennedy issued a proclamation enabling the U.S. Navy to interdict any ship heading towards Cuba-refusal to allow boarding and inspection was to lead to arrest, but force was only to be used if the vessel failed to comply with an order.94 The U.S.'s actual justification for the action was that the OAS resolution was a regional peace and security measure under Chapter VIII of the UN Charter, but there have been arguments put forth that U.S. action actually constituted a form of preemptive self-defense, given that the action was taken to prevent Cuban missiles from becoming an active threat to the peace and security of the continent. Perhaps the Caroline principle of necessity could have been made out in this case, but proportionality may not have been. The key failure of the preemptive self-defense argument in the Cuban Quarantine situation, however, is that there was no imminent threat. The imminence lay in the need to immediately interdict a ship carrying weapons to a state of concern, and this argument has not been convincing enough for most academics. Given the clear link between at-sea interdic- tions in this situation and interdictions under the auspices of the PSI, the generally negative reaction of authorities to the situation's value as precedent for the exercise of preemptive self-defense is discouraging. What the Cuban Quarantine example does demonstrate is that, "even in peacetime, [S]tates do unilaterally take exceptional measures of enforce- ment jurisdiction on the high seas, any opposition from other States being insufficient to deter them."95</p><p> Protective Principle of Criminal Jurisdiction Under the "protective principle" of criminal jurisdiction, a State may exercise jurisdiction over acts committed abroad that are prejudicial to its security, territorial integrity, and political independence. The principle is most often seen in treaties that provide for more than one jurisdictional ground for a specific offence, for example, the 1979 Hostages Convention.96 One of the major concerns States have about the principle is the ease with which it could be abused to subvert foreign governments.97 In the 1985 case of U.S. v. Gonzalez, the U.S. successfully asserted jurisdiction over a foreign ship on the high seas engaged in smuggling drugs into the U.S. based on the protective principle.98 The court held that the protective principle provided justification for the seizure and prosecution by the U.S. of ships or individuals on the high seas to the extent reasonable and necessary to protect itself and its citizens from injury. The conduct at issue did not need to have an actual intended effect on the U.S.; it could be forbidden as long as its effects were potentially adverse and it was generally recognized as a crime by States with "reasonably developed legal systems."99 The court went on to say that reliance on the protective principle was not unprecedented in U.S. law, in that it had been used as early as 1935 to form the basis of anti-smuggling laws.100 In fact, in this case, Honduras had consented to the U.S. boarding of its ship, but the court brushed off the importance of this consent, saying that considering consent an element of the enforcement of the offence would be misleading. Consent, in this situation, was merely a diplomatic tool to ensure good relations among international partners regarding the rule of law on the high seas. In the court's words, consent was "a courtesy to our neighbour States and not a courtesy to drug smugglers."101 Churchill and Lowe see the connection between U.S. v. Gonzalez and narcotics legislation in general as one that increases the likelihood that States would be tolerant of the extension of national jurisdiction "in order to repress such generally deplored activities." 102 If the general consensus on narcotics control is that it is so heinous as to be deplored by other nations, it</p><p> might not be stretching international opinion too far to consider prolifera- tion as another "generally deplored activity," although the limitations to comparing narcotics control to non-proliferation have been discussed above. In addition to these problems, the legal basis for extending criminal jurisdiction on the high seas beyond the territorial principle expressed in the Lotus case is shaky at best. 103 jurisdiction in international law is widely understood to be "primarily and predominantly territorial," although "[S]tates are free to consent to arrangements whereby jurisdiction is exercised outside the national territory and whereby jurisdiction by other [S]tates is exercised within the national territory."104 Therefore, the protective principle of criminal jurisdiction is unlikely to provide sufficient justification in international law for interdiction without consent on the high seas for PSI purposes. Laws of Armed Conflict and Laws of Naval Warfare The general legal regime for the high seas is outlined by UNCLOS, but this convention only regulates the sea in times of peace. Rights and duties under the Convention must be modified to a certain extent in times of armed conflict. The Geneva Conventions indicate the general international understanding of a state of armed conflict in their common Article 2.�°5 It includes declared war, armed conflict between two parties even if one does not recognize a state of war, and the partial or total occupation of a State's territory, even if it is not met with armed resistance.106 It may be difficult to establish that a state of armed conflict could be said to apply in the PSI context, but the most logical component of the Geneva Conventions' definition of armed conflict is the second situation, in which armed conflict is occurring between two parties even if one does not recognize a state of war. Once a state of armed conflict has been established, the laws of naval warfare are quite clear on the legality of interdiction at sea. Belligerent warships "have a right to visit and search merchant vessels outside neutral waters where there are reasonable grounds to suspect that they are subject</p><p> to capture."io7 Note that even in situations of armed conflict, this right may not be exercised arbitrarily-the commander of the intercepting warship must have "reasonable grounds" to suspect the vessel is subject to cap- ture.108 This right was successfully exercised in the Persian Gulf during the first conflict in Iraq in order to enforce the sanctions imposed by the UNSC, reinforcing the notion that the right has the specific intention of controlling and enforcing prohibitions on carriage of contraband and institution of blockades.109 Even more problematic is the fact that the right to actually seize cargo transported on neutral ships is dependent on the nature of the goods themselves. Purely military equipment would constitute "absolute contraband" and would be subject to seizure, whereas "condi- tional contraband"-items that could have civilian or military uses-may only be seized if destined for the military.110 Although the laws of armed conflict at sea provide an easy solution to the problem of interdiction without consent, several issues arise. Adapting the characterization of armed conflict "between two parties even if one does not recognize a state of war" as the most likely definition States would adopt to put them in a position where the laws of war would apply might prove difficult. Most analysts think that the "war on terrorism" cannot legitimately be seen as armed conflict in its conventional sense.111 "Rather, a multitude of agreements, conventions, domestic legislation, and case law comes into effect with each terrorist incident ... And it is most uncertain if [the rules of armed conflict] are applicable on the high seas. Therefore, seizure of goods on the high seas would probably not be permitted solely on the grounds of the 'war on terrorism.' "112 Even if it were possible to adapt the concept of proliferation to fit into the contemporary understanding of armed conflict, this may not be the best approach from a policy perspective. Rather than forcing States into war, and everything the status of "armed conflict" implies, States should work towards justifying interdiction as a method of maintaining international peace.</p><p> A Framework in International Maritime Law Most proliferation actions take place in the form of carriage of goods by sea, and one of the most relevant pieces of maritime legislation to the PSI initiative is the 1988 Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention), which was originally envisioned as a convention criminalizing and penalizing persons committing unlawful acts against ships and their crew. The SUA Convention currently has 135 Contracting States, including all participants in the PSL113 In 2002, in response to the changing security environment and proposals by the U.S., the Legal Committee of the IMO began to consider a number of proposed new offences to incorporate into the SUA Convention, extending it to cover terrorism threats and WMD proliferation. These considerations and negotiations resulted in two new Protocols amending the 1988 Convention and the 1988 Protocol, which were adopted on 14 October 2005 and are currently open for signature. In its opening paragraphs, the 2005 Protocol to the SUA Convention (2005 Protocol) recalls both UNSC Resolution 1540 and UNCLOS.,114 demonstrating immediately the delicate balance it attempts to strike between the divergent goals of preventing terrorist acts while still protecting the fundamental freedoms of the seas. The 2005 Protocol's new Article 3bis( 1 ) (b) states that a person commits an offence under the Convention by the unlawful and intentional: · transport on board a ship of any explosive or radioactive material, knowing that it is intended to be used to cause, or in a threat to cause, death or serious injury or damage for the purpose of intimidating a population, or compelling a government or an international organization to do or to abstain from doing any act; · transport on board a ship of any biological, chemical or nuclear (BCN) weapon,��5 knowing it to be a BCN weapon, any source material, special fissionable material, or equipment or material especially designed or prepared for the processing, use or produc-</p><p> tion of special fissionable material, knowing that it is intended to be used in a nuclear explosive activity or in any other nuclear activity not under safeguards pursuant to an International Atomic Energy Agency (IAEA) comprehensive safeguards agreement; and • transport on board a ship of any equipment, materials or software or related technology that significantly contributes to the design, manufacture or delivery of a BCN weapon, with the intention that it will be used for such purpose.116 States party to the NPT are exempt from this provision as long as their actions are taken in conformity with their obligations under that treaty.117 The proposed Article 8bis details cooperation and procedures to be followed when a State party wishes to board a ship flying the flag of another State party, and there are reasonable grounds to suspect that the ship or a person on board has been (or is about to be) involved with the commission of an offence under Articles 3, 3bis, 3teror 3quater. With reasonable grounds, the party may stop, board and search the ship, its cargo and persons on board, and question persons on board to determine whether an offence has been committed. The central tenet of the boarding and inspection procedure, however, is that the requesting party may not board the ship or take any of the above measures without the consent of the flag State.118 Notably, Article 8bi.s includes a provision deeming a flag State to have consented to boarding in some limited circumstances. The State party may notify the Secretary General of the IMO that if they do not respond to the requesting State within four hours of receipt of a request to confirm nationality, the requesting State will be authorized to board and search the ship, its cargo and persons on board in order to determine the ship's nationality, or determine whether an offence has been committed under the Convention. 119 This provision is significantly more limited than the U.S. bilateral PSI agreements in that, in addition to being a signatory to the 2005 Protocol, the State party must take the further step of opting into this provision-and then may choose to opt out at any time. Generally speaking, if the inspecting State finds evidence of any Convention offences on inspection, it must defer to the flag State for further instruction, with some significant exceptions. The inspecting State may take additional measures without authorization "when necessary to relieve imminent danger to the lives of persons" or if authorized by relevant.</p><p> bilateral or multilateral agreements.120 Finally, the proposed Article 8bis limits the use of force to the minimum that is necessary and reasonable in the circumstances. The 2005 Protocol is particularly useful for the purposes of the PSI because it provides specifically for interdictions of vessels engaging in WMD trafficking. However, the Article 86is exception to the traditional legal requirement of flag State consent described above is so limited that, in practice, the Convention changes nothing in terms of a State's legal capacity to interdict the vessel of an uncooperative flag State on the high seas. One potential loophole provided by Article 8bis of the 2005 Protocol is the provision allowing the interdicting State to take "additional measures" without the consent of the flag State in order to "relieve imminent danger to the lives of persons." Different levels of perceived danger exist depending on the cargo being transported-95 percent of WED compo- nents are recognized to have legitimate dual uses.121 Should an inspecting State happen upon a cargo of "ready-made WMDs,," however, it would be an easier task to justify further action based on an imminent danger to peoples' lives. Perhaps the "imminent danger" provision is the loophole the PSI can use as a starting point for justifying interdiction without consent. The final problem with using the 2005 Protocol to justify interdiction is that States of proliferation concern, especially those not party to the NPT, will simply choose not to sign onto the new Protocols, thereby ensuring they remain out of reach of the new offences and boarding regime.122 This provides yet another illustration of the problems inherent in a voluntary regime. As a multilateral treaty, the SUA Convention and its 2005 Protocol are only binding on those States that choose to become parties, and therefore have limited application. However, the 2005 Protocol creates some signifi- cant offences that constrain UNCLOS's established freedom of navigation on the high seas. It is therefore essential to determine the SUA Convention and 2005 Protocols' legal weight with respect to UNCI,OS. UNCLOS is the supreme law of the seas, although it does adopt international regulations, procedures and practices of shipping in Article 94, presumably meaning those established by the IMO. Article 311 of UNCLOS says that States party to the Convention may conclude bilateral or</p><p> multilateral agreements modifying or suspending the operation of its provisions. These agreements only apply to their parties, however, and may not derogate from the Convention to the extent that the effective execution of the object and purpose of the Convention is compromised, that they compromise basic Convention principles (such as freedom of navigation), or that the proposed agreements affect other State parties' fundamental rights under the Convention,.123 This provision is a strong indication that any deviation from the freedom of the seas principles in UNCLOS by the amended SUA Convention without the justification of Article 94 would simply violate the law of the sea. UNCLOS has 149 State Parties and is considered a codification of the customary law of the sea, so this universal recognition would make it difficult to use the SUA to justify derogation from its principles. On the other hand, Article 110's qualification that the right of visit provisions are exhaustive "except where acts of interference derive from powers conferred by treaty" may be the perfect opportunity for the amendments to the SUA Convention to have some effect on PSI principles. The stumbling block in this situation is that both the interdicting State and the target State would need to be parties to the amended Convention for it to override Article 110. The 2005 Protocol was adopted in October 2005 and has been opened for signature. In the meantime, since the Protocol is not yet in force, it does not provide an immediate answer to the PSI issue. However, the Amended Convention will enter into force ninety days after the date on which twelve States have either signed it without reservation as to ratification, acceptance or approval, or have deposited an instrument of ratification, acceptance, approval or accession with the Secretary General of the IM0.�24 At that time, it will still only bind contracting States-States who do not sign, ratify, accept, approve or accede to the new Protocol will be subject to the 1988 SUA regime if they were signatories originally. If they were not parties to the original SUA Convention in the first place, the obligations of the SUA regime will not bind them at all. IV. NEXT STEPS: ENFORCEMENT JURISDICTION If interdiction without consent on the high seas is ultimately held to be a legitimate exercise of power by PSI members, the battle will still only be half- won. In the territorial sea, a coastal State has the same powers of enforcement as it would in national territory (subject to innocent passage).</p><p> In the EEZ and on the high seas, however, States' powers of enforcement are much more limited and "inherently ambiguous because they do not derive from sovereignty but from a concessive rule of international law."125 The ability in law for a non-flag State to interdict does not necessarily extend to the capacity to arrest individuals or confiscate a ship's offending cargo, which makes this capability to interdict relatively toothless, other than as a measure to increase the financial burden on proliferators. The PSI's Statement of Interdiction Principles certainly contemplates the seizure of cargo identified as W'MD-related, but this type of seizure has often been held to be illicit in peacetime when performed by a non-flag State.r26 The bilateral boarding agreements concluded recently by the U.S., even where they limit the need to request consent to board, do not authorize the interdicting State to take follow-up action. In fact, most of the agreements provide that the ship and its cargo will not be forfeited to the interdicting State, nor may they prosecute crew members without the flag State's consent. On the high seas, there are very few restrictions on the general presumption of exclusive flag State jurisdiction-in UNCLOS they are limited to the universally condemned offences of piracy and slavery. In times of armed conflict, exclusive flag State jurisdiction is restricted, and UNSC Resolutions can potentially restrict flag States' jurisdiction as well. Finally, flag States can consent to the restriction of their exclusive jurisdiction either by general agreement (as with counter-narcotics agree- ments) or on a case-by-case basis.127 The simple solution to the problem of enforcement jurisdiction would be for offences related to terrorist acts to become offences of universal jurisdiction, similar to piracy. Piracy is subject to the prescriptive jurisdiction of States, who enact domestic laws in relation to its suppression. By necessity, enforcement jurisdiction over piracy offences is also extended to States, but only to the extent that domestic laws fall in line with international standards. Enforcement in excess of international limits cannot be justified by States on the basis of the universality principle,.128 Using the piracy analogy, States could potentially use the PSI's international condemnation of proliferation offences to implement their own national anti-proliferation legislation and enforce it based on universal jurisdiction. Comparing piracy offences to terrorism and proliferation offences initially seems to be a simple connection. Both are universally condemned offences and considered heinous crimes by most national standards.</p><p> However, piracy has a long history of being condemned both internationally and domestically, and its status in both customary and codified international law is sound. A legal definition of terrorist acts has been much more nebulous in the political arena, even though international conventions exist with regard to their suppression. Applying a broad and generally accepted definition of terrorism to proliferation offences is a difficult task, given that proliferation is not necessarily outlawed by the NPT, although subject to strict regulation. In addition, it is easier to carry out enforcement action against an individual carrying out a specific act of piracy. In the case of proliferation, questions arise as to whom to prosecute-the originator of the WMDs or related materials, the party carrying the materials on board its vessel, the party receiving the shipment, or all of those involved in such activities. In fact, the most promising instrument in terms of providing some enforcement jurisdiction over proliferation is the SUA Convention as amended by the 2005 Protocol. The 2005 Protocol gives the flag State enforcement jurisdiction over a detained ship, cargo, and persons on board, including powers of seizure, forfeiture, arrest and prosecution. It also gives the flag State the right to consent to the jurisdiction of another State carrying out these enforcement actions.129 The limitation, again, is that even when the 2005 SUA Convention comes into force with all of its amendments in place, it still is only binding on States party to it.130 V. IMPLICATIONS FOR FREEDOM OF NAVIGATION The above proposals seeking to provide some legitimacy to PSI interdictions have one thing in common-they all compromise the fundamental concept of freedom of navigation on the high seas. Self-defense and national security have traditionally been considered "insecure foundations for seeking to qualify the freedom of the seas, for [they] could lend plausibility to</p><p> restraints that would not sustain the balance of interests of the international community." 131 UNCLOS clearly recognizes freedom of navigation in Article 87, but the right is not absolute. It is to be exercised with due regard to the interests of other States.132 Some authors, however, see such an increase in creeping jurisdiction over the seas in areas such as shipping regulation, fisheries regulation and environmental protection that they believe that all that is left is a "residual freedom of navigation" on the high seas, that is gradually becoming subject to greater and greater contro1.�33 Traditionally, the U.S. has been overtly in favor of maintaining freedom of navigation on the high seas.134 However, the U.S.-led development of the PSI appears to present an opportunity to limit States' freedom of navigation based on security concerns. If the actions of one (albeit quite powerful) State are any indication of the changing international stance on freedom of navigation, then it would be easy to say that the PSI is a legitimate compromise of this right, but the question of whether this viewpoint finds general support in the rest of the international community is not yet clear. The actual effects the PSI will have on freedom of navigation, however, especially in the short term, will be minimal. Given the conclusions I have come to in this article on the potential for PSI members to legitimately take interdiction and enforcement action on the high seas without the consent of the flag State, States need not worry that their freedom of navigation on the high seas will be overly compromised any time in the near future. VI. CONCLUSION In order to legitimate non-flag State interdictions on the high seas without consent for PSI purposes, there must be some fundamental exception available to States' freedom of navigation. Other than the practical solution of obtaining States' consent to interdict, PSI members who wish to remain in compliance with international law have their hands proverbially tied. Michael Byers has suggested that in the extenuating circumstances where</p><p> there is a strongly felt compulsion to act, consent from the relevant sovereign State cannot be obtained, and the Security Council is not prepared to authorize action, States may choose to break the rules without advancing strained and potentially destabilizing legal justifications. By doing so, they allow their action to be assessed subsequently, not in terms of the law, but in terms of its political and moral legitimacy, with a view to mitigating their responsibility rather than exculpating themselves.135 This proposal is certainly not outside the realm of possibility, but clearly does not hold up in international law. The best alternative for PSI participants to ensure that their actions are efficient, effective, and legal is to rely on the interplay between bilateral agreements and the SUA Convention, particularly once the 2005 Protocol comes into force. This is a Pyrrhic victory at best, however, as bilateral agreements and the 2005 Protocol will only bind those States that are parties to them. As always, international law is limited by an overarching concern for State sovereignty that will be slow to adapt to the changing needs of today's security environment.</p></body><back><ref-list><title>Footnotes</title><ref><note><p> ' EDITORS' NOTE.-This article was the winning entry in the 2006 <italic>Ocean</italic> <italic>Yearbook</italic> Student Paper Competition. *The author warmly acknowledges Professor Aldo Chircop's valuable support, guidance and suggestions in the writing of the article. 1. A. Persbo and I. Davis, <italic>Sailing</italic> <italic>Into</italic> <italic>Uncharted</italic> <italic>Waters?</italic> <italic>The</italic> <italic>Proliferation</italic> <italic>Security</italic> <italic>Initiatives</italic> <italic>and</italic> <italic>the</italic> <italic>Lam</italic> <italic>of</italic> <italic>the</italic> <italic>Sea,</italic> British American Security Information Council Research Report 2004.2, (May 2004), p. 18, available online: .</p> </note></ref><ref><note><p> 2. Throughout the article, I will be discussing proliferation in the context of the transfer of WMDs, their component parts, their delivery systems, and related materials. For the sake of brevity and simplicity, I will simply refer to them as either WMDs or WMDs and related materials. 3. Treaty on the Non-Proliferation of Nuclear Weapons, 5 March 1970, 729 <italic>United</italic> <italic>Nation.s</italic> <italic>Treaty</italic> <italic>Series</italic> 161, Art. I. <italic>4.</italic> <italic>Id.,</italic> Art. II.</p></note></ref><ref><note><p><italic>5.</italic><italic>I�l.,</italic> Art. III. 6. J. A. Roach, "Proliferation Security Initiative (PSI): Countering Proliferation by Sea," in M. Nordquist, J.N. Moore and K. Fu, eds., <italic>Recent</italic> <italic>Developments</italic> <italic>in</italic> <italic>the</italic> <italic>Laru</italic> <italic>of</italic> <italic>the</italic> <italic>Sea</italic> <italic>and</italic> <italic>China</italic> (Boston: Martinus Nijhoff, 2006), p. 351. 7. One major component of the WMD section of the strategy is to strengthen non-proliferation efforts to prevent rogue states and terrorists from acquiring the materials, technology and expertise necessary for WMDs. U.S. State Department, <italic>National Security Strategy,</italic> available online: , p. 12. 8. Department of National Defense/Canadian Forces, "Backgrounder: The Proliferation Security Initiative" (June 15, 2004), available online: . <italic>9.</italic> <italic>Id.</italic> 10. D.H. Joyner, "The Proliferation Security Initiative: Nonproliferation, Counterproliferation, and International Law," <italic>Yale Journal</italic> <italic>of</italic> <italic>Int,erreational</italic> <italic>Law</italic> 30 (2004): 507-548, at 534.</p> </note></ref><ref><note><p> 11. PSI, "Exercises," available online: . 12. PSI, "Frequently Asked Questions," available online: . 13. PSI, "Statement of Interdiction Principles," (September 2003), available online: . <italic>14.</italic> <italic>Id.,</italic> Principle 4. 15. <italic>Id.,</italic> Principle 4(d). 16. <italic>Id.,</italic> Principle 4(d).</p> </note></ref><ref><note><p><italic>17.</italic><italic>Id,</italic> Principle 4(b). 18. <italic>Id.,</italic> Principle 4(c). 19. Joyner n. 10 above, p. 535. 20. R.R. Churchill and A.V. Lowe, <italic>The</italic> <italic>Law</italic> <italic>of</italic> <italic>the</italic> <italic>.Sea,</italic> 3rd ed. (Manchester: Manchester University Press, 1999), p. 87. 21. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 <italic>United</italic> <italic>Nations</italic> <italic>Treaty</italic> <italic>Series</italic> 3, Art. 19.</p></note></ref><ref><note><p> 22. <italic>l�t.,</italic> Art. 21. 23. Joyner, n. 10 above, p. 536.</p></note></ref><ref><note><p> 24. UNCLOS, n. 21 above, at Arts. 38 and 39. 25. UNCLOS, n. 21 above, at Art. 42. 26. UNCLOS, n. 21 above, at Art. 27. 27. UNCLOS, n. 21 above, at Art. 73. 28. UNCLOS, n. 21 above, at Art. 87. 29. UNCLOS provides for special rules regarding straddling and highly migratory stocks, and these rules resulted in negotiations towards a multilateral treaty governing the treatment of straddling and highly migratory fish stocks. The negotiations came to fmition with the 1995 United Nations Fish Stocks Agreement, which is broad in both its scope and effects, but is still missing some key signatories.</p></note></ref><ref><note><p> 30. UNCLOS, n. 21 above, at Art. 56. 31. Churchill and Lowe, n. 20 above, p. 264. 32. <italic>Id.,</italic> p. 268. 33. As of March 31, 2006, the COLREGs had 148 contracting States, totaling 97.92 percent of the world's tonnage. Source: IMO, "Status of Conventions," 11 available online: . 34. UNCLOS, n. 21 above, at Article 27(l)(b).</p> </note></ref><ref><note><p> 35. Bureau of Nonproliferation, Proliferation Security Initiative Shipboarding Agreement with Liberia, Art. 1, available online: . 36. <italic>l�l.,</italic> Article 4(3). 37. Roach, n. 6 above, p 355. 38. U.S. State Department, "Proliferation Security Initiative," available online: 39. UNCTAD <italic>Review</italic> <italic>of</italic> <italic>Maritime</italic> <italic>Transport</italic> <italic>2005</italic> (New York: United Nations, 2004), p. 35. 40. M. Byers, "Policing the High Seas: The Proliferation Security Initiative," <italic>American</italic> <italic>Journal</italic> <italic>o/'</italic> <italic>International</italic> <italic>Law</italic> 98 (2004): 526-545, 540.</p> </note></ref><ref><note><p> 41. Churchill and Lowe, n. 20 above, p. 219. 42. Byers, n. 40 above, p. 539. 43. For example, the 1998 UN Vienna Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and the 1995 Council of Europe Agreement on Illicit Traffic By Sea. 44. U.S. Bureau for International Narcotics and Enforcement Affairs, Interna- tional Narcotics Control Strategy Report, "March 2006, Policy and Program</p></note></ref><ref><note><p> Developments," available online at: </note></ref><ref><note><p> 45. Byers, n. 40 above, p. 531. 46. S. Nandan, S. Rosenne and N. Grandy, eds., <italic>United</italic> <italic>Nations</italic> <italic>Coniiention</italic> <italic>on</italic> <italic>the</italic> <italic>Law</italic> <italic>of the</italic> <italic>Sea</italic> <italic>1982:</italic> <italic>A</italic> <italic>Commentary,</italic> <italic>Volume</italic> <italic>III,</italic> <italic>Second</italic> <italic>Committee:</italic> <italic>High</italic> <italic>Seas,</italic> <italic>Regime</italic> <italic>of</italic> <italic>Islands,</italic> <italic>Enclosed</italic> <italic>or</italic> <italic>Semi-enclosed</italic> <italic>Seas,</italic> <italic>and</italic> <italic>Right</italic> <italic>of</italic> <italic>Access</italic> <italic>of</italic> <italic>La7ad-locked</italic> <italic>States</italic> <italic>to</italic> <italic>an.d from</italic> <italic>the</italic> <italic>Sea</italic> <italic>and</italic> <italic>Freedom</italic> <italic>of</italic> <italic>Transit</italic> <italic>(1995)</italic> (Boston: Martinus Nijhoff, 1995), p. 239. 47.Joyner, n. 10 above, p. 534.</p></note></ref><ref><note><p> 48. D.H.Joyner, "The PSI and International Law," CITS Quarterly Report, <italic>The</italic> <italic>Monitor</italic> 10 (2004): 7-9. 49. The UN Fish Stocks Agreement came into force as its own agreement rather than as an amendment to the convention, simply because the amending procedure was deemed inappropriate for the purposes of the new agreement. Part XI of UNCLOS actually does constitute an amendment to UNCLOS, but constitutes an entire section on a unique issue, rather than acting as an amendment to the wording of one specific provision. 50. UNCLOS., n. 21 above, at Art. 312.</p></note></ref><ref><note><p> 51. Article 313 outlines a Simplified Amendment Procedure, in which no conference is necessary. Instead, States party to the Convention are notified of the proposed amendment and have twelve months to respond. If one State party rejects the proposal, the amendment will not pass. The advantage to the process is that there is no need for the 50 percent approval necessary under Article 312-if twelve months pass and no rejections are registered, then the amendment is adopted. 52. UNCLOS, n. 21 above, at Art. 315. 53. UNCLOS, n. 21 above, at Art. 316. 54. Nandan et al., n. 46 above, para. 92.6(a). 55. Nandan et al., n. 46 above, para 92.6(e). 56. I. Brownlie, <italic>Principles</italic> <italic>of Public</italic> <italic>International</italic> <italic>Law</italic> (Toronto: Oxford University Press, 2003), p. 237.</p></note></ref><ref><note><p> 57. Although in a piracy context, which will be discussed at more length below, the national law of the apprehending State may still be applied. 58. <italic>Id.,</italic> at 301. 59. Nandan et al., n. 46, p. 91. 60. B. Boczek, "Peaceful! Purposes Provisions of the United Nations Conven- tion on the Law of the Sea," <italic>Ocean.</italic> <italic>Development</italic> <italic>and</italic> <italic>International</italic> <italic>Lara</italic> 20 (1989): 343-459, p. 349. 61. <italic>1�.,</italic> p. 351. 62. <italic>Id.,</italic> p. 357. Notably, disputes regarding military activities can be excepted from third-party binding dispute settlement.</p></note></ref><ref><note><p> 63. UNCLOS, n. 21 above, at Art. 301. 64. Boczek, n. 60 above, p. 360. 65. R. Rayfuse, "Regulation and Enforcement in the Law of the Sea: Emerging Assertions of a Right to Non-flag State Enforcement in the High Seas Fisheries and Disarmament Contexts," 24 <italic>Australian</italic> <italic>Yearbook</italic> <italic>of</italic> <italic>Internacional</italic> <italic>Law</italic> 24 (2005): 181-201, p. 199. 66. <italic>Charter</italic> <italic>of the</italic> <italic>United</italic> <italic>Nations,</italic> 26 June 1945, Can. T.S. 1945 No. 7, Chapter VII.</p></note></ref><ref><note><p><italic>67.</italic><italic>Id.,</italic> Article 42. 68. Byers, n. 40 above, p. 531. 69. U.S. State Department Proliferation Security Initiative, "Frequently Asked Questions," available online: . The official statement on the Web site is that the PSI's Statement of Interdiction Principles and Operating Paragraph 10 of Resolution 1540 are mutually reinforcing and legally and politically compatible. The effect of this statement is to give the impression that Resolution 1540 justifies the inclusion of almost any measures in the Statement of Interdiction Principles, as long as the measures are in the name of international cooperative action. 70. PSI, available online: . 71. See n. 69 above. 72. UNSCOR, 59th Year, 4956th Mtg., UN Res. S/RES/1540 (2004), Preamble.</p> </note></ref><ref><note><p><italic>73.</italic><italic>Id.,</italic> Arts. 2-3. 74. Persbo and Davis, n. 1 above, p. 75. 75. UN Security Council Committee established pursuant to Resolution 1540 (2004), Report to Security Council. 8 December 2004, UN Doc. S/2004/958 at p. 2. 76. Resolution 1540, n. 72 above, at Art. 4. The Committee called upon Member States to submit initial reports by 28 October 2004, and at the first reporting stage, 87 of 191 states had submitted reports for consideration. The Committee appointed experts to help them consider the national reports, and at the second reporting stage (16 December 2005), 124 of 191 member states had submitted reports to the committee. 77. UN Security Council Committee established pursuant to Resolution 1540 (2004), Report to Security Council, 16 December 2005, UN Doc. S/2005/799, Appendix I.</p></note></ref><ref><note><p><italic>78.</italic><italic>Id.,</italic> para. 28. 79. Press Release, 27 April 2006, Security Council 5429th Meeting. "Security Council Extends for 2 Years Mandate of Committee Monitoring Implementation of Resolution 1540 (2004) on Mass Destruction Weapons," available online: . 80. UN Security Council Committee established pursuant to Resolution 1540 (2004) U.S. Report to Committee, 16 October 2004, UN Doc. S/AC.44/2004/ (02)/5, p. 32. 81. For comparison purposes, the Canadian Report to the 1540 Committee highlights Canada's work under Paragraph 10 of the resolution as actively promoting a number of voluntary and politically binding international measures set up to restrain and prevent the proliferation of WMDs, active participation in the PSI by promoting the strengthening of international export control regimes and export safety/national control measures, and involvement in efforts to strengthen the SUA</p> </note></ref><ref><note><p> Convention at the IMO, especially with respect to the inclusion of new offences (Canadian Report to 1540 Committee, 31 December 2004, p.18); See SUA Convention at n. 113 below. 82. Joyner, n. 10 above, p. 538. 83. The "imminent threat" concept will be discussed further below, in the self- defense section of this article. 84. Although China endorses the goals of the PSI in principle, it has some major concerns with the initiative. First, that the Interdiction Principles lack a solid basis in international law, and may in fact nm counter to existing international law; second, that the UN Security Council should be the core body maintaining international peace and security; third, the fact that the PSI may rely on</p></note></ref><ref><note><p> questionable intelligence; and finally, that it relies heavily on military tools to combat proliferation, rather than addressing proliferation's root causes. For more information, see Ru'an and Qinghai, "The PSI: Chinese Thinking and Concern," <italic>The</italic> <italic>Monitor</italic> 10 (2004): 22-24. 85. Byers, n. 40 above, p. 532. 86. UN Charter, n. 65 above, at Art. 51. <italic>87.</italic> <italic>Military</italic> <italic>and</italic> <italic>Paramilitary</italic> <italic>Activities</italic> <italic>in</italic> <italic>and</italic> <italic>Against</italic> <italic>Nicaragua</italic> <italic>(Nicaragua</italic> <italic>v.</italic> <italic>United</italic> <italic>.States</italic> <italic>of</italic> <italic>America),</italic> Merits,Judgment. [ 1986] ICJ Reports 14, as reproduced in H. Kindred and P. Saunders, eds., <italic>In.lerrcational</italic> <italic>Lava</italic> <italic>Chiefly</italic> <italic>as</italic> <italic>Interfn-eted</italic> <italic>and</italic> <italic>Applied</italic> <italic>in</italic> <italic>Canada,</italic> 7th ed. (Toronto: Emond Montgomery Publications, 2006), p. 1113.</p></note></ref><ref><note><p><italic>88.</italic><italic>The</italic><italic>Caroline</italic><italic>(United</italic><italic>Kingdom</italic><italic>v.</italic><italic>Unite</italic><italic>States)</italic> (1837), 2 Moore 409; as reproduced in Kindred and Saunders, n. 87, p. 1138. 89. I.P. Barry, "The Right of Visit, Search and Seizure of Foreign Flagged Vessels on the High Seas Pursuant to Customary International Law: A Defense of the Proliferation Security Initiative," <italic>Hofstra</italic> <italic>Law</italic> <italic>Reniern</italic> 33 (2004): 299-330, p. 324. 90. The White House, <italic>National</italic> <italic>Security</italic> <italic>,Stralegy</italic> <italic>of</italic> <italic>the</italic> <italic>United</italic> <italic>States</italic> <italic>of</italic> <italic>America</italic> (September 2002), available online: , p. 15. 91. Byers, n. 40 above, p. 541. 92. Persbo and Davis, n. 1 above, p. 70.</p> </note></ref><ref><note><p> 93. The defense of U.S. action in the Cuban quarantine on the basis of preemptive self-defense has also been supported by some academics in its use as a precedent for the U.S. invasion of Iraq. See Byers, n. 40 above, p. 533. 94. D.P. O'Connell, <italic>The</italic> <italic>Internacional</italic> <italic>Lam of</italic> <italic>the</italic> <italic>Sea,</italic> Volmne 2 (New York: Clarendon Press, 1982-84), pp. 807-808. 95. Churchill and Lowe, n. 20 above, p. 217.</p></note></ref><ref><note><p> 96. International Convention against the Taking of Hostages, opened for signature at New York, 18 December 1979, available online: . 97. M.N. Shaw, <italic>International</italic> <italic>Lam,</italic> 5th ed. (New York: Cambridge University Press, 2003), p. 592. 98. (1985) 776 F.2d 931. 99. <italic>Id.,</italic> para. 11. <italic>100.</italic> <italic>Id.,</italic> para. 10. 101. <italic>Id.,</italic> para. 12. 102. Churchill and Lowe, n. 20 above, p. 139.</p> </note></ref><ref><note><p> . 103. <italic>The</italic> <italic>Steamship</italic> <italic>Lotus,</italic> <italic>France</italic> <italic>11.</italic> <italic>Turkey</italic> <italic>(1927),</italic> PCIJ, Series A, No.lO, 1927 as cited in Shaw, n. 97 above, p. 581. 104. Shaw, n. 97 above, p. 584. 105. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 <italic>United</italic> <italic>Nations</italic> <italic>Treaty</italic> <italic>Series</italic> 287, Art. 2; Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 <italic>United</italic> <italic>Nations</italic> <italic>Treaty</italic> <italic>Series</italic> 135, Art. 2. 106. <italic>Id.</italic></p></note></ref><ref><note><p> 107. L. Doswald Beck, ed., <italic>San</italic> <italic>Remo</italic> <italic>Manual</italic> <italic>on</italic> <italic>Intrrnafional</italic> <italic>Laru</italic> <italic>Applicable</italic> <italic>to</italic> <italic>Armed</italic> <italic>Conflicts</italic> <italic>at</italic> <italic>Sea,</italic> (New York: Cambridge University Press, 1995), p. 195, para. 118. 108. <italic>Id.,</italic> explanation, para. 118.3. 109. <italic>Id.,</italic> explanation, para. 118.1. 110. Persbo and Davis, n. 1 above, p. 64. 111. For a variety of views on this subject, see V. Held, "Terrorism and War," <italic>Journal</italic> <italic>of</italic> <italic>Ethics</italic> 8 (2004): 59-75; K. Roth, "The Law of War in the War on Terror- Washington's Abuse of Enemy Combatants," <italic>Foreign</italic> <italic>Affairs</italic> 83 (2004): 2-7; A. Roberts, "Counter-terrorism, armed force and the laws of war," <italic>Survival 44</italic> (2002): 7-32. 112. Persbo and Davis, n. 1 above, p. 64.</p></note></ref><ref><note><p> 113. IMO, Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988, available online: . 114. Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, text adopted by the IMO International Conference on the Revision of the SUA Treaties, 1 November 2005, LEG/CONF.15/21, Preamble. 115. BCN weapons are defined in the Convention as encompassing biological, chemical or nuclear weapons-for the purposes of this article, BCN weapons are the same as WMDs.</p> </note></ref><ref><note><p> 116. 2005 Protocol, n. 114 above, Art. 4(5), proposed Art. <italic>3bis.</italic> 117. 2005 Protocol, n. 114 above, Art. 4, proposed Art. <italic>3bis</italic> ( 1 ) (b). 118. 2005 Protocol, n. 114 above, Art. 8(2), proposed Art. <italic>8bis.</italic> 119. 2005 Protocol, n. 114 above, Art. 8(2), proposed Art. <italic>8bis(5) (d).</italic></p></note></ref><ref><note><p> 120. 2005 Protocol, n. 114 above, Art. 8(2), proposed Art. 8bis(7). 121. M.E. Beck, "The Promise and Limits of the PSI," <italic>The</italic> <italic>Monitor</italic> 10 (2004): 16-17. In fact, the only country known to be exporting "ready-made WMDs" is North Korea. 122. Chatham House International Law Discussion Group, "Shipboarding: An Effective Measure Against Terrorism and WMD Proliferation?," summary of the discussion held on 24 November 2005, available online: .</p> </note></ref><ref><note><p> 123. UNCLOS, n. 21 above, at Art. 311. 124. 2005 Protocol, n. 114 above, at Art. 17.</p></note></ref><ref><note><p> 125. O'Connell, n. 94 above, p. 1071. 126. Persbo and Davis, n. 1 above, p. 64. 127. Kindred and Saunders, n. 87 above, p. 957. 128. Kindred and Saunders, n. 87 above, p. 958.</p></note></ref><ref><note><p> 129. 2005 Protocol, n. 114 above, at Art. 8(2), proposed Art. 8bis(8). 130. The Comite Maritime International's February 2006 Report to the Maritime Safety Committee and Legal Committee of the IMO on its work relating to Criminal Offences committed on Foreign Flagged Ships indicates that the CMI is currently in the process of drafting a <italic>Model</italic> <italic>National</italic> <italic>Law</italic> <italic>on</italic> <italic>Maritime</italic> <italic>Criminal</italic> <italic>Acts.</italic> The draft is expected to be submitted to the IMO for consideration in early 2007, and is expected to address the changing security environment post 9/11. It is expected to extend beyond piracy to consider, <italic>inter</italic> <italic>alia,</italic> the 2005 Protocols to the SUA Convention. These Model National Laws will provide interesting policy guidance for States when they are finalized, and may also eventually open the possibility for broader enforcement jurisdiction than is currently available at international law.</p></note></ref><ref><note><p> 131. O'Connell, n. 94 above, p. 797. 132. UNCLOS, n. 21 above, at Art. 87. 133. S. Bateman, D. Rothwell and D. VanderZwaag, "Navigational Rights and Freedoms in the New Millennium: Dealing with 20th Century Controversies and 21st Century Challenges," in D. Rothwell and S. Bateman eds., <italic>Nanigation.al</italic> <italic>Rights</italic> <italic>and</italic> <italic>Freedoms</italic> <italic>aid</italic> <italic>the</italic> <italic>Nern</italic> <italic>Lam</italic> <italic>of the .Sea</italic> (London: Kluwer Law International, 2000), p. 326. 134. As evidenced by their Freedom of Navigation program implemented to prevent excessive coastal State claims over the ocean. See Wikipedia article on Freedom of Navigation, available online: .</p> </note></ref><ref><note><p> 135. Byers, n. 40 above, p. 543.</p></note></ref></ref-list></back></article></istex:document></istex:metadataXml><mods version="3.6"><titleInfo><title>Staying Afloat in International Law: The Proliferation Security Initiative's Implications for Freedom of Navigation +</title></titleInfo><titleInfo type="alternative" contentType="CDATA"><title>Staying Afloat in International Law: The Proliferation Security Initiative's Implications for Freedom of Navigation +</title></titleInfo><name type="personal"><namePart type="given">Hilary</namePart><namePart type="family">Clark</namePart><affiliation>LL.B. 2006, Dalhousie University Law School, Halifax, Canada*</affiliation></name><typeOfResource>text</typeOfResource><genre type="other" displayLabel="N/A" authority="ISTEX" authorityURI="https://content-type.data.istex.fr" valueURI="https://content-type.data.istex.fr/ark:/67375/XTP-7474895G-0"></genre><originInfo><publisher>Martinus Nijhoff</publisher><place><placeTerm type="text">Netherland</placeTerm></place><dateIssued encoding="w3cdtf">2007</dateIssued><copyrightDate encoding="w3cdtf">2007</copyrightDate></originInfo><language><languageTerm type="code" authority="iso639-2b">eng</languageTerm><languageTerm type="code" authority="rfc3066">en</languageTerm></language><relatedItem type="host"><titleInfo><title>Ocean Yearbook Online</title></titleInfo><titleInfo type="abbreviated"><title>OCYO</title></titleInfo><genre type="journal" authority="ISTEX" authorityURI="https://publication-type.data.istex.fr" valueURI="https://publication-type.data.istex.fr/ark:/67375/JMC-0GLKJH51-B">journal</genre><identifier type="ISSN">0191-8575</identifier><identifier type="eISSN">2211-6001</identifier><part><date>2007</date><detail type="volume"><caption>vol.</caption><number>21</number></detail><detail type="issue"><caption>no.</caption><number>1</number></detail><extent unit="pages"><start>441</start><end>474</end></extent></part></relatedItem><identifier type="istex">E1129D2C8BB2BD9AAE0B4CEEC60FDCB4EEE69D9D</identifier><identifier type="ark">ark:/67375/JKT-2M3RN67R-1</identifier><identifier type="DOI">10.1163/221160007X00182</identifier><accessCondition type="use and reproduction" contentType="copyright">Please complete manually after checking copyright year in the copy of the book</accessCondition><recordInfo><recordContentSource authority="ISTEX" authorityURI="https://loaded-corpus.data.istex.fr" valueURI="https://loaded-corpus.data.istex.fr/ark:/67375/XBH-56W3KPD5-3">brill-journals</recordContentSource><recordOrigin>Please complete manually after checking copyright year in the copy of the book</recordOrigin></recordInfo></mods><json:item><extension>json</extension><original>false</original><mimetype>application/json</mimetype><uri>https://api.istex.fr/document/E1129D2C8BB2BD9AAE0B4CEEC60FDCB4EEE69D9D/metadata/json</uri></json:item></metadata><serie></serie></istex></record>Pour manipuler ce document sous Unix (Dilib)
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