C
The International Legal Framework

Chapter 2 briefly discussed the need for an international legal framework for maritime security partnerships (MSP). This appendix provides more details and the committee’s observations on such a framework.

THE STRUCTURE OF MARITIME GOVERNANCE: RESTRAINTS OR EMPOWERMENT?

A stark reminder of the crucial significance of the legal parameters applicable to MSP is provided by a United Nations report that notes, succinctly, “any measures taken to prevent terrorist acts against shipping, offshore installations and other maritime interests must be in conformity with international law, including UNCLOS.”1 Considering the importance that states in general ascribe to the United Nations Convention on the Law of the Sea (UNCLOS) as having a “universal and unified character” whose “integrity needs to be maintained,”2 it follows that activities affecting the oceans not only will have to pass muster in accordance with relevant substantive rules and standards of UNCLOS but also will need to comply with the general understanding among states of how UNCLOS should be adapted, if it becomes necessary. This understanding suggests a process that is

1

United Nations, Report of the Secretary-General on Oceans and the Law of the Sea, New York, A/62/66, Paragraph 81, March 12, 2007, p. 28. Thus, it is generally agreed that UNCLOS “sets out the legal framework within which all activities in the oceans and the seas must be carried out and is of strategic importance as the basis for national, regional and global action and cooperation in the marine sector…. ” United Nations, Oceans and the Law of the Sea, New York, Resolution No. A/RES/61/222, Preamble, March 16, 2007, p. 1.

2

See, for example, United Nations Resolution No. A/RES/61/222, Preamble, March 16, 2007.



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C The International Legal Framework Chapter 2 briefly discussed the need for an international legal framework for maritime security partnerships (MSP). This appendix provides more details and the committee’s observations on such a framework. THE STRuCTuRE OF MARITIME gOvERNANCE: RESTRAINTS OR EMPOWERMENT? A stark reminder of the crucial significance of the legal parameters appli- cable to MSP is provided by a United Nations report that notes, succinctly, “any measures taken to prevent terrorist acts against shipping, offshore installations and other maritime interests must be in conformity with international law, includ- ing UNCLOS.”1 Considering the importance that states in general ascribe to the United Nations Convention on the Law of the Sea (UNCLOS) as having a “uni- versal and unified character” whose “integrity needs to be maintained,”2 it follows that activities affecting the oceans not only will have to pass muster in accordance with relevant substantive rules and standards of UNCLOS but also will need to comply with the general understanding among states of how UNCLOS should be adapted, if it becomes necessary. This understanding suggests a process that is 1 United Nations, Report of the Secretary-General on Oceans and the Law of the Sea, New York, A/62/66, Paragraph 81, March 12, 2007, p. 28. Thus, it is generally agreed that UNCLOS “sets out the legal framework within which all activities in the oceans and the seas must be carried out and is of strategic importance as the basis for national, regional and global action and cooperation in the marine sector. . . . ” United Nations, Oceans and the Law of the Sea, New York, Resolution No. A/RES/61/222, Preamble, March 16, 2007, p. 1. 2 See, for example, United Nations Resolution No. A/RES/61/222, Preamble, March 16, 2007. 164

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165 aPPeNDIX C centered, first and foremost, on the states that are themselves parties to UNCLOS or, exceptionally, on an equally broad-based multilateral approach that is inclu- sive as well as transparent. UNCLOS itself does not comprehensively or even specifically address the matter of maritime security. Instead, it features a number of limited rules that speak directly to issues of maritime security, such as those in Arts. 101-105 (on piracy), Art. 110 (on boarding of foreign flag vessels on the high seas without the consent of the flag states), and Art. 111 (on hot pursuit). More importantly, however, in restating the all-important customary international legal principles of jurisdiction over ocean spaces, it determines the allocation of rights and obliga- tions between flag states on the one hand and coastal and port states on the other regarding security-related activities in these maritime zones. A second tier of relevant normative standards, either in place today or about to emerge, specifically addresses security-related activities on the oceans. It includes key post-9/11 international legal developments: the various amendments to the International Convention for the Safety of Life at Sea (SOLAS), including, in particular, Chapter XI-2 on “special measures to enhance maritime security”; the adoption of the International Ship and Port Facility Security (ISPS) Code; UN Security Council resolution 1540; and some international agreements that have yet to enter into force, namely, the 2005 Protocols to the 1988 SUA Convention and its Protocol3 and the International Convention on the Suppression of Acts of Nuclear Terrorism.4 Other global international legal instruments—the 1988 UN (Vienna) Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances; the 2000 UN Convention against Transnational Organized Crime;5 the Protocol against the Smuggling of Migrants by Land, Sea and Air supple- menting the UN Convention against Transnational Organized Crime;6 and the UN Convention against Corruption7—represent additional building blocks of a maritime-security-specific global legal architecture, yet to be completed. The aggregate effect of these legal agreements and instruments, whether in force or not, is to lend political support to the concept of MSP. As the embodi- ment of specific international legal authority bearing on MSP, they cover some of the activities that directly promote maritime domain awareness (MDA) and asso- ciated responses. At the same time, however, they also signal clearly the limits of states’ authority to take action on their own or on a limited regional basis in order to maximize MDA and related response options. Regional-security-related agree- 3 Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, and Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf. 4 United Nations, International Convention for the Suppression of Acts of Nuclear Terrorism, New York, Resolution No. A/RES/59/290, Annex, April 15, 2005, pp. 1-13. 5 United Nations, Resolution No. A/RES/55/25, Annex I, January 8, 2001. 6 United Nations, Resolution No. A/RES/55/25, Annex III, January 8, 2001. 7 United Nations, Resolution No. A/58/422, October 7, 2003.

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166 MaRITIMe SeCURITY PaRTNeRSHIPS ments, such as the recently concluded ASEAN Convention on Counterterrorism,8 play a similar dualistic role: While aiming at fostering cooperation on interna- tional security by participating states, they do not seek to create new international legal authority for security measures among the states concerned.9 Instead, the agreements tend to remain faithful to the traditional multilateral/global allocation of rights and obligations of states. They thereby confirm indirectly the existing global governance structure, pursuant to which international legal change of a general nature requires the general participation of states, if not their general consensus on the outcome. Finally, bilateral arrangements, such as the counterdrug agreements the United States has entered into with, for example, Caribbean and Latin American nations,10 admittedly often do change—bilaterally, or inter partes—the general rules of law that might apply to maritime security operations. However, these agreements cannot be considered in isolation from the multilateral legal plat- forms on which they are based and that provide the specific enabling authority or political coverage for individual states to enter into these bilateral agreements in the first place.11 Thus, the “bilaterals” do not in and of themselves provide a legal basis for expanded general maritime security cooperation among the states concerned, nor do they necessarily represent a model that could be readily emu- lated elsewhere in the world. By the same token, various informal understandings and non-law-based practical cooperative arrangements, such as the Proliferation Security Initiative (PSI),12 are undoubtedly useful in facilitating and promoting maritime security cooperation in general. However, they have not created new international legal authority where previously none existed.13 These kinds of arrangements, therefore, should not be mistaken for representing suitable substi- tutes for the type of explicit international legal authority, multilaterally agreed upon, that some MSP-related activities unquestionably require. 8 Done at Cebu, Philippines, January 13, 2007. 9 Note, e.g., Articles III-V of the Convention. 10 See infra note 87. 11 For example, the cooperative counterdrug agreements and arrangements that JIATF-S relies on are in turn embedded in the 1988 UN (Vienna) Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and the 2000 UN Convention against Organized Crime. Similarly, the Cooperating Nations Information Exchange System (CNIES) also derives support from the Inter- American Convention on Mutual Assistance in Criminal Matters, the UN Convention against Cor- ruption, and so on. 12 Or, the Global Initiative to Combat Nuclear Terrorism: See Statement of Principles by Par- ticipants in the Global Initiative to Combat Nuclear Terrorism, at . Accessed on April 17, 2008. 13 Indeed, as a rule, they are not intended to change applicable international legal rules, nor have they incidentally brought about such changes. See, for example, the preambular sentence of Principle 4 of PSI Statement of Interdiction Principles, which expressly requires that interdiction efforts be consistent with participating states’ “obligations under international law and frameworks.”

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167 aPPeNDIX C Specific Observations on Structure-of-Maritime-governance Issues To date there exists no overarching, comprehensive legal basis for maritime- security-specific measures. International law continues to provide only a partial or fragmented basis for the specific measures that might be indispensable for launch- ing a system of effective MSP. This situation represents both an opportunity and a handicap. It is an opportunity because it permits participants to engage in incre- mental steps toward implementing MSP with all the attendant political benefits of a “small steps, deliberate speed” approach. At the same time, it is a handicap because specific changes in the applicable rules of international law, whenever necessary, cannot readily be justified as mere “measures of implementation” by reference to a preexisting generic legal framework document or instrument on maritime security. Instead, proposed changes will have to be vetted individually as to their international legal acceptability, the existence of international author- ity, and, in particular, their compatibility with UNCLOS. As the constitution of the oceans, UNCLOS provides the fundamental legal framework for MSP. Thus any MSP-related proposals that imply changes in the maritime rules of the game bring into play UNCLOS. However, as the chief proponent of the MSP initiative, the United States is not at present a party to UNCLOS. The utility of bilateral legal understandings and formal agreements—as, for example, between the United States and Caribbean and Latin American nations— in fostering a web of single- or multiple-issue-focused security partnerships is self-evident. Operationally, bilateral or (limited) regional MSP is likely to be the most effective model of security cooperation. But, such arrangements will nor- mally not be feasible unless they are founded on a solid multilateral legal basis. The coalition-of-the-willing model à la PSI (which, for example, expressly disavows any intention to change traditional international law regarding the boarding of foreign flag vessels) does not obviate the need for recourse to proper multilateral processes and settings to effect legal change. It should be clearly understood, finally, that the scope of existing, emerging, or even proposed maritime-security-related international legal measures tends to be limited by two factors. First, generally speaking, public vessels—that is, war- ships and other vessels owned or operated by the government of a country and that are not engaged in commercial service14—will be either exempt from MDA- enhancing international rules and regulations or, if such rules do apply, will not be subject to the enforcement jurisdiction of any state other than their own flag state. Second, this restricted focus on commercial vessels, barges, and so on is 14 Under U.S. federal law, the distinction between commercial and noncommercial vessels tends to turn on the commercial vs. governmental nature of the activity the vessel is engaged in. See, for example, the definition in 33 CFR §160.24 and the by now traditional test for immunity under the Foreign Sovereign Immunities Act. By contrast, under UNCLOS itself the purpose of the activity will be the decisive criterion. See, for example, Arts. 31-32 in UNCLOS and the United Nations Conven- tion on Jurisdictional Immunities of States and Their Property, Article 16.

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16 MaRITIMe SeCURITY PaRTNeRSHIPS exacerbated by the fact that most international legal measures target vessels of a minimum size only—usually above 300 GT. As a result, the very large number of vessels that could be of concern from a maritime security perspective will not be covered by relevant applicable international standards or regulations or by some of the important standards that are about to become operational. 15 Since MSP would benefit from a generic, maritime-security-specific legal endorsement or declaration by states of basic principles and objectives and the designation of a lead international agency or organization, the Department of State (DoS) and the Department of Homeland Security (DHS)—of which the U.S. Coast Guard (USCG) is a part—need to support a broad-based diplomatic effort to this end. Such an effort might aim at the adoption of a resolution by the United Nations General Assembly or the Security Council. While it is generally accepted today that most of the provisions of UNCLOS are part of customary international law, and as such binding upon and benefiting the United States, U.S. ratification of UNCLOS would be an important step in support of MSP and would give the United States a place at the table in UNCLOS- based decision-making bodies and related processes. Thus the committee concurs with the President, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the Secretary of the Navy, the Chief of Naval Operations (CNO), the Com- mandant of the Marine Corps (CMC), and the Commandant of the Coast Guard (CCG) regarding ratification of UNCLOS at the earliest possible time. The United States would benefit from addressing other states’ concerns about the legitimacy of MSP by taking steps to bolster its multilateral and global credentials, by acknowledging the essentially multilateral nature of many of the tasks to be addressed, and by supporting the choice of multilateral and formal legal settings and forums, as appropriate, to ensure a transparent and inclusive process of review of the law of the sea and its adjustment if necessary. Various international organizations already have extensive security-related portfolios that bear on MSP activities. This is true in particular of the Interna- tional Maritime Organization (IMO), the United Nations Food and Agriculture Organization in relation to fisheries conservation and management (monitoring of fishing vessels), the World Customs Organization (WCO) in relation to container security, and Interpol. MSP-related efforts by U.S. stakeholders and agencies need to be tightly coordinated with the efforts of these organizations; indeed, the United States must secure their active involvement and draw on their relevant expertise and capacity. All U.S. stakeholders in MSP would benefit by fully supporting the DHS (that is, the USCG) efforts to address the issue of security for small vessels by working with other states toward reducing, within the ambit of the IMO and FAO, the threshold for applicability of the relevant international maritime-security- related standards and regulations. Particularly important are efforts to lower the 15A case in point is the new Long-Range Identification and Tracking (LRIT) system.

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169 aPPeNDIX C threshold to below 300 GT (or appropriate units of length16) in any new maritime- security-related international legal instruments. INTERNATIONAL LEgAL IMPLICATIONS OF THE IMPLEMENTATION OF kEy MDA-RELATED ObJECTIvES The implementation or operationalization of specific MDA-related objec- tives essential to making MSP effective will raise a number of international legal issues. This is notably true for proposals to enhance cargo and container security; to raise the situational awareness of port and coastal states regarding vessels of interest by improving global vessel tracking capabilities; to expand port and coastal states’ rights to access or right to vessel-related information; and to facili- tate the sharing of maritime information, assisted by global vessel/port databases, and so on. It is equally true of measures to facilitate the boarding, including the nonconsensual boarding, of foreign flag vessels in areas or situations not subject to national jurisdiction and control as a means to acquire or verify relevant infor- mation about vessels of interest. Cargo and Container Security—Off-shoring of Security Measures With more than 11 million containers estimated to enter the United States annually, incoming ships and their foreign-origin cargo and containers pose a very significant security threat to the country. Recognizing this threat and that national security would best be served by addressing it at the point of loading in foreign ports, Customs and Border Protection (CBP), an arm of DHS—in direct response to the terrorist attacks of 9/11—launched the Container Security Initia- tive (CSI) in 2002. Its objective is to place U.S. customs agents at foreign ports for the purpose of identifiying and prescreening U.S.-bound high-risk contain- ers before they are shipped to the United States. To date, the United States has entered into bilateral agreements to cooperate on customs and container security, with at least 50 foreign ports now involved in a CSI regime.17 CSI was initially conceived as, and thus far has been operated as, a program for the selective screening of U.S.-bound containers identified as a potential threat. However, full screening of all cargo destined for the United States through nonin- 16 Note, for example, that some regulations of the European Community, such as those that apply to systems for monitoring fishing vessels, use a minimum (vessel) length metric. 17 CSI is a reciprocal program, offering participating countries the opportunity to send their cus- toms officers to major U.S. ports to inspect oceangoing, containerized cargo to be exported to their countries. Japan and Canada currently station their customs personnel in some U.S. ports as part of the CSI program. Likewise, CBP shares information on a bilateral basis with its CSI partners. The most recent addition to this growing list of CSI ports is Jawaharlal Nehru Port in India, which signed on to CSI in July 2007.

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170 MaRITIMe SeCURITY PaRTNeRSHIPS vasive inspection is now set to become the modus operandi18 even though critics have raised legitimate doubts about the operational and/or economic feasibility of such an approach.19 A parallel program, the Department of Energy’s (DOE’s) Megaport Initiative,20 aims to deter, detect, and interdict trafficking in special nuclear materials and other radioactive materials by providing foreign commer- cial ports with U.S.-supplied and jointly operated technology and equipment. 21 Finally, an initiative complementary to CSI is the voluntary government-private sector program, the Customs-Trade Partnership Against Terrorism (C-TPAT). 22 It aims at securing the supply chain while expediting the cargo by establishing a system of trusted (or certified) agents in the international supply chain, such as importers, brokers, freight forwarders, and carriers, who would benefit from fast- tracking through stateside customs and security checks. A similar system based on the concept of an “authorized economic operator”23 is scheduled to enter into force on a European-Community-wide basis next year.24 One of the by-products of CSI is the 24-hour cargo rule,25 which requires sea carriers and nonvessel operating common carriers to provide CBP with a detailed description of the contents of a sea container bound for the United States 24 hours 18 Following the recommendation of the 9/11 Commission, the Improving America’s Security Act of 2007 will require the screening of all vessels and their cargo destined for the United States by 2014. Additionally, the SAFE Port Act, § 121(a), already imposes a requirement to scan for radiation—albeit in U.S. ports—all containers entering the country. 19 See, for example, “Bill to Scan All Containers Entering the U.S. Will Cause Chaos, Say Import- ers,” financial Times, July 26, 2007, p. 1. Additionally, the European Community has attacked the bill as not cost-effective. See “Brussels Attacks American Plan to Scan Shipping Containers,” financial Times, August 3, 2007, p. 4. 20 It is being administered by the U.S. National Nuclear Security Administration. 21A first such arrangement was entered into with the Bahamas in 2005. Since then several other countries have joined this initiative, including China, Jamaica, the Netherlands, Oman, and Singapore. 22 See the Security and Accountability for Every Port Act of 2006, Public Law 109-374 [SAFE Port Act], § 211. The CBP’s Customs–Trade Partnerships Against Terrorism (C-TPAT) program has a counterpart in the European Union’s “authorized economic operator” program, with both programs aiming at eventual mutual recognition of nationally certified measures for security and facilitation of trade. Note also complementary industry efforts by companies like Siemens and General Electric to prevent tampering with shipping containers. 23The EC regulation implements the World Customs Organization’s (WCO’s) Framework of Stan- dards to Secure and Facilitate Global Trade; § 2.3 (in footnote 1 on p. 6) defines “authorized economic operator” as “a party involved in the international movement of goods in whatever function that has been approved by or on behalf of the national Customs administration as complying with WCO or equivalent supply chain security standards.” 24 See Art. 14 of the Commission Regulation (EC) No. 1875/2006 of December 18, 2006, amending Regulation (EEC) No. 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No. 2913/92 establishing the Community Customs Code. 25 See 2005 CFR Title 19, Part 4—Vessels in Foreign and Domestic Trade, § 4.7 (2), according to which the incoming carrier must file on behalf of any vessel subject to a cargo declaration requirement as a condition for entry into a U.S. port the CBP-approved electronic equivalent of the vessel’s cargo declaration 24 hours before the cargo is laden aboard the vessel at the foreign port.

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171 aPPeNDIX C before the container is loaded on board a vessel. The rule allows CBP officers to analyze the information on container contents and identify potential terrorist threats before the U.S.-bound container is loaded at the foreign seaport, not after it arrives in a U.S. port. On a global, multilateral level, the December 2002 SOLAS Conference expressly recognized that maritime security was intrinsically tied to container security. Emphasizing that the intermodal and international nature of container movements necessitated ensuring the security of the entire supply chain, the Conference called on the WCO to address container security as a matter of urgency.26 WCO, as the international organization with primary responsibility for supply chain security,27 has since adopted the Framework of Standards to Secure and Facilitate Global Trade,28 which promotes customs-to-customs and customs-to-business networks to improve the security of closed transport units. 29 Its core elements include the harmonization among participating states of advance electronic cargo information requirements and a commitment by countries join- ing the Framework to accede to requests by authorities of the destination state to perform an outbound inspection of high-risk containers and cargo. 30 Specific Observations Cargo and container security measures might be perceived as disproportion- ately benefiting the United States, and their propagation in the context of mari- time security partnerships is therefore regarded as impolitic. But the very fact that the IMO, the WCO, other international organizations, and the European Com- munity31 have begun to address the issue demonstrates the wider international, indeed global, significance of container security: A serious security incident involving cargo or containers anywhere might have catastrophic consequences for maritime trade everywhere. Cargo and container security is also apt to raise an issue of delimitation, namely, the question of which aspects of container security come properly within the ambit of MSP. Many security-sensitive cargo operations take place outside ports—that is, they involve shoreside segments of the supply chain, such as 26 See Conference Resolution 9 on “Enhancement of Security Cooperation with the World Customs Organization (Closed Cargo Transport Units), Doc. SOLAS/CONF.5/34, Annex 2, 13. 27 In 2007 a joint IMO Maritime Safety Committee/Facilitation Committee working group agreed that the WCO, rather than IMO, had primary responsibility for “supply chain security.” 28WCO, Framework of Standards 6; see also WCO, Customs Guidelines on Integrated Supply Chain Management, June 2004. 29 ILO/IMO Code of Practice on Security in Ports supplements WCO work and ISPS Code require- ments on port security. 30WCO, Framework of Standards, § 1.3. 31The European Community’s Customs Security Program, whose main element is the “authorized economic operator” concept, simply underlines that legitimate concern about container security on the part of all major trading nations.

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172 MaRITIMe SeCURITY PaRTNeRSHIPS manufacture and initial loading and forwarding. Applying the broad definition of MDA that underpins the National Strategy for Maritime Security (NSMS),32 the complete supply chain might well be viewed as properly within the MDA focus. Of course, such a comprehensive approach raises questions about the allocation of responsibilities among competing organizations or agencies entrusted with maritime security—in short, functional specialization. Given that the present study’s focus is MSP involving the traditional international maritime commu- nity—that is, navies, the maritime law enforcement community, and the ship- ping and fishing industries—and consistent with the emerging division of labor among international organizations,33 only those shoreside segments of supply chain security that are located within or tied to the port of departure itself 34 are discussed in this appendix. In sum, two cargo and container security measures are directly and to a large degree associated with MDA, yet also best handled by agencies traditionally concerned with the security of vessels and ports: • The routine provision of cargo/container information to the destination state before the cargo or container is loaded on the vessel in the foreign port and • Outbound security inspections of cargo and containers at the request of the destination state. In imposing a 24-hour-in-advance electronic notification rule in 2002, the United States triggered the emergence of similar international normative expecta- tions. Thus Standard 6 of the WCO’s Framework of Standards recommends that customs administrations “require advance electronic information on cargo and container shipments in time for adequate risk assessment to take place.” 35 Fol- lowing this lead, the European Community now mandates a prearrival summary 32 See supra note 1. 33The issue has been a matter of concern for the IMO. At its 34th session in March 2007, IMO’s Facilitation Committee (FAL) approved a draft Joint Maritime Safety Committee/FAL circular on securing and facilitating international trade, which notes that the WCO has primacy over supply chain security, with IMO’s role being limited to those container security aspects related to ships and port facilities. Similarly, on the domestic front, CBP has taken the lead role in cargo security. Only when cargo is moved on the waterborne leg of the trade route does USCG have oversight of the cargo’s carriage requirements and the care needed for that cargo while on the vessel and at the port facility. 34The security screening and certification of cargo inland, that is, during its manufacture, loading, and transport into port, as well as of the parties involved in this process directly or indirectly—brokers, manufacturers, warehouse operators and carriers—represents a security function on the landward side of shipping operations. 35WCO Framework of Standards.

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173 aPPeNDIX C declaration for containerized cargo “at least 24 hours before loading at the port of departure.”36 Similarly, the CSI has paved the way for the adoption by the WCO of Standard 11 of the Framework of Standards, which recommends that a state’s “customs administration should conduct outbound security inspection of high- risk containers and cargo at the reasonable request of the importing country.” Although the standard is formulated as a mere recommendation, requested states might legally be required to respond pursuant to the terms of any applicable bilateral customs mutual assistance agreement.37 Considering the worldwide interdependence of maritime cargo operations, their potential vulnerability to acts of terrorism, and the likely worldwide reper- cussions of a major breach of container security, it would seem prudent for the DHS (that is, for the CBP and USCG) and the DoS to support efforts to make advance electronic cargo reporting a general international legal requirement. Spe- cifically, the 24-hour rule ought to become the binding legal standard applicable globally to international movements of closed cargo units. Similarly, accession by the authorities at the port of departure to a request by the destination state for an outbound security inspection can be made mandatory as a matter of general international law and subject to safeguards regarding the reasonableness of such a request and legitimate expectations of privacy. In parallel with these efforts, it would seem practical for CBP and other rel- evant agencies to extend the existing CSI program beyond its present geographic scope to additional foreign ports of interest. Port and Coastal States’ Maritime Domain Awareness “An effective understanding of anything associated with the maritime domain” that carries national security implications38 suggests an adequate, accurate, and timely flow of information to the actor(s) concerned. Viewed from an interna- tional legal perspective, MDA could be improved by expanding the present rights of port and coastal states to information about vessel movements; by improving general vessel tracking capabilities; and by strengthening maritime information exchanges through the expansion and better integration of global databases on 36This requirement is effective from July 1, 2009, and applies to containerized cargo only. See Art. 184a, § 1(a), of Commission Regulation (EC) No. 1875/2006 of December 18, 2006, amending Regulation (EEC) No. 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No. 2913/92 establishing the Community Customs Code. 37 For example, as of May 2007, the United States had entered into customs mutual assistance agreements with 60 countries and Taiwan. These agreements follow the WCO’s model bilateral as- sistance agreement. The (multilateral) International Convention on Mutual Administrative Assistance in Customs Matters, the Johannesburg Convention, which was adopted in June 2003 but is not yet in force, expressly encourages such binding arrangements. See Arts. 10 and 48(2) of the Convention. 38 See supra note 1.

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174 MaRITIMe SeCURITY PaRTNeRSHIPS vessels and ports. Some of these improvements, however, might involve changes in international law, a few of which might be sensitive. Port State’s Rights to Information Since, generally speaking, access to a state’s port is a privilege rather than a right, the port state39 is entitled to set conditions for the entry of an incoming vessel, including the provision of information. Leaving aside situations covered by special agreement40—bilateral, regional, or global—pursuant to which a for- eign flag vessel is granted the right of entry, a port state’s freedom to regulate access to its ports will in theory thus be limited only by considerations of reci- procity and the state’s obligation to provide international notification of any such requirements. Apart from the 24-hour container rule, commercial vessels are at present also subject to port state requirements regarding notification of their arrival. Thus the United States has adopted a 96-hour notice of arrival (NOA) requirement. 41 Among member states of the EC, a somewhat less stringent standard of notifica- tion in advance of arrival applies: Incoming vessels must report either (1) at least 24 hours prior to arrival or (2) upon leaving the previous port, if the voyage is less than 24 hours or if the port of call is not known or changes during the voyage, as soon as this information becomes available.42 More stringent reporting obliga- tions apply to vessels coming from ports outside the EC and carrying dangerous or polluting goods.43 The information to be communicated to the port state is of 39 In an international legal sense, “port state” connotes a state that may have international jurisdic- tion over a foreign flag vessel on account of the vessel’s declared intention to (voluntarily) visit that state’s port. Reference to “coastal state” denotes a state that may have jurisdiction over a vessel with no intention to put into a port of that state on account of the fact that it transits the territorial sea (out to a distance of 12 miles from shore) or the exclusive economic zone (out to 200 miles) of that state. The flag state, finally, is the vessel’s national state—i.e., the state whose flag the ship is entitled to fly. As a general rule, the flag state has primary jurisdiction over its vessel; however, in certain situations its jurisdiction may be concurrent only with that of the port or coastal state. 40 Indeed, states frequently enter into bilateral or multilateral agreements as a result of which they are legally bound to open their ports to vessels flying the flag of a treaty party. 41 See 33 CFR §160.212. 42 See Art. 4, para.1, of Directive 2002/59/EC of the European Parliament and the Council of June 27, 2002, establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC, OJ L 208/10, August 5, 2002. 43 See Art. 4, para. 2, and Art. 13.

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11 aPPeNDIX C vessel traffic management or marine environmental protection, such as the VTS, the SRS, or a ship-routing system, the coastal state will be legally entitled to information on vessels traversing these waters, information that may also have value from a security perspective. Additionally, a coastal state may have the right to obtain information from vessels physically present in the territorial sea, the contiguous zone, 72 or the EEZ in the course of enforcing its laws vis-à-vis a vessel suspected of an infraction. However, this right presupposes that, as a matter of international law as set out in various provisions of UNCLOS, the coastal state’s law and regulations on customs, fiscal, sanitary, and immigration matters; fisheries; and marine environ- mental protection actually do apply to the maritime zone in which the alleged infraction occurred and are enforceable given the location of the vessel when challenged by the coastal state’s law enforcement agency.73 Although the infor- mation a vessel would have to provide in these circumstances74 would be directly related to the suspected infraction (and there is, generally speaking, no coastal state jurisdiction regarding maritime security offenses75), it stands to reason that such information might also be useful from a security perspective. Finally, coastal states’ MDA is being given a potentially substantial boost by the improvement of global vessel tracking capabilities, based on current AIS carriage requirements and the soon-to-be-operational LRIT information system. • One of the acknowledged shortcomings of both AIS and LRIT is that their threshold of application—vessels of 300 GT or above—is relatively high and tends to exclude many vessels of interest from a maritime security standpoint. • The utility of AIS data and LRIT information could be maximized if they were collated and more widely distributed among maritime security decision makers. However, at present any proposal for integrating tracking data acquired 72 States may claim a zone contiguous to the territorial sea, which usually extends to 12 miles from the shore, out to a maximum distance of 24 miles. In this zone the coastal state may exercise limited jurisdictional powers in relation to the infringement of customs, fiscal, immigration and sanitary laws, and regulations that apply to its territory and territorial sea. 73Without going into unnecessary details, UNCLOS regulates in complex fashion a coastal state’s jurisdiction, an example of which is Art. 220, paras. 2-6, bearing on the enforcement by the coastal state of its laws for the prevention and control of marine pollution. 74 Note, for example, UNCLOS, Art. 220, para. 3, which provides as follows: “Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards, that State may require the essel to gie information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred” (emphasis added). 75 Except perhaps for certain violations of the coastal state’s criminal law by a vessel in that state’s territorial sea, as discussed below in the section “Vessel Boarding.”

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12 MaRITIMe SeCURITY PaRTNeRSHIPS through AIS or LRIT runs afoul of concerns about access to data, privacy, and so on.76 Today there are a number of international, multilateral maritime informa- tion exchange systems (see Appendix D) of differing quality and relevance to maritime security, the most promising being the Equasis database. Some of these systems are up and running, and others are still being set up. All of them, whether specifically dedicated to maritime security or not, presently do collect or eventually will collect, collate, and store data of potentially significant value from a security perspective. These information systems could provide an integrated data platform, which from the perspective of enhancing maritime security would be more valuable than the sum of its parts. The political challenge therefore will be to persuade states, the maritime community, and civil society that it might be possible to improve security through data sharing across these systems without sacrificing legitimate privacy interests or abandoning other safeguards against potential abuse. It would seem prudent for the DHS (the USCG), the DoS, and other U.S. stakeholders to support efforts to explore, within the IMO, the possibility of low- ering the present 300 GT threshold for vessels subject to the AIS and the LRIT requirements. Also, it would be prudent for them to support the adoption of a global international legal requirement for electronic monitoring systems, such as the VMS, for fishing vessels. All U.S. stakeholders, including the DOC’s National Oceanic and Atmo- spheric Administration (NOAA), would benefit from a reliable system for moni- toring fishing vessels worldwide, preferably as a stand-alone arrangement; the expansion of existing bilateral and multilateral cooperation based at the RFMO; and the integration of these databases into a global information system for fishing vessels. To this end, Equasis might serve as a model for an independent, multi- sourced, cost-effective international information system. The United States has an interest in the wider sharing of maritime-secu- rity-relevant information presently held by international maritime information exchanges. All U.S. stakeholders would benefit by supporting the following efforts: • Expansion of the reach of the Equasis database so that port state data from other regional port state control regimes that do not at present participate in Equasis could be fed into the system; • Harmonization of international reporting formats and procedures to per- 76 Note in this context that at its 79th session in December 2004, IMO’s Maritime Safety Committee warned “that the publication on the world-wide web or elsewhere of AIS data transmitted by ships could be detrimental to the safety and security of ships and port facilities and was undermining the efforts of the Organization and its Member States to enhance the safety of navigation and security in the international maritime transport sector.”

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13 aPPeNDIX C mit the sharing of information on vessels, operators, and cargo among existing international (and national) maritime information exchanges; and • Clarification and redress of legitimate concerns about data protection and privacy, concerns that invariably arise in the context of sharing information because some countries are more sensitive than others about these issues. vessel boarding: Interdiction The right to board foreign flag77 merchant ships78 is a critical component of any MDA-enhancing regime, because boarding directly serves the acquisition and verification of maritime-security-related information. From an international legal perspective, the boarding of foreign flag vessels that are in, bound for, or departing from a port or the internal waters of the boarding state is relatively unproblematic: A state’s jurisdiction over foreign vessels in port or in its internal waters is, after all, “necessarily exclusive and absolute.”79 The situation is differ- ent, however, when the vessel is simply passing through the state’s territorial sea, transiting that or another state’s EEZ, or navigating on the high seas proper. 80 In these circumstances a state’s right to board the foreign flag vessel will generally depend on the flag state’s consent or on specific boarding authority derived from UNCLOS or customary international law. If the authorities of one state would like to board the vessel of another state to respond to security-related concerns about that vessel, most flag states would likely accede to any reasonable boarding request. Permission to board could be granted ad hoc or may have been given in advance by way of special agreement between the flag state and the requesting state. Today, a large number of states have concluded bilateral agreements that facilitate, if not authorize in advance, the boarding of foreign flag vessels. The United States, in particular, has suc- cessfully established a network of cooperative arrangements, such as the mari- time counterdrug agreements with Caribbean and Central and South American states81 and ship boarding agreements to interdict weapons of mass destruction 77 Of course under international law and in international waters, states have an indisputable right to exert jurisdiction over their nationals—that is, over vessels flying their flag. 78Warships and government vessels operated for noncommercial purposes enjoy immunity from other states’ exercise of jurisdiction, including immunity from being boarded anywhere. In conse- quence, the following comments will address issues exclusively related to the boarding of foreign flag merchant or government vessels operated for commercial purposes. 79 C.J. Marshall, in The Schooner exchange . Mcfadden, Supreme Court of the United States, 1812; 11 U.S. (7 Cranch) 116, 3 Led. 287. 80Thus Art. 86 of UNCLOS provides that its high seas provisions specifically apply to “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or the internal waters of a State, or in the archipelagic waters of an archipelagic State.” 81The State Department’s Bureau of International Narcotics and Law Enforcement Affairs lists 26 bilateral maritime counterdrug agreements between the U.S. and Caribbean and Central and South American nations. See . Accessed on April 17, 2008.

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14 MaRITIMe SeCURITY PaRTNeRSHIPS (WMD),82 which give to varying degrees in advance (maybe 24 hours, maybe a month) permission for law enforcement agencies of the other cooperating party to board their flag vessels. Such special treaty-based authorizations do not, of course, cover vessels of all nations of potential interest, nor do they always provide clear or unrestricted authority to the boarding state. Indeed, many flag states remain reluctant to enter into such arrangements or, if they do, will often make their consent to boarding subject to various conditions. As a result, boarding of foreign flag vessels sus- pected of posing a security risk may be legally difficult if not impossible, unless, of course, the risk is such that boarding and other action against the vessel would be justifiable under the doctrine of self-defense,83 a situation not discussed fur- ther in this appendix. Instead, the focus here is on the limits of existing boarding authority under UNCLOS and customary international law, the absence thereof in other relevant maritime-security-related multilateral agreements, and the negative implications of this state of affairs for maximizing MDA. Under general international law, a state’s right to visit a foreign flag vessel without the consent of the flag state is generally a function of the location of the vessel or the maritime zone in which the vessel is being approached;84 its status—stateless vessel, merchant vessel, or warship; and the specific activity the vessel is suspected of engaging in. Leaving aside a state’s boarding author- ity derived from its status as a port state,85 a coastal state has limited boarding authority over vessels passing through its territorial sea or archipelagic waters. 86 It may, of course, take action, including boarding foreign flag vessels, to prevent passage that is not innocent. Art. 19, para. 1, of UNCLOS defines passage as innocent as long as it is not prejudicial to the peace, good order, or security of the coastal state. However, it has been the long-standing position of the United 82Thus far the United States has concluded seven ship-boarding agreements modeled after its coun- terdrug agreements with various Caribbean and Latin American countries to “operationalize” PSI. The seven countries are Belize, Croatia, Cyprus, Liberia, Malta, the Marshall Islands, and Panama. 83 Conservatively speaking, boarding would have to meet the classic test annunciated in the context of the Caroline incident—namely, that the necessity giving rise to the claim of self-defense is “in- stant, overwhelming, and leaving no choice of means, and no moment for deliberation.” See Letter of Secretary of State Daniel Webster to Lord Ashburton, dated August 6, 1842; reproduced at the Avalon Project, Yale Law School. Available at . Accessed on April 17, 2008. 84The right of approach on the part of a warship (or other properly marked government vessel authorized to carry out law enforcement functions) implies the right to request information about a foreign vessel’s identity, especially its nationality. This right does not per se imply also the right to visit or board (search, and so on) the foreign flag vessel. The right of approach can be exercised by a state’s warship and analogous government vessels on the high seas (including, for these purposes, other states’ EEZs) and the state’s territorial sea and EEZ. 85This authority can be invoked not only in respect of a vessel in port or the internal waters, but also in respect of inbound or outbound vessels in the state’s territorial sea. See UNCLOS, Art. 25, para. 2, and Art. 27, para. 2. 86 Foreign flag vessels transiting archipelagic waters—except for specifically designated “archipe- lagic sea lanes” to which the transit passage regime applies—are subject to the same innocent passage regime that applies to the territorial sea.

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15 aPPeNDIX C States and other countries that “any determination of non-innocence of passage by a transiting ship must be made on the basis of the acts it commits while in the territorial sea,”87 as specified in the all-inclusive list of Art. 19, para. 2. Thus a foreign flag vessel’s mere carriage of controversial cargo (say, of components of WMD) will not, without the commission of an act, permit the coastal state to characterize the vessel’s passage as noninnocent. Nor should the vessel’s means of propulsion, flag, origin, destination, or purpose of voyage provide legitimate grounds for determining passage as noninnocent.88 On the other hand, the coastal state is entitled to apply—indeed, may be required to enforce—its criminal laws regarding activities in its territorial sea. Thus in accordance with the require- ments of United Nations Security Council Resolution 1540, states must adopt and enforce laws that prohibit any nonstate actor from manufacturing, acquiring, possessing, developing, transporting, transferring, or using WMD or that prohibit their means of delivery, and so on. To the extent that a coastal state’s criminal law implementing Security Council Resolution 1540 covers the maritime transport of WMD and their components through its territorial sea,89 a foreign flag carrier would be deemed to violate that state’s laws, which might trigger the latter’s enforcement jurisdiction, including the right to board.90 A coastal state’s jurisdiction over foreign vessels further offshore—that is, within the contiguous zone (CZ) (up to 24 miles) or the EEZ (out to 200 miles)—is more attenuated still. The state’s boarding authority is correspond- ingly limited, in the sense of being functionally restricted, to the enforcement of applicable laws bearing on certain coastal states’ interests for the protection of which the respective maritime zones were established in the first place. Thus within the CZ a coastal state will be authorized to board a foreign flag vessel as part of its right to prevent violations of its customs, fiscal, immigration, and sanitary laws and regulations.91 In the EEZ, the coastal state has the right to board foreign fishing vessels as one of a number of specifically authorized measures to ensure compliance with its natural resource management/fisheries protection laws.92 Since the coastal state enjoys at least equivalent, if not stronger, rights regarding the management of natural resources or fisheries protection in its ter- 87 See Message from the President of the United States Transmitting the United Nations Convention on the Law of the Sea, Senate Doc. 103-39, 103rd Congress, 2d Sess. (1994), p. 15. 88 Ibid. 89 For example, under U.S. law, trafficking in WMD is a criminal offense if committed in the United States or the special maritime and territorial jurisdiction of the United States (see 18 USC 39, § 831(c)). For purposes of federal criminal jurisdiction, the territorial sea of the United States (extending out to 12 miles offshore) is within the “special maritime and territorial jurisdiction of the U.S.” within the meaning of title 18, USC. 90Thus Art. 27, para. 1(b), of UNCLOS specifically recognizes a coastal state’s right to board a foreign flag vessel “in connection with a crime committed during its passage” provided “the crime is of a kind to disturb the peace of the country or the good order of the territorial sea. . . .” 91 See UNCLOS, Art. 33. By the same token, the coastal state has the right to punish infringements of these laws and regulations as may have occurred in its territory or the territorial sea. 92 UNCLOS, Art. 73, para. 1.

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16 MaRITIMe SeCURITY PaRTNeRSHIPS ritorial sea, fisheries-enforcement-related boarding authority exists a fortiori also in the territorial sea. UNCLOS bestows significantly more circumscribed board- ing authority in relation to vessels navigating in the EEZ or territorial sea and suspected of having committed a violation—in the EEZ—of applicable pollution laws resulting in a substantial discharge.93 Again, in relation to vessels closer to the coast—namely, navigating in the territorial sea and suspected of having vio- lated therein applicable pollution laws—the coastal state has somewhat broader authority to board the vessel for the purpose of verifying the violation, securing evidence, and so on.94 Because ships on the high seas are subject to the exclusive jurisdiction of the flag state, they are not subject to boarding by any other state without the consent of the former, except in limited circumstances that have traditionally been recog- nized as entailing a right of visit or of boarding—that is, where there are reason- able grounds for suspecting the vessel to be engaged in piracy, the slave trade, or unauthorized radio broadcasting or to be a vessel without nationality. 95 The latter is directly related to the right of approach, which refers to a warship’s general authority to request information from any foreign vessel anywhere at sea except in another state’s territorial sea, for the purpose of verifying the vessel’s identity (registration and nationality). If suspicions about the vessel’s identity cannot be resolved by way of radio communications or, for example, the transmission by fax of relevant documentation or other such, the right of approach gives way to a right of visit, and the warship can proceed to a physical inspection on board.96 If, at the end of this process, the vessel turns out to be stateless 97or can be assimi- lated to being a stateless vessel,98 it will be subject to the boarding state’s laws and regulations as if it were a national vessel of that state. Beyond these traditional legal bases, there exists no equivalent boarding authority under general international law 99 vis-à-vis vessels suspected of engag- 93 See UNCLOS, Art. 220, paras. 5-6. Additional conditions related to, for example, the associated environmental threat and the evidentiary threshold must be met before boarding will be permitted. 94 UNCLOS, Art. 220, para. 2. 95 UNCLOS, Art. 110, para. 1. 96 UNCLOS, Art. 110, para. 2. 97 For example, the U.S. Maritime Drug Law Enforcement Act, 46a USC 1903, para. 2, defines a vessel without nationality as including (a) a vessel aboard which the master or person in charge makes a claim of registry, which claim is denied by the flag nation whose registry is claimed; (b) any vessel aboard which the master or person in charge fails, upon request of an officer of the United States empowered to enforce applicable provisions of U.S. law, to make a claim of nationality or registry for that vessel; and (c) a vessel aboard which the master or person in charge makes a claim of registry and the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality. 98Thus in accordance with UNCLOS, Art. 92, para. 2, “[a] ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.” 99As regards boarding on the high seas, the provisions of UNCLOS simply reflect customary international law.

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17 aPPeNDIX C ing in the trafficking of drugs,100 people, or weapons, including WMD. Nor is there as yet similar authority to board a foreign flag vessel on the high seas suspected of causing pollution of the marine environment or violating applicable fisheries laws.101 In short, general international law does not offer boarding authority specifically couched in maritime-security terms. It is true, of course, that existing, mostly functionally defined boarding rights carry weight from a security perspective. Information that might be lawfully gathered in the course of a vessel boarding related to a coastal state’s enforcement of pollution laws and regulations might well turn out to be useful also from a maritime-security perspective. Still, when it comes to maximizing MDA and enabling action based thereon, the international legal basis must be adjudged to be deficient. It has remained so despite various international legislative efforts to change the rules of the game by facilitating boarding, if not outright nonconsensual boarding, of foreign flag vessels to redress recognizable security risks associated with the vessels concerned. The most concerted effort in this respect was the review of the 1988 Sup- pression of Unlawful Acts (SUA) Convention and its Protocol, which resulted in the adoption, in 2005, of a new Protocol that fundamentally revises the original instruments. Although maritime interdiction of WMD and, associated therewith, the easing of traditional restrictions on the boarding, inspection, and further “pro- cessing” of vessels, their crew, and cargo were key objectives of this amendment process, in the end, the states negotiating these revisions could not move beyond flag state consent as the fundamental organizing principle for handling boarding issues under the 2005 Protocol. Thus Article 8bis emphatically underlines that the boarding of a ship navigating “seaward of any State’s territorial sea” is imper- missible “without the express authorization of the flag state,” even if that vessel or a person onboard is reasonably suspected of having been, being, or about to be involved in an act of terrorism involving WMDs.102 The same article sets out certain options for the flag state that might be viewed as mitigating somewhat the harshness of the article’s rejection of nonconsensual boarding in such dire cir- cumstances: Upon becoming a party to the 2005 Protocol, any state may declare that with respect to vessels flying its flag it accepts the principle of presumptive 100Thus Art. 17 of the 1988 Vienna Convention, supra note 14, which provides the basic multilateral legal framework for interdiction of drug trafficking at sea, simply reflects recognition of the traditional of the principle of flag state consent. 101 Some fishing vessels may, of course, be subject to boarding on the high seas under applicable regional or subregional fisheries management regimes or arrangements. But this authority can be invoked only between participating states and their fishing vessels or, more specifically, is premised on the flag state either (1) being a party to the RFMO concerned or to the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks Agreement [“FSA”] or (2) otherwise accepting the terms of the RFMO. 102 See Article 8bis, para. 5.

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1 MaRITIMe SeCURITY PaRTNeRSHIPS authorization if its authorities do not respond in timely fashion to another party’s request for boarding.103 Alternatively, it may give notice in advance of its authori- zation to board and search its vessel to determine whether a WMD-related offense has been, is being, or is about to be committed.104 Evidently, these optional decla- rations by states are a far cry from specific and mandatory language that, coupled with necessary safeguards against abuse, either eliminates altogether the need to obtain the flag state’s consent or establishes a legal presumption that boarding, search, seizure, and so on are authorized. Similarly, negotiations on Security Council Resolution 1540 may initially have aimed at changing the international rules on vessel boarding. However, once again, the U.S.-led effort fell short of moving states toward acceptance of the principle of nonconsensual boarding in situations involving the maritime trafficking of WMD by nonstate actors. 105 Finally, the PSI—which, unlike the 2005 SUA revisions and Security Council Resolution 1540, is not per se an international legislative initiative, nor as such capable of effecting international legal change—expressly commits participating states to ensure that their interdiction efforts be “consistent with their obligations under international law and frameworks.”106 The physical act of boarding is, of course, only a first step in the exercise by the boarding state of jurisdiction over the foreign flag vessel. The international lawfulness of boarding as such does not automatically also permit any conclu- sions about what additional steps the boarding state might be permitted to take in relation to the foreign vessel, its cargo, crew, or passengers. Rather, if there is boarding authority under general international law—say, on the grounds of reasonable suspicion that the vessel concerned is a pirate ship—the lawfulness of additional enforcement steps, such as search, seizure, arrest, and detention, will be a function of the specific reasons for which international law recognizes this exception to the flag state’s exclusive jurisdiction: As a hostis humani generis, any pirate will be deemed fair game, hence legally subject to the full jurisdictional authority of the boarding state. Similarly, if boarding appears justified on account of reasonable suspicions about a vessel’s identity, boarding will be strictly limited to permit a document check—i.e., to verify the vessel’s true identity. By the same token, when a flag state consents to the boarding of its flag vessel by another state, whether by special agreement in advance or ad hoc, its permission may be limited to just that and not necessarily include also authorization to investigate or 103 “Timely fashion” was elsewhere defined as 4 hours from the flag state’s acknowledgment of the receipt of a request to confirm the vessel’s nationality. See Art. 8bis, para. 5(d). 104Art. 8bis, para. 5(e). 105As Lars Olberg explains, one reason was “widespread concern about the resolution’s origins in the U.S. desire to pull in support for the Proliferation Security Initiative (PSI) . . . [with] China, Rus- sia, and many others making clear that this provision should not be understood as an authorization for interdictions not otherwise permitted by international law.” See L. Olberg, 2006, “Implementing Resolution 1540: What the National Reports Indicate,” Disarmament Diplomacy, 82, Spring, The Acronym Institute. Available at . Accessed on April 17, 2008. 106 PSI, Principle 4.

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19 aPPeNDIX C to further “process” the vessel. Indeed, all multilateral and most bilateral boarding arrangements carefully spell out steps requiring matching flag state authorization, vessel boarding, search, and seizure.107 Moreover, flag states may subject any or all of such segmented authorizations to conditions. From the MSP perspective, facilitation of the boarding of foreign flag vessels in maritime areas beyond national jurisdiction or control, including establishment of a special security-related exception to nonconsensual boarding, might not be a panacea but would certainly be useful. Vessel boarding permits the acquisition and/or verification of relevant information and, equally important, represents a first step in the enforcement action continuum. An easing of existing international legal restrictions on foreign flag vessel boarding would serve as a deterrent. Moreover, it is not clear to what extent a coastal state can exercise criminal jurisdiction over a foreign flag vessel during innocent passage simply on the grounds that the vessel carries WMD materials, components, and so on, and thereby violates the coastal state’s laws. It is also not clear to what extent a state is entitled not only to stop and search such a vessel navigating in the contiguous zone but also to seize its WMD-related cargo, as the PSI Statement of Interdiction Principles108 suggests. Specific Observations Thus far, the principle of exclusive flag state jurisdiction has survived all recent international legislative attempts to establish a separate exception for security-related boarding on the high seas. On the other hand, international treaty practice, in particular the bilateral practice of the United States, indicates an emerging trend toward facilitating boarding. There are several strands of this development. First, there is evidence of a progressive tightening of the deadline for flag states to respond to requests for boarding in international waters. Second, if by the end of this time period—usually 2 to 4 hours—the flag state cannot or will not respond to the request, its consent to boarding for purposes of document verification and/or search of the vessel will be presumed. Third, some treaties specifically require the flag state to “contract out” of the operating presumption of flag state consent. Finally, a number of agreements envisage the flag state’s assignment to third states of all its rights under the agreement concerning suspect 107 For example, Art. 17, para. 4, of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances differentiates carefully between flag state permission to stop and board the vessel, search the vessel, and—if evidence of involvement in illicit traffic is found—take appropriate action with respect to the vessel, persons, and cargo on board. Art. 9 of the Council of Europe Agreement on Illicit Traffic by Sea, Implementing Article 17 of the United Nations Conven- tion Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, ETS No. 156, establishes various subcategories of permitted conduct, thereby further segmenting the boarding state’s authority for “processing” the vessel, the cargo, and persons onboard. 108 Principle 4(d) PSI Statement of Interdiction Principles. Signed on September 4, 2003, by Aus- tralia, France, Germany, Italy, Japan, The Netherlands, Poland, Portugal, Spain, the United Kingdom, and the United States.

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190 MaRITIMe SeCURITY PaRTNeRSHIPS vessels claiming the flag state’s nationality.109 By contrast, the 2005 revisions of the SUA Convention and Protocol retain flag state consent as the basic operat- ing principle but permit states to declare in advance their consent to requests of boarding or their acceptance that in case of their failure to respond in timely fashion their consent may be presumed.110 In the aggregate, then, the picture that emerges differs from agreement to agreement, with U.S. treaty practice itself showing considerable variation in the specific boarding rights the United States has obtained. According to Art. 110 of UNCLOS, a vessel that fails to display a flag may be treated as a suspect vessel and boarded for purposes of verifiying documents bearing on its identity (nationality and registration). In practice, states in general may not be willing to authorize their warships or law enforcement vessels to board a foreign-flag vessel on the high seas (or, equivalently, exercising its free- dom of navigation elsewhere) simply to verify the vessel’s identity. This may be due to concern about interfering with legitimate maritime trade and commerce or over potential liability for any loss or damage resulting from the boarding. In consequence, many countries insist that boarding for documentation verification be preceded by an attempt to contact the (alleged) flag state to obtain its express consent. Some countries, however, do permit boarding without requiring an initial attempt to contact the purported flag state.111 Functionally, today the electronic signals a vessel must broadcast—the AIS and, soon, the LRIT system—are equiv- alent to physically displaying the flag of the national state. Therefore, the absence of such identifying transmissions, like the absence of a properly displayed flag, could be deemed prima facie evidence of a suspect vessel and could bring the vessel concerned within the ambit of UNCLOS, Art. 110, para. 2, which expressly authorizes warships to proceed to verify the vessel’s identify by boarding and checking its documentation. There does not appear to be an easing of existing international legal restric- tions on foreign flag vessel boarding. Boarding of foreign flag vessels in areas subject to limited or partial coastal 109 See, for example, Art. II of the 2004 Amendment to the Supplementary Arrangement Between the Government of the United States of America and the Government of the Republic of Panama to the Arrangement Between the Government of the United States of America and the Government of Panama for Support and Assistance from the United States Coast Guard for the National Maritime Service of the Ministry of Government and Justice. 110 See Art. 8bis, paras. 5(d) and 5(e), of the 2005 Protocol to the SUA Convention. 111 See, for example, Australia’s Customs Act 1901, sections 184A(9) and 185A. Similarly, some bi- lateral agreements permit boarding, without initial attempts at contacting the flag state, for purposes of document verification aboard a vessel claiming the nationality of one of the agreement states but not displaying the national flag, not displaying any marks of its registration or nationality, and claiming to have no documentation on board the ship. See Art. 4, para. 4, of the 2005 Agreement Between the Government of the United States of America and the Government of Belize Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea; see also identical provisions in other counterproliferation ship-boarding agreements between the United States on the one hand and Liberia and the Marshall Islands on the other.

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191 aPPeNDIX C state jurisdiction, such as the EEZ, the CZ, or the territorial sea, raises several conceptual issues as a result of the adoption of Security Council Resolution 1540, which could reshape the traditional understanding of the import of some key provisions of UNCLOS. The Chief of Naval Operations needs to encourage the DoS, DOJ, and DHS, among others, to strengthen bilateral and multilateral efforts to facilitate the boarding of foreign-flag vessels in international waters by shortening the requested flag state’s response time, establishing presumptive consent, and del- egation of bilaterally granted boarding authority to third states, among others. It would seem prudent to seek legal clarifications through consultations, in particular with the states that are parties to UNCLOS, as to whether: • A foreign flag vessel that does not have an AIS or an LRIT system on board provides reasonable grounds for questioning the vessel’s ostensible or claimed nationality and registration and would therefore be subject to boarding on the high seas for the purpose of checking the vessel’s documents; • A coastal state can exercise criminal jurisdiction on board a foreign flag vessel exercising innocent passage through the state’s territorial sea112 if it carries WMD-related materials, people, etc. whose maritime transportation is subject to criminal sanctions in accordance with the Security Council resolution 1540; • A flag state whose vessel is reasonably suspected of engaging in or being part of a terrorist plot or otherwise being used or guided by terrorists must give its consent to boarding or, conversely, can be presumed to give its consent; or • A vessel navigating in the contiguous zone and suspected of trafficking in, for example, WMD components could be considered as violating the coastal state’s customs laws within the meaning of UNCLOS, Art. 33. The Chief of Naval Operations needs to work with the Secretary of the Navy to ensure that the DOD and DHS reaffirm the rules of engagement along the lines of internationally established and commonly used law enforcement concepts regarding the right to board, investigate, seize, arrest, detain, and prosecute and to use reasonable force against resisting vessels or crews. Finally, in the long term, it would benefit the United States (and, in turn, DoS and DHS) to seek international support for a new maritime-security-related excep- tion to exclusive flag state jurisdiction over vessels on the high seas or exercising freedom of navigation elsewhere. Such a result is unlikely to be accomplished by amending the 2005 revisions of the Suppression of Unlawful Acts Convention and Protocol; at present the only conceivable, though still controversial, option might be to secure a binding Security Council resolution to this effect. 112 In accordance with UNCLOS, Art. 27, para. 1( b), on the ground that the crime concerned “is of a kind to disturb the peace of the country or the good order of the territorial sea.”