Home | Databases | WorldLII | Search | Feedback Maritime Studies

Gordon, Marcel --- "Dangerous Goods: The Legal Ramifications of Recent Responses to Terrorism on the High Seas" [2006] MarStudies 24; (2006) 150 Maritime Studies 1

• Dangerous Goods:The Legal Ramifications of Recent Responses to Terrorism on the High Seas
• Maritime terrorism
• The Law of the Sea Convention and the high seas
• The Protocols of 2005 to SUA
• The Proliferation Security Initiative
• Legitimate interdictions
• Redefining customary law
• Necessity
• Pre-emptive self-defence
• International or regional authorisation
• A modern understanding of the high seas
• Conclusion
• BIBLIOGRAPHY
• TREATIES
• ENDNOTES

Dangerous Goods:The Legal Ramifications of Recent Responses to Terrorism on the High Seas

Marcel Gordon^[1]

Maritime terrorism has become an increasingly important topic in both academic and political discourse over the last decade. The importance of international shipping to world trade makes it an attractive target for terrorists seeking to disrupt the global economy. A number of incidents around the world have highlighted the vulnerability of both ships and maritime installations to terrorist attacks. Recent initiatives aimed at protecting international shipping and preventing maritime proliferation of weapons of mass destruction (WMD) bring into sharp focus the tensions between the traditional maritime freedoms of the high seas and the development of effective responses to maritime terrorism.

This paper considers recent protocols to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation^[2] (SUA) and the US-led Proliferation Security Initiative (PSI). The SUA protocols are an orthodox response to terrorism, enforced through established legal avenues. The PSI, on the other hand, is novel. It raises the controversial possibility of interdictions on the high seas in conflict with the doctrines of sovereign immunity and flag state jurisdiction. These doctrines, developed over centuries in customary international law and codified in the 1982 United Nations Convention on the Law of the Sea^[3] (LOSC), pose serious challenges to maritime counter-terrorism operations. This paper examines the legality of interdictions on the high seas and the justifications upon which the PSI might rely, including the doctrines of necessity and pre-emptive self-defence. As no existing legal rights can sustain high seas interdictions, recourse to the UN Security Council and amendments to LOSC are recommended as the most politically and legally acceptable approaches.

Maritime terrorism

In 1985 an Italian cruise ship, the Achille Lauro, was hijacked by a group of Palestinian terrorists in Egyptian waters, drawing attention to the threat of maritime terrorism. The international community responded with SUA.^[4] While SUA was clearly negotiated with the prevention of terrorism in mind, it has much wider application, addressing unlawful acts which compromise the safety of navigation, whether terrorist or not.^[5] The International Maritime Organization (IMO), under whose auspices the convention was negotiated, indicates that by mid-2006 SUA had 135 contracting states accounting for nearly 90 per cent of tonnage transported by sea.^[6]

Yet in spite of SUA a diverse range of terrorist groups have resorted to maritime terror since the Achille Lauro incident.^[7]

Incidents of maritime terrorism vary in scale, notoriety and consequence. This paper focuses on two types of incidents: direct attacks on maritime assets (ships, offshore installations and port facilities); and the transportation of weapons of mass destruction and related cargo. Examples of the former include the attack on the USS Cole in 2000 in Yemen,^[8] the attack on the French oil tanker M/V Limburg in 2002 off the coast of Yemen^[9] and the attack on the Bakr and Khawr al-Amaya oil terminals close to Iraq in 2004.^[10] Although the transportation of WMD, an inherently covert activity, attracts less publicity, the So San incident conveniently illustrates the difficulties involved. On 9 December 2002, a Spanish naval vessel involved in Operation Enduring Freedom, a NATO operation aimed at intercepting contraband cargo and al-Qa’eda fugitives fleeing Afghanistan, interdicted the So San, a North Korean crewed ship destined for Yemen. The interdiction was based on specific US intelligence.^[11] Undeclared among its cargo were 15 Scud missiles and 85 drums of chemicals. After inspections by US specialists, the Yemeni government assured the US that it had purchased the missiles legally for its own defence and the ship and its cargo were released.^[12]

These two types of incidents represent distinct activities. The first aims to cause terror in the maritime environment. The dividends for terrorists include loss of life, economic loss, increased insurance costs and disruption of trade. The M/V Limburg incident, for example, resulted in a vast increase in insurance rates for ships visiting Yemen,^[13] and both the Limburg and Iraqi oil terminal incidents caused a brief spike in oil prices.^[14] The second merely uses shipping as a means for the proliferation of WMD, and as such might not strictly be called maritime terrorism. The main concern is the potential for shipping to be used as a means of supply for terrestrial terrorist activities,^[15]

and as such it might be better described as a maritime activity related to terrorism. However, it is distinct from other supply activities, such as transporting regular weapons or persons, because states have evinced a willingness to respond through the interdiction of vessels.^[16]

That is, states themselves have highlighted the transport of WMD as an activity of special concern which requires a maritime response. That makes it relevant to a discussion of maritime terrorism.

The Law of the Sea Convention and the high seas

The high seas are defined by Article 86 of LOSC by exclusion: the high seas are what remain of the oceans once all other zones are removed. At its core, the public law of the sea has always been concerned with the balance of rights between coastal states and shipping nations. In its most comprehensive codification in LOSC, a complex balance is struck through the use of zones, of which the high seas impose the least constraints on maritime activity. In fact, coastal states have no special jurisdiction on the high seas – all rights to interfere with the shipping of other nations belong equally to all nations. This makes the high seas a difficult place to enforce law, and an interesting place in which to examine the ramifications of maritime terrorism.

Two longstanding doctrines, sovereign immunity and flag state jurisdiction, pose challenges to maritime counter-terrorism efforts on the high seas. The basic tenet of the high seas is freedom. All nations equally enjoy free use of the high seas.^[17] Rights of visit over ships flying the flag of another state are strictly curtailed^[18] and ships on the high seas are subject to the exclusive jurisdiction of their flag state.^[19] Non-commercial ships which are owned and operated by a state are immune from the jurisdiction of any other state.^[20] These doctrines, which preclude counter-terrorism operations by one state directed at the ships of another state, have prompted two distinct international responses.

The Protocols of 2005 to SUA

The Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation^[21] and its counterpart relating to fixed platforms^[22] (2005 Protocols) were negotiated over three years with the assistance of the International Maritime Organisation (IMO).^[23]

They extend SUA (and its accompanying protocols)^[24] to cover three broad categories of action: terrorism against, on or using ships or fixed platforms; the transport of WMD – namely biological, chemical and nuclear weapons – and related materials; and the transport of explosive or radioactive materials to be used in the coercion of a government or intimidation of a population.^[25] SUA requires state parties to enact legislation making these actions punishable by appropriate penalties,^[26] and to establish jurisdiction and enforce such provisions where possible.^[27] It also includes obligations of extradition and assistance in prosecution.^[28] Consequently, once the 2005 Protocols enter into force, activities related to maritime terrorism will become crimes in signatory states.

The 2005 Protocols represent a conventional utilisation of international law. Through negotiation, a number of states have come to a consensus on the approach to be taken. The focus of the 2005 Protocols is ensuring that the given behaviours are prosecutable as crimes in as many municipal legal systems as possible. They impose very few – and relatively loose – obligations upon member states. The only concessions made by states are agreements to enact certain laws and follow the required procedure in enforcing them. Although SUA applies to ships navigating outside the territorial sea of a single state^[29] – an area which clearly includes the high seas – it explicitly defers to existing international rights and obligations.^[30]

The 2005 Protocols are designed to ensure that individuals who engage in acts of maritime terrorism can be prosecuted, not to empower states or the international community in acting against terrorism. As a result, they fit comfortably within rather than seeking to alter existing international law. Neither the 2005 Protocols nor SUA impinge upon or require the sacrifice of general rights such as flag state sovereignty or sovereign immunity. SUA explicitly excludes warships and government-owned ships, recognising the sovereign immunity which attaches to them.^[31] It clearly respects flag state sovereignty as well, only allowing interdictions with the consent of the flag state.^[32] Most significantly, SUA has no effect upon states which are not parties to it, preserving the presumption of freedom of the high seas.

This orthodox approach has the advantage of being uncontentious and clearly acceptable under international law, but its respect for existing doctrines reduces its efficacy. Inevitably, maritime terrorism will involve states which are not parties or actors from such states. Sometimes circumstances will necessitate action before a flag state’s consent can be obtained or where a flag state may not, for whatever political or nationalistic reason, be willing to give its consent. Even amongst its signatories, SUA only criminalises the behaviours; it explicitly abdicates from enhancing investigative or enforcement powers.^[33] For these reasons, the 2005 Protocols fall short of being a comprehensive solution. Realistically, they do little more than codify existing law and provide a framework for action in already uncontentious circumstances. The PSI, by contrast, attempts to go further.

The Proliferation Security Initiative

The PSI is a US initiative ‘that aims to stop trafficking of weapons of mass destruction (WMD), their delivery systems, and related materials to and from states and non-state actors of proliferation concern worldwide’.^[34]

‘Core participants’ include Australia, Canada, France, Germany, Italy, Japan, the Netherlands, Norway, Poland, Portugal, Russia, Singapore, Spain, the UK and the US, and over 60 countries are said to support the initiative.^[35] The PSI is framed as an activity rather than a treaty or organisation – ‘an action-oriented group’.^[36] As well as operational capacity, built through training exercises, the initiative promotes information sharing and the strengthening of national and international legal frameworks to address the proliferation of WMD.^[37]

The PSI has been credited with playing a role in Libya’s renouncement of its weapons program following the interception of a shipment of centrifuge components on a German vessel based on American and British intelligence.^[38]

In that case, the operation was entirely uncontroversial from a legal perspective – German authorities directed the owner of the ship to have it call at an Italian port, where the cargo was seized.^[39]

While concerns have been raised regarding the lack of clarity in delineating the kinds of cargo and the parties which are being targeted,^[40] all of the operations which have been made public have been similarly uncontroversial from the point of view of the Law of the Sea.^[41]

Legitimate interdictions

One of the main aims of the PSI is to facilitate cooperation amongst the states involved. The Libyan incident shows that the PSI contemplates cooperative action where the ship in question is subject to the jurisdiction of one of its members. It is not clear whether agreements have been made to formalise the cooperation or grant rights to specific parties to interdict on agreed grounds, or whether the arrangements are merely political. Indeed, efforts to negotiate a model boarding agreement between PSI participants failed.^[42] Whatever the case may be, it is clear that cooperative efforts can be successfully undertaken by PSI members. In addition, as evidenced by the So San incident, an interdiction will also be legitimate where a ship is stateless – that is, where the ship is not flying the flag of any state.^[43]

However, it is unlikely that a ship transporting WMD or related materials will make the same mistake as the So San and thereby justify interdiction.

Further, in order to facilitate interdictions on ships whose flag states are not involved in the PSI, the US has entered into a number of treaties with states with open ship registries establishing expedited boarding arrangements. These include Liberia, Panama and the Marshall Islands.^[44] Entry into these agreements suggests that the US recognises the controversial nature of the PSI, preferring to pre-establish consent rather than relying on existing law, ad hoc arm-wringing or right by might. Recourse to such agreements does not necessarily constitute an acknowledgement by the US that interdictions would otherwise be illegal; such agreements simply put the legality of interdictions within their ambit beyond doubt, avoiding controversy.

Although the PSI’s Statement of Interdiction Principles stresses the need for action to be ‘consistent with national legal authorities and relevant international law and frameworks’,^[45] the initiative’s goals raise the possibility of infringement upon traditional freedoms of the high seas.^[46] From a practical perspective, if the PSI is to have any effect beyond that of the 2005 Protocols it must challenge existing law in some way. It appears that member states consider the PSI to be more than an administrative arrangement aimed at implementing the 2005 Protocols. The US has expressed a willingness to engage in ‘proactive counterproliferation efforts’^[47] and has described the PSI as being ‘focused on problem-solving and action’.^[48] As a result, states not involved in the PSI have expressed doubts as to the legality of possible operations under the PSI.^[49]

In order to determine when the states involved in the PSI may interdict ships beyond mutual cooperation or pre-existing treaty rights, it is necessary to look to more general principles of international law.

Redefining customary law

It is possible, particularly with the support of so many powerful states, that PSI participants could try to establish a rule of customary law allowing interdictions on the high seas. It is arguable that there is no customary law covering interdictions to prevent the proliferation of WMD. That is, even given the clear customary law preventing interdictions in general on the high seas, PSI members could argue that their interdictions are not prohibited, but rather unprecedented. They would clearly be arguing against the weight of the law as it stands, especially in light of LOSC.^[50] Obviously, this is a controversial argument, and any interdiction is likely to be protested by other nations. More importantly, it may not be a precedent which PSI members wish to establish, as other nations could begin interdictions purportedly based on the same right. In essence, this kind of claim seeks to trade the illegality of interdictions for lawlessness, a bargain which may not be wise.

Necessity

Kaye suggests that the doctrine of necessity, as enunciated by the International Court of Justice (ICJ) in the Gabčikovo-Nagymaros Project Case^[51] and the International Law Commission (ILC) in its Draft Articles on Responsibility of States for Internationally Wrongful Acts,^[52] could justify interdiction of vessels.^[53] The only circumstances in which necessity could be relevant are where a non-PSI state which is not a party to a relevant non-proliferation treaty ships WMD to either a third state, or where such a state ships WMD to a non-state actor. The state would have to do so knowingly, in defiance of PSI requests to allow a visit and search. If the WMD were not shipped knowingly, the state would have little reason not to address the situation, whether through its own measures or by acceding to PSI requests.

Where the cargo is destined for a third state, it is difficult to allege that the relevant ‘grave and imminent peril’ exists.^[54] The International Law Commission (ILC) has indicated that the situation should involve ‘extreme peril’^[55] and be ‘absolutely exceptional’;^[56] the International Court of Justice has stressed that ‘the mere apprehension of a possible “peril” could not suffice in that respect’.^[57] Unless the shipping or receiving state has threatened the use of WMD or is at war, it is difficult to envisage a situation where the danger is sufficiently immediate and grave. In the case of war, naval law clearly allows the interception and seizure of arms.^[58] In the case of a specific and credible threat, the UN Security Council, with its mandate to preserve international peace and security,^[59] would properly authorise preventative action. Clearly, if the Security Council is unable to act, there may indeed be a situation of necessity. However, such a situation would, in accordance with the ILC’s definition of necessity, be absolutely exceptional.

Where the cargo is destined for a non-state actor, the same substantive arguments apply. In this case, there are even more alternatives to unilateral interdiction. Even where the state of origin controls the ship – whether commercial or government – the destination state may be willing to cooperate. This is clearly true where the WMD are destined for maritime use, as the use will likely be within the destination state, but also where the WMD are destined for transfer onto land. Where the destination state will not cooperate, allowing an inspection when the ship reaches port, it can fairly be accused of harbouring and indeed aiding terrorists, which may itself allow action to be taken against the state.^[60] If not sufficient to justify unilateral action, it ought to be of sufficient concern to prompt Security Council intervention, a preferable alternative to unilateral interdiction on the high seas.

Even allowing for different interpretations upon the imminence, gravity and peril inherent in the shipping of WMD, and the potential for very particular circumstances to satisfy those criteria, it is clear that PSI members have alternatives to unilateral interdiction. As well as seeking cooperation from the destination state – which would have every reason to cooperate – the UN Security Council’s raison d’être is to deal with situations of this kind. Unilateral action undermines international law in general, and the balance established in the public law of the sea in particular. The danger to orderly maritime activity and the critical shipping trade posed by reprisals is enormous.

Pre-emptive self-defence

Acting within existing law, anticipatory or pre-emptive self-defence is often cited as a possible basis for interdiction,^[61] including by the United States.^[62] Self-defence is one of the few situations in which the use of force is legal under modern international law.^[63] Advocates of pre-emptive self-defence argue that every state has the right to act to prevent or minimise the damage from an imminent act of aggression as part of its right to self-defence.^[64] The doctrine is controversial due to its potential for abuse and conflict with principles of the Charter of the United Nations.^[65] Assuming its existence, pre-emptive self-defence – like all self-defence – must be necessary, proportionate and based upon an immediate threat.^[66] A discussion of necessity and immediacy in the context of the doctrine of necessity has been undertaken above, and the same conclusion – that circumstances meeting the criteria will be highly exceptional – applies to pre-emptive self-defence.

Moreover, even those who advocate a right to pre-emptive self-defence have recognised that it ought to be subject to other restrictions, such as the state against which action is being taken being in breach of international law and multilateral or UN-based efforts having failed.^[67] The transportation of WMD is not a breach of international law unless states have subscribed to particular non-proliferation treaties. A state determined to proliferate is not likely to have done so. Even where states have subscribed, non-proliferation treaties may in fact legitimise the transfer of certain materials. In these circumstances, asserting a right of self-defence is little more than vigilantism.

International or regional authorisation

One of the most famous maritime confrontations in history points to an alternative basis for legitimacy for the PSI. In the Cuban missile crisis, the US did not act unilaterally. Rather, in light of the crippled Security Council, it sought authorisation from the Organisation of American States (OAS). This was forthcoming, and the subsequent blockade was justified based on the OAS’s acquiescence. That is, the US acted to protect its security with the support of a regional authority. If the Security Council is unable to deal with a situation effectively, PSI members could seek authorisation from a regional body.^[68] While it is far from clear that such authorisation is sufficient to justify an interdiction, it appears more legitimate than a unilateral interdiction. This is because the action is no longer unilateral to the same degree. Legitimacy in international law is tied to consensus, and consensus plays a key role in the modern governance of the high seas.

A modern understanding of the high seas

In the PSI’s defence, the slavery provisions found in LOSC originally arose following concerted British action against slave trading ships in spite of the legality of the slave trade at the time.^[69] The PSI could be defended as moralistic law-breaking, ahead of its time.^[70] However, while the PSI might be seen as a catalyst in the same kind of way, the mechanisms and institutions of international law are far more established and effective than they were in the 19th century. In addition, it is difficult to find a strong moral imperative in the PSI. Even if WMD are objectionable, they are widely held; yet the PSI is only addressed towards ‘states of proliferation concern’.^[71] Moreover, most states which have remained outside the PSI do not seem to be against the initiative’s objects in principle.^[72] They simply desire that the limits of a right of interdiction be clearly defined through multilateral cooperation.^[73]

Given the international recognition of the problem and the mature institutions available through which to address it, renegade interdictions are hard to defend.

Whereas the high seas were originally conceived as an area beyond the jurisdiction of any nation, the contemporary reality is that they are under the joint jurisdiction of the international community. To represent the high seas as lawless or beyond regulation, requiring vigilante action in the interest of all states, is to ignore the reality of modern maritime governance. One does not have to look far for evidence of this. LOSC contains provisions which, when based on piracy, suspicions of slave trading and illegal broadcasting, allow interdiction by any nation.^[74] Development of the deep sea bed is under the control of an international organisation.^[75] Indeed, the freedom of the high seas is curtailed by the requirement of ‘due regard for the interests of other States’.^[76]

In terms of governance, the UN Security Council is certainly capable of authorising interdictions on a case by case basis. However, Security Council resolutions tend to be conservative in their terms because of the veto power exercised by the council’s permanent members: China, France, Russia, the United Kingdom and the United States.^[77] Resolution 1695, addressing North Korea’s ballistic missile testing and development,^[78] provides a pertinent example. The final resolution, while prohibiting the transfer of ‘missile and missile-related items, materials, goods and technology’ to and from North Korea, was not as strong in its terms as the US had desired due to the need to satisfy China and Russia, both of whom have closer relationships with North Korea.^[79]

Most significantly, the resolution does not make clear what measures may be taken in order to secure compliance. Without an established rule of general application, every controversy is subject to political interests and risks leaving the Security Council without a satisfactory result.

However, a general Security Council resolution authorising interdictions would give far too much latitude to states invoking it. China in fact rejected the inclusion of such a provision in Resolution 1540 of the Security Council.^[80] Such a resolution would itself be potentially more destabilising than a lack of law as it would lend legitimacy to overreaching states. An amendment to LOSC, on the other hand, could be relatively specific regarding the circumstances in which interdiction could take place and the processes to be followed, protecting various interests. As action would then be taken on a legal basis, controversial interdictions could be challenged in the ICJ or ITLOS,^[81] further enhancing the predictability of the law. The PSI, on the other hand, can only be responded to on a political level, which is why it has been contested so strongly.

Usefully, this adjustment does not suffer from the traditional coastal/shipping state tensions. Given the momentum of the movement against maritime proliferation evidenced by the PSI, it is in the interests of all parties that the law of the sea is clarified in order to effectively address the problem. As the basis for an amendment to LOSC, the PSI’s Statement of Interdiction Principles represents a reasonable approach.^[82] The terms of the statement would need to be adapted in order to make clear what – in terms both of parties and materials – makes a transfer subject to interdiction, but it maintains flag state sovereignty whilst providing a framework for escalation in difficult cases. It has been suggested that the designation of ‘states of proliferation concern’ and relevant materials might be placed in the hands of an international institution;^[83] that kind of detail would be the subject of the inevitably long negotiations preceding any amendment to LOSC. While universal consensus may not be possible, and not all states may become parties, once the will of the greater part of the international community has been manifested in this way, it will be difficult for dissenters to resist. Difficult and time-consuming as it may be, multilateralism is the best approach. Until then, authorisation for individual interdictions can be sought from the UN Security Council as the need arises.

Conclusion

While the 2005 Protocols are clearly a useful and necessary step in combating maritime terrorism, they do not address the difficult question of enforcement. The PSI, by contrast, confronts these issues head on, but in doing so it has caused controversy in the international community. The rule of law on the seas, centuries in the making, looks vulnerable as the initiative seemingly threatens such fundamental rules as flag state sovereignty and sovereign immunity. States not involved in the PSI have proven unwilling to support broad measures allowing interdictions, highlighting the value accorded to these doctrines. Customary law principles such as necessity and self-defence can only provide a justification for high seas interdictions carried out without flag state permission in the most exceptional circumstances. In every other case the PSI is simply unilateral vigilantism, and it is neither justifiable nor necessary in light of the other options available.

While the negotiations surrounding SUA, the limitations of Resolution 1540 and the lack of concordance even amongst PSI members all show that a multilateral approach will be difficult, it is still the preferred mode of addressing the threat of maritime terrorism. Important states such as China, while supporting the counter-proliferation goals of the PSI, have been reluctant to support broad instruments permitting interdictions. Substantial negotiations are required to establish consensus at the necessary level of detail. Multilateral measures, such as amendments to LOSC, could be effective in addressing the problem of maritime terrorism by articulating legal limits on interdictions and manifesting global accord. In the meantime, Security Council or at least regional authorisation should be a prerequisite to interdictions on the high seas. It would truly be a tragedy if present efforts to address the risks of maritime terrorism resulted in the breakdown of order on the high seas.

BIBLIOGRAPHY

Note: In the footnotes, after the initial references to treaties each subsequent reference is abbreviated for the sake of brevity. For ease of reference all treaties referred to in the text are listed at the end of this section, with their abbreviations.

[Australian] Department of Foreign Affairs and Trade Proliferation Security Initiative, (undated), <http://www.dfat.gov.au/globalissues/psi/> viewed 7 May 2006.

[Australian] Department of Foreign Affairs and Trade Proliferation Security Initiative: Statement of Interdiction Principles, (undated), <http://www.dfat. gov.au/globalissues/psi/psi_statement.html> viewed 7 May 2006.

Barry, I, ‘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’, Hofstra Law Review, vol. 33, 2004, p. 299.

Bateman, S, ‘Maritime “Regime” Building’ in J Ho & CZ Raymond (eds), The Best of Times, The Worst of Times: Maritime Security in the Asia-Pacific, 2005, p. 259.

Becker, M, ‘Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea’, Harvard Journal of International Law, vol. 46, 2006, p. 131.

Boed, R, ‘State of Necessity as a Justification for Internationally Wrongful Conduct’ (2000) Yale Human Rights and Development Law Journal, vol. 3, no. 1, p. 1.

Bureau of Nonproliferation, The Proliferation Security Initiative 1, 2005, <http://usinfo.state.gov/is/img/ assets/4756/brochure1.pdf> viewed 7 May 2006.

Byers, M, ‘Policing the High Seas: The Proliferation Security Initiative’, American Journal of International Law, vol. 98, 2004, p. 526.

Crawford, J, Peel, J & Olleson, S, ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading’, European Journal of International Law, vol. 12, no. 5, 2001, p. 963.

Doolin, J, ‘The Proliferation Security Initiative: Cornerstone of a New International Norm’, Naval War College Review, vol. 59, no. 2, 2006, p. 29.

Duffy, H, The ‘War on Terror’ and the Framework of International Law, 2005.

Editorial, ‘The New Multilateralism’, The Wall Street Journal, 8 January 2004, p. A22.

Gahlaut, S, ‘Political Implications of the Proliferation Security Initiative’ in Ho & Raymond (eds), op. cit., p. 229.

Guilfoyle, D, ‘The Proliferation Security Initiative: Interdicting Vessels in International Waters in Order to Prevent the Spread of Weapons of Mass Destruction?’, Melbourne University Law Review, vol. 29, 2005, p. 733.

Hawkings, W, ‘Trumping China’s U.N. card’ The Washington Times <http://www.washtimes.com/ commentary/20060725-092559-4163r.htm> viewed 1 August 2006.

Herbert-Burns, R, ‘Terrorism in the Early 21st Century Maritime Domain’ in Ho, J, & Raymond, CZ, (eds), The Best of Times, The Worst of Times: Maritime Security in the Asia-Pacific, 2005, p. 155.

Ho, J, & Raymond, CZ, (eds), The Best of Times, The Worst of Times: Maritime Security in the Asia-Pacific, World Scientific: Institute of Defence and Strategic Studies, Singapore, c. 2005, 294 pp.

Information Office of the State Council of the People’s Republic of China, China’s Non-Proliferation Policy and Measures (2003) <http://www.china.org.cn/e-white/20031202/index.htm> viewed 10 May 2006.

Jennings, RY, ‘The Caroline and McLeod Cases’ American Journal of International Law, vol. 32, 1938, p. 82.

Joyner, D, ‘The Proliferation Security Initiative: Nonproliferation, Counterproliferation, and International Law’, Yale Journal of International Law, vol. 30, 2005, p. 507.

Kaye, S, ‘The Proliferation Security Initiative in the Maritime Domain’, Israel Yearbook on Human Rights, vol. 35, 2005, p. 205.

Kraska, J, ‘Averting Nuclear Terrorism: Building a Global Regime of Cooperative Threat Reduction’, American University International Law Review, vol. 20, 2005, p. 703.

Leary, D & Chakraborty, A, ‘New Horizons in the Law of the Sea’, Victoria University Wellington Law Review, vol. 36, 2005, p. 657.

Ministry of Foreign Affairs of the People’s Republic of China, Foreign Ministry Spokesperson’s Press Conference on September 4, 2003 <http://www.fmprc.gov.cn/eng/xwfw/2510/2511/t25626.htm> viewed 7 May 2006.

National Security Council, The National Security Strategy of the United States of America, 2006 p. 19 <http://www.whitehouse.gov/nsc/nss/2006/> viewed 7 May 2006.

Office of the Press Secretary, The White House, The President’s National Security Strategy to Combat WMD: Libya’s Announcement, 2003, <http://www. state.gov/p/nea/rls/27462.htm> viewed 7 May 2006.

Office of the Press Secretary, The White House Proliferation Security Initiative: Statement of Interdiction Principles, 2003, <http://www.state.gov/ t/isn/rls/fs/23764.htm viewed 7 May 2006.

‘Proliferation Security Initiative: Libyan Case Crowns First Year’s Achievements’, NIS Export Control Observer, vol. 25, January 2003/ December 2004, (available at <http://cns.miis.edu/pubs/nisexcon/pdfs/ ob_0401e.pdf viewed 7 May 2006).

Quinn, T, ‘Terror Australis – How Maritime Terror Affects Australia’, Queensland University of Technology Law Journal, vol. 15, 1999, p. 155.

Raymond, CZ, ‘Maritime Terrorism, A Risk Assessment: The Australian Example’ in Ho & Raymond (eds), op. cit., p. 179.

Richardson, M, A Time Bomb for Global Trade: Maritime-related Terrorism in an Age of Weapons of Mass Destruction, 2004.

Sheridan, G, ‘US “Free” to Tackle N. Korea’, The Australian, 9 July 2003, p.1.

Status of Conventions – Summary (2006) International Maritime Organization <http://www.imo.org/ Conventions/mainframe.asp?topic_id=247> viewed 7 May 2006.

Treves, T, ‘The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation’, Singapore Journal of International and Comparative Law, vol. 2, 1998. p. 541.

Valencia, MJ, ‘The Proliferation Security Initiative: Making Waves in Asia’, Adelphi Papers, 2005, p. 376.

Van Den Hole, L, ‘Anticipatory Self-Defence Under International Law’, American University International Law Review, vol. 19, 2003, p. 69.

Williams, P, ‘Preemption In The 21st Century: What Are The Legal Parameters?’, ILSA Journal of International and Comparative Law, vol. 10, 2004, p. 353.

Yearbook of the ILC, vol. II (Part Two), 1980.

TREATIES

Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, opened for signature 10 March 1988, [1993] ATS 10 (entered into force 1 March 1992) (referred to in the footnotes as ‘SUA’).

Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, opened for signature 10 March 1988, [1993] ATS 11 (entered into force 1 March 1992).

Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, opened for signature 14 February 2006 (not yet in force) (referred to in the footnotes as ‘2005 SUA Protocol’).

Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, opened for signature 14 February 2006 (not yet in force) (referred to in the footnotes as ‘2005 Platform Protocol’).

United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3, arts 87-90, 92, 95-6 (entered into force 16 November 1994).

ENDNOTES

^[1] Marcel Gordon is a recent Computer Science and Law graduate from the University of Wollongong, who is now working with the law firm Blake Dawson Waldron in Sydney. He expresses sincere thanks to Dr Warwick Gullet for his enthusiasm and encouragement in preparing this paper.

^[2] Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, opened for signature 10 March 1988, [1993] ATS 10 (entered into force 1 March 1992) (hereafter ‘SUA’).

^[3] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3, arts 87-90, 92, 95-6 (entered into force 16 November 1994). (Hereafter UNCLOS.)

^[4] D Leary & A Chakraborty, ‘New Horizons in the Law of the Sea’, Victoria University Wellington Law Review, vol. 36, 2005, p. 677; T Treves, ‘The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation’, Singapore Journal of International and Comparative Law, vol. 2, 1998, pp. 543-4.

^[5] Treves, loc. cit.

^[6] Status of Conventions – Summary (2006) International Maritime Organization <http://www.imo.org/ Conventions/mainframe.asp?topic_id=247 viewed 7 May 2006; cf. CZ Raymond, ‘Maritime Terrorism, A Risk Assessment: The Australian Example’ in J Ho & CZ Raymond (eds), The Best of Times, The Worst of Times: Maritime Security in the Asia-Pacific, 2005, p. 182 (‘only 34 states are party to the convention’); T Quinn, ‘Terror Australis – How Maritime Terror Affects Australia’, Queensland University of Technology Law Journal, vol. 15, 1999, p. 163 (‘As of 1 May, 1999, 39 countries have accepted the Convention’).

^[7] R Herbert-Burns, ‘Terrorism in the Early 21st Century Maritime Domain’ in Ho & Raymond (eds), op. cit., pp. 157-8.

^[8] M Richardson, A Time Bomb for Global Trade: Maritime-related Terrorism in an Age of Weapons of Mass Destruction, 2004, p. 18.

^[9] Herbert-Burns, op. cit., pp. 164-5.

^[10] Herbert-Burns, op. cit., pp. 155-6.

^[11] J Doolin, ‘The Proliferation Security Initiative: Cornerstone of a New International Norm’, Naval War College Review, vol. 59, no. 2, 2006, pp. 29-30.

^[12] D Guilfoyle, ‘The Proliferation Security Initiative: Interdicting Vessels in International Waters in Order to Prevent the Spread of Weapons of Mass Destruction?’ Melbourne University Law Review, vol. 29, 2005, pp. 735-6; D Joyner, ‘The Proliferation Security Initiative: Nonproliferation, Counterproliferation, and International Law’, Yale Journal of International Law, vol. 30, 2005, pp. 508-509.

^[13] Raymond, op. cit., p. 206; Herbert-Burns, op. cit., p. 165.

^[14] Herbert-Burns, loc. cit.

^[15] See, e.g., Australian Department of Foreign Affairs and Trade, Proliferation Security Initiative (undated), <http://www.dfat.gov.au/globalissues/psi/ viewed 7 May 2006.

^[16] See below [in text], ‘The Proliferation Security Initiative‘.

^[17] UNCLOS, arts 87-90.

^[18] ibid., art 110.

^[19] ibid., art 92; The Lotus Case (France v Turkey) [1927] PCIJ (ser A) No 9.

^[20] UNCLOS, arts 95-6.

^[21] Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, opened for signature 14 February 2006 (not yet in force) (hereafter ‘2005 SUA Protocol’).

^[22] Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, opened for signature 14 February 2006 (not yet in force) (hereafter ‘2005 Platform Protocol’).

^[23] Protocols to the United Nations Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) (2005) US Department

of State <http://www.state.gov/t/isn/rls/fs/58322.htm viewed 7 May 2006.

^[24] Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, opened for signature 10 March 1988, [1993] ATS 11 (entered into force 1 March 1992).

^[25] 2005 SUA Protocol, op. cit., art 4(5); 2005 Platform Protocol, op. cit., art 4(1).

^[26] SUA, op. cit., art 5.

^[27] SUA, op. cit., arts 6-7, 10.

^[28] SUA, op. cit., arts 11-12.

^[29] SUA, op. cit., art 4.

^[30] SUA, op. cit., art 2, 9; 2005 SUA Protocol, op. cit., art 3.

^[31] SUA, op. cit., art 2.

^[32] 2005 SUA Protocol, op. cit., art 8.

^[33] SUA, op. cit., art 9.

^[34] The Proliferation Security Initiative (2005) Bureau of Nonproliferation 1 <http://usinfo.state.gov/is/img/assets/ 4756/brochure1.pdf> viewed 7 May 2006.

^[35] Australian Department of Foreign Affairs and Trade, op. cit.

^[36] Editorial, ‘The New Multilateralism’, The Wall Street Journal, 8 January 2004, p. A22.

^[37] Office of the Press Secretary, The White House Proliferation Security Initiative: Statement of Interdiction Principles (2003) <http://www.state.gov/ t/isn/rls/fs/23764.htm viewed 7 May 2006; [Australian] Department of Foreign Affairs and Trade Proliferation Security Initiative: Statement of Interdiction Principles (undated) <http://www.dfat.gov.au/globalissues/psi/ psi_statement.html> viewed 7 May 2006.

^[38] Office of the Press Secretary, The White House, The President’s National Security Strategy to Combat WMD: Libya’s Announcement, 2003, <http://www.state.gov/p/ nea/rls/27462.htm> viewed 7 May 2006; National Security Council, The National Security Strategy of the United States of America, 2006, p. 19, <http://www. whitehouse.gov/nsc/nss/2006/> viewed 7 May 2006.

^[39] ‘Proliferation Security Initiative: Libyan Case Crowns First Year’s Achievements’, NIS Export Control Observer, January 2003/ December 2004, 25 (available at <http://cns.miis.edu/pubs/nisexcon/pdfs/ob_0401e. pdf> viewed 7 May 2006).

^[40] M Becker, ‘Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea’ Harvard Journal of International Law, vol. 46, 2006, pp. 159-62; S Gahlaut, ‘Political Implications of the Proliferation Security Initiative’ in Ho & Raymond (eds), op. cit., pp. 234-5; MJ Valencia, ‘The Proliferation Security Initiative: Making Waves in Asia’, 2005, Adelphi Papers 376, pp. 39-40.

^[41] Becker, op. cit., pp. 155-9.

^[42] ibid., p. 163.

^[43] UNCLOS, above n 2, art 110(1).

^[44] Gahlaut, op. cit., p. 233.

^[45] Proliferation Security Initiative: Statement of Interdiction Principles, (see note 36).

^[46] Gahlaut, op. cit., pp. 232-3.

^[47] National Security Council, op. cit., p. 18.

^[48] ibid., p. 40.

^[49] Most notably China – Ministry of Foreign Affairs of the People’s Republic of China, Foreign Ministry Spokesperson’s Press Conference on September 4, 2003 <http://www.fmprc.gov.cn/eng/xwfw/2510/2511/t25626.htm> viewed 7 May 2006; Becker, op. cit., pp.165-6.