Blurring the ocean zones: The effect of the Proliferation Security Initiative on the customary international law of the sea

Ocean Development and International Law

Volumn 37, Issue 1, 2006, Pages 33-53

  Perry, Timothy C ^a,b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b NONE   (United States)

Author keywords

Jurisdiction; Proliferation security initiative; Ship boarding agreements; United States

Indexed keywords

INTERNATIONAL AGREEMENT; LAW OF THE SEA; MARINE POLICY;

EID: 31844448664     PISSN: 00908320     EISSN: 15210642     Source Type: Journal    
DOI: 10.1080/00908320500474023     Document Type: Article

References (171)

1. Michael Byers, "Policing the High Seas: The Proliferation Security Initiative," 98 Am. J. Int'l L. 526, 526 (2004).
2. William Safire, "Buh's Stumble: The So San Affair," New York Times, December 19, 2002, at 39.
3. Byers, supra note 1, at 526.
4. Id.
5. See, e.g., Joby Warrick, "On North Korean Freighter, a Hidden Missile Factory," Washington Post, August 14, 2003, at A1.
6. Department of Homeland Security, "Secure Seas, Open Ports, Keeping Our Waters Safe, Secure and Open for Business," June 21, 2004, available at www.dhs.gov/interweb/assetlibrary/ DHSPortSecurityFactSheet-062104.pdf.
7. John S. Burnett, "The Next 9/11 Could Happen at Sea," New York Times, February 22, 2005, at A17.
8. David E. Sanger and Thom Shanker, "Threats and Responses: War Materiel; Reluctant U.S. Gives Assent for Missiles to Go to Yemen," New York Times, December 12, 2002, at A1.
9. White House Facts Sheet, "Proliferation Security Initiative: Statement of Interdiction Principles, September 4, 2003" (herinafter, PSI Principles), available at www.state.gov/t/np/rls/fs/ 23764.htm.
10. See Sean D. Murphy, "Proliferation Security Initiative for Searching Potential WMD Vessels," 98 Am. J. Int'l L. 355 (2004).
11. The U.S. Administration has also proposed outlawing the transport of WMD. This enterprise is beyond the scope of this paper. See Daniel Joyner, "The PSI and International Law," 10 The Monitor 1, 7 (2004), available at www.uga.edu/cits/documents/ pdf/monitor/monitor⊃_2004.pdf.
12. PSI Principles, supra note 9, preambular paragraph.
13. PSI Principles, supra note 9, Principle 4.
14. See, e.g., Jon M. Van Dyke, "Perspective: Balancing Navigational Freedom with Environmental and Security Concerns," Colo. J. Int'l Envtl. L. & Pol'y 19 (2003) and Byers, supra note 1.
15. Ian Patrick 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," 33 Hofstra L. Rev. 299 (2004). For mostly approving descriptions of the PSI, see also the Spring edition of The Monitor, a publication of the Center for International Trade and Security, published at the University of Georgia, available at www.uga.edu/cits/documents/pdf/ monitor/ monitor⊃_2004.pdf.
16. One critical voice here, Michael Beck, "The Promise and the Limits of PSI,2: 10 The Monitor 1, 16 (2004), notes that because most WMDs arrive part-by-part in numerous shipments, and because 95% of WMD parts are dual-use, intelligence officials will have a difficult time establishing their suspicions.
17. These distinctions are taken from Daniel Bodansky, "Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III and Beyond," 18 E.L.Q. 719, 731 (1991).
18. See Restatement (Third) of Foreign Relations Law of the United States §401(a) (1987) and United Nations Convention on the Law of the Sea (UNCLOS), 1833 U.N.T.S. 397, Arts. 207-212.
19. See Restatement, supra note 15, §401(b) and UNCLOS, supra note 15, Arts. 213-222. UNCLOS does not explicitly distinguish between enforcement and adjudicative jurisdiction in the treaty text.
20. See Restatement, supra note 15, §401(c).
21. See Restatement, supra note 15, §401, comment a.
22. UNCLOS, supra note 15, has been ratified by 147 states and supercedes both the Convention on the High Seas, 450 U.N.T.S. 11
23. and the Convention on the Territorial Sea and the Contiguous Sea, 516 U.N.T.S. 205.
24. It largely reflects customary international law and thus binds all states, regardless of whether they have ratified UNCLOS. While the United States has not yet ratified UNCLOS, it does follow provisions of UNCLOS. See Luke T. Lee, "The Law of the Sea Convention and Third States," 77 Am. J. Int'l L. 541, 552 (1983).
25. The baseline is normally "the low water line along the coast as marked on large-scale charts officially recognized by the coastal state." See UNCLOS, supra note 15, Art. 5.
26. UNCLOS, supra note 15, Art. 2.
27. See Bernard H. Oxman, From Cooperation to Conflict: The Soviet Union and the United States at the Third U.N. Conference on Law of the Sea, 4-9 (1985).
28. UNCLOS, supra note 15, Art. 3.
29. UNCLOS, supra note 15, Art. 87.
30. Grotius spoke of this freedom in Mare Liberum and some evidence indicates that Roman law recognized the freedom of navigation. See Lawrence Marin, "Oceanic Transportation of Radioactive Materials: The Conflict Between the Law of the Seas, Right of Innocent Passage and Duty to the Marine Environment," 13 Fla. J. Int'l L. 361, 364 (2001 ).
31. UNCLOS, supra note 15, Art. 17.
32. UNCLOS, supra note 15, Art. 19.
33. Id.
34. UNCLOS, supra note 15, Art. 21.
35. This proposition was perhaps best articulated in "Summary of Canadian Note of April 16," Tabled by the Secretary of State for External Affairs in the House of Commons April 17, reprinted in 9 I.L.M. 607, 610-11 (1970).
36. Regina v. Keyn, 2 Ex. D. 63 (1876) (finding that "such a frontier or belt of water is necessary for the defence and security of the adjacent state")
37. reprinted in Louis B. Sohn and John E. Noyes, Cases and Materials in the Law of the Sea 413, 414 (2004).
38. See, e.g., Church v. Hubbart, 6 U.S. (2 Cranch) 187 (1804).
39. UNCLOS, supra note 15, Art. 24.
40. UNCLOS, supra note 15, Art. 24(2).
41. UNCLOS, supra note 15, Art. 24(1).
42. UNCLOS, supra note 15, Art. 24.
43. Presidential Proclamation No. 2667, Sept. 28, 1945, 3 C.F.R. §67 (1945) (asserting jurisdiction over resources embedded in the continental shelf) and Presidential Proclamation No. 2668, Sept. 28, 1945 3 C.F.R. §68 (asserting jurisdiction over coastal fishery resources) (1945).
44. See Ann L. Hollick, "The Origins of 200-Mile Offshore Zones," 71 Am. J. Int'l L. 494 (1977).
45. UNCLOS, supra note 15, Art. 56.
46. UNCLOS, supra note 15, Art. 57.
47. UNCLOS, supra note 15, Art. 56(1)(a).
48. UNCLOS, supra note 15, Art. 56(1)(b).
49. Tullio Scovazzi, The Evolution of the International Law of the Sea: New Issues, New Challenges, 162 (2001).
50. Jon Van Dyke, ♂ilitary Ships and Planes Operating in the Exclusive Economic Zones of Another Country," paper presented at a conference sponsored by the Ship and Ocean Foundation and the East West Center, Tokyo, February 19-20, 9 (2003).
51. The International Tribunal on the Law of the Sea (ITLOS) has interpreted coastal state jurisdiction over the EEZ in a restrictive manner. See The M/V "Saiga" (No. 2) Case, St. Vincent and the Grenadines v. Guinea (Admissibility and Merits) (ITLOS, 1999), available at www.itlos.org/ start2_en.html, and 38 I.L.M. 1323 (1999).
52. UNCLOS, supra, note 15, Art. 292.
53. See Hollick, supra note 37, at 494.
54. Compare the Truman Proclamation, supra note 36 (asserting "the exercise of jurisdiction over the natural resources") with the Chilean Presidential Declaration Concerning the Continental Shelf, June 23, 1947
55. reprinted in M. Whitman, Digest (Vol. 4), 794 (1948) (asserting "its national sovereignty over all the continental shelf").
56. A good example of such disputes are the "Cod Wars," in which British and Icelandic naval vessels mobilized to protect contending claims to fisheries. The dispute culminated in the Fisheries Jurisdiction Case (United Kingdom v. Iceland), [1974] I.C.J. Rep. 3.
57. See Hannes Jónsson, Friends in Conflict: The Anglo-Icelandic Cod Wars and the Law of the Sea (1982).
58. Hugo Grotius, The Freedom of the Seas
59. reprinted in Sohn and Noyes, supra note 30, at
60. See also UNCLOS, supra note 15, Art. 89.
61. UNCLOS, supra note 15, Art. 92(1).
62. UNCLOS, supra note 15, Art. 37.
63. See UNCLOS, supra note 15, Art. 42.
64. UNCLOS, supra note 15, Art. 42(2).
65. UNCLOS, supra note 15, Art. 42(5).
66. UNCLOS, supra note 15, Art. 38.
67. UNCLOS, supra note 15, Art. 45(2).
68. See UNCLOS, supra note 15, Art. 53.
69. UNCLOS, supra note 15, Art. 54.
70. UNCLOS, supra note 15, Art. 53(3).
71. This distinction finds its origin in geographic and political realities. Archipelagic states enjoy a special baseline regime that allows them to encompass within their territorial sea waters that would otherwise lie outside. Maritime states conceded this special exception on the condition of a liberal archipelagic sea lanes provision in UNCLOS. See Restatement (Third), supra note 15, §513, Reporters' note 4.
72. PSI Principles, supra note 9, preambular paragraph.
73. States generally exercise greater jurisdiction over ships bound for their ports than they do over ships not otherwise bound. The question of port state jurisdiction is beyond the scope of this paper.
74. White House Office of the Spokesman, "Proliferation Security Initiative - Paris Meeting of Core Participants," September 3-4, 2003, September 2, 2003, available at www.state.gov/r/pa/ prs/ ps/2003/23673.htm and Byers, supra note 1, at 528-29.
75. Office of the White House Press Secretary, "Statement by President: Panama's Signing of Ship Boarding Agreement," May 12, 2004, available at www.state.gov/t/np/rls/prsrl/32420.htm.
76. "U.S., Marshall Islands, Sign Pact to Search Each Other's Ships," Homeland Security and Defense, September 9, 2004.
77. Press releases concerning these agreements are available at www.state.gov/t/np/c12212.htm.
78. The agreement with Liberia is excerpted in Murphy, supra note 9, at 355 (2004).
79. Note that the United States has considered Security Counsel Resolutions (see Security Council Resolution 1540, S/RES/1540, 28 April 2004) and proposed amendments to the 1988 Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 27 I.L.M. 672 (1988), to lend additional support for the PSI.
80. See Andreas Persbo and Ian Davis, "Sailing into Uncharted Waters? The Proliferation Security Initiative and the Law of the Sea," British American Security Information Security Council, available at www.basicint.org/pubs/Research/04PSI.htm.
81. Michael Byers, supra note 1, at 529 and "The New Multilateralism," Wall Street Journal, January 8, 2004, at A22.
82. See President's Remarks at the United Nations General Assembly, White House Press Release, available at www.whitehouse.gov/news/releases/2002/ 09/20020912-1.html.
83. "U.S., Marshall Islands, Sign Pact to Search Each Other's Ships," supra note 65.
84. PSI Principles, supra note 9,
85. preambular paragraph and see supra note 10.
86. See also Rebecca Weiner, "Proliferation Security Initiative to Stem Flow of WMD Materiél, July 16, 2003," available at www.cns.miis.edu/ pubs/week/030716.htm
87. and Rajat Pandit, "Nukes on the High Seas: India Chary about U.S. Stance," Times of India, January 30, 2005.
88. North Korea considers the PSI a "brigandish naval blockade" akin to "terrorism in the sea and a gross violation of international law." Samantha Maiden, The Advertiser, July 14, 2003, quoted in Weiner, supra note 71.
89. Byers, supra note 1, at 529. Note that here the suspect ship was German-owned, not German-flagged. In this case Germany did not have the authority to grant permission for another state to interdict the ship. However, Germany was able to persuade its national, who owned the ship, to order the ship to port.
90. Michel Foucault, Discipline and Punish: The Birth of the Prison, 135 (1974).
91. See, e.g., a general description of this phenomenon in Howard Zinn, A People's History of the United States: 1942 to the Present, 386 (1980).
92. "The National Security Strategy of the United States of America" (September 2002), available at www.whitehouse.gov/nsc/nss.pdf ("The struggle against global terrorism is different from any war in our history"). This same notion is discussed at length in John Yoo and Robert Delahunty, "Memorandum for William J. Haynes II General Counsel," Department of Defense, January 9, 2002, available at lawofwar.org/ Yoo_Delahunty_Memo.htm and summarized in Alberto Gonzales, "Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban," available at msnbc.msn.com/id/4999148/site/newsweek/.
93. "The National Security Strategy," supra note 76.
94. Kenneth O'Rourke, "Commentary - Maritime & Coalition Operations," in F.L. Borch and P.S. Wilson (eds.), International Law and the War on Terror, 297-99 (2003). Of course, if a ship flew an Afghani or "Al Qaeda" flag, then the U.S. Navy could interdict such ships. Indeed, the U.S. Navy could attack such ships as belligerents. But if the ship is not flying a belligerent's flag - and note that because Al Qaeda is a nonstate actor it has no flag - then the U.S. Navy can only interdict on the limited bases outlined above Section I.E.
95. Charter of the United Nations, 59 Stat. 1031 (1945).
96. See The Caroline, Moore, Digest of International Law, Vol. 2, 412 (1906).
97. Michael Walzer, Just and Unjust Wars, 80-85 (1977).
98. See The Carolone, supra note 80, at 412: "[E]xceptions [to the law of self-defense] should be confined in cases where the 'necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation."
99. Note that the Bush Administration uses the term preemptive almost to the exclusion of the term preventive. The Administration's usage is not to be understood as a legal conclusion.
100. "National Security Strategy, supra note 76, ("The struggle against global terrorism is different from any war in our history");
101. John Yoo and Will Trachman, "Less Than Bargained for: The Use of Force and the Declining Role of the United Nations," 5 Chi. J. Int'l L. 379 (2005);
102. Yoo and Delahunty, supra note 76;
103. and Gonzales, supra note 76.
104. "National Security Strategy," supra note 76.
105. Id.
106. See UNCLOS, supra note 15, Art. 110.
107. The United States interdicts drug traffickers on the high seas. However, the United States does so on the basis of bilateral treaties, rather than on the basis of customary international law. The interdictions of drug traffickers thus have no relevance to the question of establishing preventive self-defense in the form of interdictions on the high seas.
108. UNCLOS, supra note 15, Art. 109.
109. Byers, supra note 1, at 529.
110. Byers, supra note 1, at 543.
111. Michael Evans, "US Plans to Seize Suspects at Will," Times of London, July 11, 2003, at 23.
112. Wade Boese, "The Proliferation Security Initiative: An Interview with John Bolton," available at www.armscontrol.org/act/2003_12/PSI.asp.
113. John Bolton, "Legitimacy in International Affairs: The American Perspective in Theory and Operation," remarks to the Federalist Society, Washington, D.C., November 13, 2003, available at www.state.gov/ t/us/rm/26143pf.htm, quoted in Byers, supra note 1, at 541.
114. See also John R. Bolton, "War, International Law and Sovereignty: Reevaluating the Rules of the Game in a New Century," 5 Chi. J. Int'l L. 395 (2005).
115. "The New Multilateralism," Wall Street Journal (Eastern Edition), January 8, 2004, at A22.
116. Thomas Donnelly and Vance Serchuk, "Transforming America's Alliances," American Enterprise Institute Online, January 1, 2005, available at www.aei.org/publications/pubID.21756,filter.all/ pub_detail.asp.
117. See also Gary Schmitt, "John Edward: Disrespecting our allies," The Weekly Standard, Sept. 1, 2004, available at www.weeklystandard.com/ Content/Public/Articles /000/000/004/544xedeb.asp ("Cohesion is not consensus; it needs to be understood in the future more in terms of getting the job done for the common good and less in terms of waiting for agreement by every member").
118. See generally, Jim Mann, The Rise of the Vulcans: The History of Bush's War Cabinet (2004).
119. See, for example, Peter Spiro, "Case Studies in Conservative and Progressive Legal Orders: Disaggregating U.S. Interests in International Law," 27 Law and Contemporary Problems 195, 200 (2004)
120. and James Gustav Speth, "International Environmental Law: Can It Deal with the Big Issues?", 28 Vt. L. Rev. 779, 790-791 (2004).
121. Liberian Ship-boarding Agreement, Art. 3(c)(i), reprinted in Murphy, supra note 9, at 356.
122. Liberian Ship-boarding Agreement, supra note 99, Art. 3(d).
123. The Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, "Report to the President of the United States," March 31, 2005, available at www.nytimes.com/packages/ pdf/politics/20050331_wmd_report.pdf. The Report does not specify in which ocean zones the United States would seek to enforce the requirement that ships provide their location.
124. Ibid., at 527.
125. Id.
126. Hearing before the Committee on Foreign Relations, U.S. Senate, 104th Cong., 2d session, prepared statement by William J. Perry, 123 March 28,1996.
127. See Scott Sagan, "The Commitment Trap: Why the United States Should not Use Nuclear Weapons to Deter Biological and Chemical Weapons Attacks," 24 International Security 4, 85 (2000).
128. Quoted in Dana Priest and Walter Pincus, "U.S. Rejects 'No First Use' Atomic Policy: NATO Needs Strategic Option, Germany Told," Washington Post, November 24, 1998, at A24.
129. T.C. Schelling, "Nuclear Strategy in Europe," 14 World Politics 421, 423 (1962)
130. and T.C. Schelling, The Strategy of Conflict (1960).
131. See also Robert Powell, "Nuclear Brinkmanship with Two-Sided Incomplete Information," 82 Am. Pol. Sci. Rev. 142 (1988).
132. Legal scholars may find the term "chicken" flippant. It is in fact recognized as a technical term among political scientists. See, e.g., James Morrow, Game Theory for Political Scientists, 93 (1994).
133. Schelling, "Nuclear Strategy in Europe," supra note 106, at 423.
134. Byers, supra note 1, at 541.
135. North Sea Continental Shelf Cases (Fed. Rep. of Germany v. Denmark and Fed. Rep. of Germany v. Netherlands), [1969] I.C.J. Rep. 3, at 77.
136. Ibid., at 73.
137. See also Award on the Merits in the Dispute between Texaco Overseas Petroleum Company/California Asiatic Oil Company and the Government of Liberia, 17 I.L.M. 1, 29 (1978).
138. White House Office of the Spokesman, "Proliferation Security Initiative - Paris Meeting of Core Participants, September 3-4, 2003," supra note 63
139. and Byers, supra note 1, at 528-29.
140. Byers, supra note 1, at 544.
141. "U.S., Marshall Islands, Sign Pact to Search Each Other's Ships," supra note 65.
142. Restatement (Third), supra note 15, §102, comment b ("Inaction may constitute state practice, as when a state acquiesces in acts of another state that affect its legal rights")
143. and Robert Rosenstock and Margo Kaplan, "The Fifty-Third Session of the International Law Commission," 96 Am. J. Int'l L. 412, 418-19 (2002).
144. See also McNair, Law Of Treaties 485-89 (1961);
145. G. Schwartzenberger, International Law 535 (1957, 3rd ed.);
146. D. Bowett, "Estoppel before International Tribunals," 33 Brit. Y.B. Int'l L. 197 (1957);
147. and I.C. MacGibbon, "Estoppel in International Law," 7 Int'l and Comp. L.Q. 468 (1958).
148. Case Concerning Right of Passage Over Indian Territory (Portugal. v. India), [1960] I.C.J. Rep. 6.
149. See also Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), [1962] I.C.J. Rep. 6, at 46.
150. Interdictions, no matter how few days brief, will immensely impact economic interests; just-in-time shipping, in which minutely scheduled arrivals are of the essence, catalyzed economic globalization in the 1990s.
151. Restatement (Third), supra note 15, §102, Reporter's Note 2, quoting Myres McDougal, "The Hydrogen Bomb Tests and the International Law of the Sea," 49 Am.J. Int'l L. 357, 358 (1955).
152. For those sources most cited as giving rise to a precautionary principle under customary international law, see, inter alia, Stockholm Declaration, Principles 7, 21, and 22, 11 I.L.M. 1416 (1972);
153. Rio Declaration, Principles 2, 15, 16, 19, 31 I.L.M. 874 (1992);
154. Trail Smelter Case, III R.I.A.A. at 1911;
155. Lac Lanoux Arbitration (France. v. Spain), 24 I.L.R. 101 (1957);
156. Gut Dam, Settlement of Claims (U.S. v. Canada), 8 I.L.M. 118;
157. Balmer Schafroth v. Switzerland, dissent in 25 Eur. H.R. Rep. 598 (Eur Ct. H.R. 1997);
158. Montreal Rules of International Law Applicable to Transfrontier Pollution, Resolution No. 2/1982 on Legal Aspects of the Conservation of the Environment, Art. 3(1), International Law Association, Report on the 60th Conference; Island of Las Palmas Arbitral Award (1928) (U.S. v. Netherlands), R.I.A.A. 829;
159. Bamako Convention, Art. 3(2)(f), 30 I.L.M. 773 (1991);
160. and The Queen v. Ministry of Agriculture, Fisheries and Food, 1998 E.C.R. I-2211.
161. Regarding scholarly discussion see, e.g., Christopher Stone, "Is There a Precautionary Principle?," 31 Envt'l L. Rprtr. 10790 (2001);
162. Maki Takana, "Lessons from the Mox Plant Dispute: A Proposed Protocol on the Marine Environmental Impact Assessment to the United Nations Convention on the Law of the Sea," 25 Mich. J. Int'l L. 337, 338 (2004);
163. John Van Dyke, "Applying the Precautionary Principle to Ocean Shipments of Radioactive Waste," 26 Ocean & Dev. and Int'l L. 379, 384 (1996);
164. David Freestone, "The Precautionary Principle" in International Law and Global Climate Change, 21, 31 (Robin Churchill and David Freestone, eds., 1991);
165. and Oscar Schachter, Sharing the World's Resources, 71-73 (1977).
166. See John Van Dyke, supra note 119.
167. See The Southern Bluefin Tuna Cases (New Zealand v. Japan, Australia v. Japan), 27 August 1999, case nos. 3 and 4, before the International Tribunal for the Law of the Sea, available at www.itlos.org/ start2_en.html.
168. See The MOX Plant Case (Ireland v. U.K.), 13 November 2001, case no. 10, before the International Tribunal for the Law of the Sea, available at www.itlos.org/start2_en.html.
169. United States - Importation of Certain Shrimp and Shrimp Products, World Trade Organization, Report of the Appellate Body, AB-1998-4 (1998), 38 I.L.M. 121 (1999).
170. Convention on the Physical Protection of Nuclear Materials, 18 I.L.M. 1419 (1979). See "Weapons of Mass Destruction and the Proliferation Dilemma: Interview with Dr. Mohammed ElBaradei," December 2, 2003, 28 Fletcher F. World Aff. 29 (2003): "[I]f you really want to deal adequately with proliferation, you really need to start with the root causes and not just at the late stage when the countries are already engaged in commerce."
171. Van Dyke, supra note 119, at 383.