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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 committeeâs 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, âany measures taken to prevent terrorist acts against shipping, offshore installations and other maritime interests must be in conformity with international law, includ- ing UNCLOS.â Considering the importance that states in general ascribe to the United Nations Convention on the Law of the Sea (UNCLOS) as having a âuni- versal and unified characterâ whose âintegrity needs to be maintained,â 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 â 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 âsets 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. . . . â United Nations, Oceans and the Law of the Sea, New York, Resolution No. A/RES/61/222, Preamble, March 16, 2007, p. 1. â See, for example, United Nations Resolution No. A/RES/61/222, Preamble, March 16, 2007. 164
AppendiX C 165 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 âspecial measures to enhance maritime securityâ; 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 Protocol and the International Convention on the Suppression of Acts of Nuclear Terrorism. Other global international legal instrumentsâthe 1988 UN (Vienna) Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances; the 2000 UN Convention against Transnational Organized Crime; the Protocol against the Smuggling of Migrants by Land, Sea and Air supple- menting the UN Convention against Transnational Organized Crime; and the UN Convention against Corruptionârepresent 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 statesâ 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- â 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. â 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. â United Nations, Resolution No. A/RES/55/25, Annex I, January 8, 2001. â United Nations, Resolution No. A/RES/55/25, Annex III, January 8, 2001. â United Nations, Resolution No. A/58/422, October 7, 2003.
166 MARITIME SECURITY PARTNERSHIPS ments, such as the recently concluded ASEAN Convention on Counterterrorism, 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. 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 changeâbilaterally, or inter partesâthe 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 âbilateralsâ 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. â Done at Cebu, Philippines, January 13, 2007. â Note, e.g., Articles III-V of the Convention. 10â See infra note 87. 11â 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. 12â Or, the Global Initiative to Combat Nuclear Terrorism: See Statement of Principles by Par- ticipants in the Global Initiative to Combat Nuclear Terrorism, at <http://www.state.gov/r/pa/prs/ ps/2006/75405.htm>. Accessed on April 17, 2008. 13â 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 statesâ âobligations under international law and frameworks.â
AppendiX C 167 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 âsmall steps, deliberate speedâ 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 âmeasures of implementationâ 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 agreementsâas, for example, between the United States and Caribbean and Latin American nationsâ 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 Ã 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 vesselsâthat is, war- ships and other vessels owned or operated by the government of a country and that are not engaged in commercial service14âwill 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 14â 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 Â§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.
168 MARITIME SECURITY PARTNERSHIPS exacerbated by the fact that most international legal measures target vessels of a minimum size onlyâusually 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)âof which the U.S. Coast Guard (USCG) is a partâneed 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 statesâ 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 15â A case in point is the new Long-Range Identification and Tracking (LRIT) system.
AppendiX C 169 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 statesâ 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 SecurityâOff-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 DHSâin direct response to the terrorist attacks of 9/11âlaunched 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- 16â 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. 17â 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.
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 Energyâs (DOEâs) 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 âauthorized economic operatorâ23 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 18â Following the recommendation of the 9/11 Commission, the Improving Americaâs 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, Â§ 121(a), already imposes a requirement to scan for radiationâalbeit in U.S. portsâall containers entering the country. 19â See, for example, âBill to Scan All Containers Entering the U.S. Will Cause Chaos, Say Import- ers,â Financial Times, July 26, 2007, p. 1. Additionally, the European Community has attacked the bill as not cost-effective. See âBrussels Attacks American Plan to Scan Shipping Containers,â Financial Times, August 3, 2007, p. 4. 20â is being administered by the U.S. National Nuclear Security Administration. It 21â first such arrangement was entered into with the Bahamas in 2005. Since then several A other countries have joined this initiative, including China, Jamaica, the Netherlands, Oman, and Singapore. 22â See the Security and Accountability for Every Port Act of 2006, Public Law 109-374 [SAFE Port Act], Â§ 211. The CBPâs CustomsâTrade Partnerships Against Terrorism (C-TPAT) program has a counterpart in the European Unionâs âauthorized economic operatorâ 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. 23â The EC regulation implements the World Customs Organizationâs (WCOâs) Framework of Stan- dards to Secure and Facilitate Global Trade; Â§ 2.3 (in footnote 1 on p. 6) defines âauthorized economic operatorâ as âa 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.â 24â 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. 25â See 2005 CFR Title 19, Part 4âVessels in Foreign and Domestic Trade, Â§ 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 vesselâs cargo declaration 24 hours before the cargo is laden aboard the vessel at the foreign port.
AppendiX C 171 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 portsâthat is, they involve shoreside segments of the supply chain, such as 26â See Conference Resolution 9 on âEnhancement of Security Cooperation with the World Customs Organization (Closed Cargo Transport Units), Doc. SOLAS/CONF.5/34, Annex 2, 13. 27â 2007 a joint IMO Maritime Safety Committee/Facilitation Committee working group agreed In that the WCO, rather than IMO, had primary responsibility for âsupply chain security.â 28â WCO, Framework of Standards 6; see also WCO, Customs Guidelines on Integrated Supply Chain Management, June 2004. 29â ILO/IMO Code of Practice on Security in Ports supplements WCO work and ISPS Code require- ments on port security. 30â WCO, Framework of Standards, Â§ 1.3. 31â The European Communityâs Customs Security Program, whose main element is the âauthorized economic operatorâ concept, simply underlines that legitimate concern about container security on the part of all major trading nations.
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 securityâin short, functional specialization. Given that the present studyâs focus is MSP involving the traditional international maritime commu- nityâthat is, navies, the maritime law enforcement community, and the ship- ping and fishing industriesâand 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: â¢ 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 â¢ 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 WCOâs Framework of Standards recommends that customs administrations ârequire advance electronic information on cargo and container shipments in time for adequate risk assessment to take place.â 35 Fol- lowing this lead, the European Community now mandates a prearrival summary 32â See supra note 1. 33â The issue has been a matter of concern for the IMO. At its 34th session in March 2007, IMOâs 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 IMOâs 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 cargoâs carriage requirements and the care needed for that cargo while on the vessel and at the port facility. 34â The 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 indirectlyâbrokers, manufacturers, warehouse operators and carriersârepresents a security function on the landward side of shipping operations. 35â WCO Framework of Standards.
AppendiX C 173 declaration for containerized cargo âat least 24 hours before loading at the port of departure.â36 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 stateâs âcustoms administration should conduct outbound security inspection of high- risk containers and cargo at the reasonable request of the importing country.â 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 Statesâ Maritime Domain Awareness âAn effective understanding of anything associated with the maritime domainâ 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 36â This requirement is effective from July 1, 2009, and applies to containerized cargo only. See Art. 184a, Â§ 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. 37â 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 WCOâs 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. 38â See supra note 1.
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 Stateâs Rights to Information Since, generally speaking, access to a stateâs 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 agreement40âbilateral, regional, or globalâpursuant to which a for- eign flag vessel is granted the right of entry, a port stateâs freedom to regulate access to its ports will in theory thus be limited only by considerations of reci- procity and the stateâs 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 39â In an international legal sense, âport stateâ connotes a state that may have international jurisdic- tion over a foreign flag vessel on account of the vesselâs declared intention to (voluntarily) visit that stateâs port. Reference to âcoastal stateâ 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 vesselâs national stateâi.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. 40â 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. 41â See 33 CFR Â§160.212. 42â 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. 43â See Art. 4, para. 2, and Art. 13.
AppendiX C 175 a general nature;44 it is not security-specific as such but obviously will have some security implications.45 On top of the general prearrival notification, port states today are specifi- cally authorized to obtain notification of certain security information prior to the vesselâs entry into port.46 These states are entitled to information on the vesselâs security status pursuant to SOLAS Chapter XI-2 and the ISPS Code, specifi- cally on whether the vessel carries a valid International Security Certificate, as required; the security level at which the vessel operates; the security level at which the vessel operated in any previous port where the vessel has conducted a ship/port interface; and so on.47 Importantly, the vessel must keep a record of this information for the last 10 calls at port facilities,48 which would be accessible to port authorities before the vesselâs arrival in port, allowing the authorities to acquire a better picture of the security risks, if any, associated with the vessel. Coastal Stateâs Rights to Information and General Vessel Tracking General international law, both customary law and UNCLOS, severely cir- cumscribe a coastal stateâs informational rights regarding a vessel thatâwithout intending to call at a port of that stateâsimply passes through its territorial sea or transits its exclusive economic zone (EEZ).49 Thus it is generally agreed that a foreign flag vessel entering the territorial sea to exercise its right of innocent passage through these waters is not required to report its arrival to the coastal state or to provide other information such as its cargo. This is true, though the subject of some controversy, even for ships carrying ânuclear or inherently dan- gerous or noxious substances,â which must carry documents and observe special 44â Pursuant to 33 CFR Â§160.206, a notice of arrival must include information regarding vessel, voyage, cargo, crew, and persons on board, as well as vessel safety. The European Community law also prescribes submission of information on the vessel, voyage, cargo, crew, and any other person on board. See Annex I to Directive 2002/59/EC. 45â For example, U.S. regulations require all vessels on an international voyage to provide infor- mation on their last five ports of call. Information-submitting parties must also provide a vesselâs estimated time of departure and the name of the vessel charterer, if applicable. 46â For the corresponding domestic regulations in the United States and the European Community, see 33 CFR, Part 104, and Art. 6 of Regulation (EC) No. 725/2004 of the European Parliament and the Council of March 31, 2004, on enhancing ship and port facility security, OJ L 129/6, April 29, 2004, respectively. 47â See SOLAS Chapter XI-2; Special measures to enhance maritime security, Regulation 9, para. 2.1. 48â See SOLAS Chapter XI-2; Special measures to enhance maritime security, Regulation 9, para. 2.3. 49â Of course, to the extent that foreign flag vessels intend to engage in activities in the territorial sea or in the EEZ over which the coastal state has regulatory jurisdiction under UNCLOS, the vessel may be required to obtain permission from UNCLOS and a fortiori to notify the state of its intentions, including its arrival in the maritime zone concerned.
176 MARITIME SECURITY PARTNERSHIPS precautions established for such ships by international agreement.50 Similarly, vessels navigating in the EEZ have no informational obligations to the coastal state. This appears, for example, to be true also of a fishing vessel entering the EEZ for the purpose of transiting the waters, not fishing therein, despite the fact that the coastal state enjoys sovereign rights to its EEZâs natural resources and therefore might be deemed to have a legitimate interest in being notified of the arrival or presence of foreign fishing vessels. On the other hand, coastal states may be entitled to information bearing in particular on navigational safety, search and rescue (SAR), marine pollution prevention and control, and thereby also, albeit indirectly, on maritime security. For example, upon entry into areas of the sea subject to a mandatory Ship Report- ing System (SRS),51 a vessel must report to the appropriate coastal authority all required information in accordance with the provisions of the system. In general, the information to be supplied will be limited to the shipâs name, call sign, IMO identification number, and position. However, information on any operational defects of the ship and the nature of its cargo, if hazardous, might have to be communicated as well to the coastal state authorities.52 By the same token, ves- sels entering an area of vessel traffic services (Vessel Tracking System [VTS]) 53 within a coastal stateâs territorial sea will generally be required to report to the coastal state authorities, usually by radio, and may be tracked by the VTS control center. The use of VTS may be mandated only in sea areas within the territorial sea of a coastal state.54 Similarly, IMO-approved mandatory ship routing systems,55 including traffic separation schemes, deepwater routes, areas to be avoided, and the like, entail restrictions on vessel navigation, anchoring, and so on. These systems aim at enhancing maritime traffic safety and protecting the marine environment. A ves- 50â See Art. 23 of UNCLOS. 51â See SOLAS, Chapter V, Regulation 11 (mandatory if and when approved as such by IMOâs MSC). 52â See Guidance Note on the Preparation of Proposals on Shipsâ Routing Systems and Ship Report- ing Systems for Submission to the Sub-Committee on Safety of Navigation, IMO Doc. Maritime Safety Committee Circ.1060, January 6, 2003, Annex, p. 5, para. 6.2.2. 53â The purpose of a VTS is to provide active monitoring and navigational advice for vessels in particularly confined and busy waterways. There are two main applications of VTS: (1) systems subject to surveillance that involve one or more land-based sensors (radar, AIS, and closed circuit television sites) and (2) systems that output their signals to a central location where operators moni- tor and manage vessel traffic movement. Systems not subject to surveillance involve one or more reporting points at which ships are required to report their identity, course, speed, and other data to the monitoring authority. 54â See SOLAS, Chapter V, Regulation 12, para. 3. 55â See SOLAS, Chapter V, Regulation 10. Ship routing measures become mandatory if and when approved as such by IMOâs Maritime Safety Committee.
AppendiX C 177 sel that enters any such area must comply with applicable routing measures 56 and thus may be subject to monitoring by the coastal state(s) concerned. 57 Limited though a coastal stateâs legal authority might be in obtaining infor- mation on or monitoring foreign flag vessels in the waters off its coast, this lack of authority is being offset by legal developments that have created or will create new vessel tracking capabilities. The first of these is the emergence of a general legal requirement that vessels be equipped with an Automatic Identifica- tion System (AIS).58 The system,59 which transmits a vesselâs identifying signal and other relevant information,60 could obviously be a potent tool for improving coastal statesâ MDA. However, AIS suffers from several drawbacks, including the distance range or frequency range over which its transmission can be received, the need for coastal state infrastructure, and the potential security and safety risks associated with open broadcasting of vessel data. Effective January 1, 2008, a new IMO regulation on LRIT will enter into force as part of a revised SOLAS Chapter V: Safety of Navigation. It requires ves- sels subject to the regulation61 to be fitted with LRIT equipment to automatically transmit information that will allow LRIT, both for security and SAR purposes, without unduly impacting the security of the transmitting vessel itself. For this reason, and unlike the fairly comprehensive vessel data made available through AIS, LRIT will divulge only the shipâs identity, location, and date and time of its position. Moreover, there will be no interface between AIS and LRIT. Whereas AIS information is broadcast, hence potentially available to anyone, LRIT infor- mation will be available only to the flag state, the port state (if the vessel plans to call at its port(s)), governments conducting SAR operations and enquiring about ships in the area, and coastal states. The latter will be entitled to tracking informa- 56â The Convention on the International Regulations for Preventing Collisions at Sea (COLREG), Regulation 10, also regulates the navigation of ships in or near traffic separation schemes established pursuant to SOLAS V/10. 57â Ibid., Regulation 10, paras. 6 and 7. 58â The AIS requirement is one of the results of the 2002 SOLAS Conference amending SOLAS Chapter V, Regulation 19. It applies to all ships of 300 GT or more engaged in international voyages and to ships of 500 GT or more not on international voyages, as well as all passenger ships irrespective of size. Although ostensibly a safety-related standardâAIS is part of SOLAS Chapter V focusing on navigational safety rather than of Chapter XI-2 dealing with special maritime security measuresâit clearly has major security implications. 59â For a full discussion of AISâs technical specifications and capabilities, see Chapter 3. 60â The required data inputs, specified in IMO guidelines for the installation of shipborne automatic identification systems, include, inter alia, the vesselâs position, heading, rate of turn, and navigational status. Additionally, information to be entered at initial installation of an AIS includes the maritime mobile service identity (MMSI) number, an IMO vessel number, the shipâs name, its dimensions, and its type. 61â The LRIT regulation applies to ships on international voyages: passenger ships, including high- speed craft; cargo ships, including high-speed craft, of 300 GT or more; and mobile offshore drilling units. The requirement will be gradually phased in after December 31, 2008.
178 MARITIME SECURITY PARTNERSHIPS tion from ships within 1,000 miles of their coasts, irrespective of whether or not the vessel intends to call at a port in the state concerned. 62 Finally, fishing vessels are increasingly required to carry transmittersâvessel monitoring systems (VMSs)âthat automatically report via satellite their posi- tions at predetermined intervals or when requested. Moreover, VMS can deliver in near real time supplementary data on the vesselâs catch, fishing activities, and so on. This growing mandatory use of VMS is explained by two developments: (1) a great portion of the high seas is now subject to a Regional Fisheries Man- agement Organization (RFMO) scheme that may require fishing vessels to carry VMS as a condition of entry into that fishing area63 and (2) a growing trend in the United States and EC countries64 to stipulate that fishing vessels flying their flag be equipped with VMS, irrespective of where they fish.65 This latter development has encouraged the expectation that in the near future the use of VMS on fishing vessels might become mandatory worldwide.66 Clearly, a requirement for VMS on fishing vessels worldwide would significantly enhance MDA. Enhanced Maritime Information Exchanges Considering the importance of oceans for humankind as a whole, 67 it is not surprising that nowadays data are routinely being collected on every aspect of the state of the oceans, in particular the impact of human activities on it, including the operations of the vessels. In this vein, states have established several central- 62â IMOâs Web site claims that âthe SOLAS regulation on LRIT does not create or affirm any new rights of States over ships beyond those existing in international law, particularly, the United Nations Convention on the Law of the Sea (UNCLOS), nor does it alter or affect the rights, jurisdiction, du- ties and obligations of States in connection with UNCLOS.â Nevertheless, a coastal stateâs access to information on vessels outside its traditional jurisdictional reach is unprecedented. 63â For example, Art. 11 of the North-East Atlantic Fisheries Commissionâs (NEAFCâs) Scheme of Control and Enforcement (2007) requires each NEAFC contracting party to ensure that fishing vessels flying its flag carry VMS in the RFMO area for purposes of tracking the vessel and its catch. 64â According to Commission Regulation (EC) No. 2244/2003 of December 18, 2003, which sets forth detailed provisions regarding satellite-based VMSs, all EC fishing vessels subject to VMS must have a satellite-tracking device installed on board to ensure automatic transmission to the Fishing Monitoring Center of the flag member state, at all times, of data relating to the fishing vesselâs iden- tification, its most recent geographical position, the date and time of the said position, and, effective January 1, 2006, its speed and course. 65â list of VMS programs worldwide can be found at <http://www.fao.org/fishery/vms/3>. Ac- A cessed on April 17, 2008. 66â Note that the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act, 2006, authorizes the Secretary of Commerce to support coordinated international efforts to ensure that all large-scale fishing vessels on the high seas be equipped with monitoring systems by December 31, 2008. 67â For example, the U.S. Commission on Ocean Policy, in An Ocean Blueprint for the 21st Century: Final Report 1-2 (2004), points to the ocean as a highway for transporting goods and people; as a source of food, energy, and, potentially, life-saving drugs; as a venue for recreation and tourism; as a regulator of global climate; and as a cultural asset and source of aesthetic pleasure.
AppendiX C 179 ized international databases to track compliance by flag states, vessel operators and owners, and other relevant actors with applicable international regulatory standards related to the environment, fisheries protection, navigational safety, or maritime security. Most of these maritime information exchange systems, listed in Appendix F, are at least potentially useful for MDA. If these informa- tion exchanges were to cooperate by sharing information on vessels, cargoes, and operators of interest, their aggregate value to maritime security could be considerable. Among security-specific databases, mention must be made of the Global Integrated Shipping Information System (GISIS), a Web-based data system that permits verification of compliance with the maritime security provisions of SOLAS Chapter XI-2 and the ISPS Code. However, the GISIS security-related information is limited and includes only data that SOLAS contracting states must provide pursuant to SOLAS Chapter XI-2/13.68 On the other hand, detailed data on vessels are being collected by port state information exchanges, the premier example of which is the Equasis database. This database involves all states par- ticipating in the Paris and Tokyo Memorandum of Understanding on Port State Control, the European Maritime Safety Agency, the USCG, and other maritime organizations and entities. GISIS offers a compilation of information on merchant vessels over 100 GT, which is generated in the course of port state inspections typically checking on vessel compliance with international standards on marine environmental protection, maritime safety, seafarersâ well-being, fisheries pro- tection, and maritime security. There is additional input from various private data providers, including classification societies, the P&I Clubs, and Lloydâs of Â London. The EC maintains a similar system for exchanging information, Â afeSeaNet. However, that database is primarily geared to tracking vessel opera- S tions in European waters from a safety and pollution prevention perspective. Other maritime-security-relevant multilateral databases include the proposed Central Automated (Cargo/Customs) Information System, which would facili- tate information exchanges between national customs authorities on container security. Additionally, there exist some regional arrangements, a prime example of which is the Cooperating Nations Information Exchange System (CNIES), described in greater detail in Chapter 3. One of the major blemishes on the global maritime information picture is the fact that there is still no centralized, comprehensive, and reliable database on high-seas fishing vessels, let alone a database that covers all fishing vessels above a certain minimum size. FAO maintains a database, the High Seas Vessel Autho- rization Record. However, not only is input into that data system incomplete and 68â This includes, inter alia, national contact details, approved port facility security plans, and any changes thereto.
180 MARITIME SECURITY PARTNERSHIPS sporadic because only a limited number of states participate, but it is exclusively flag-state-based and therefore suffers from a critical systemic flaw. 69 Specific Observations on the Port and Coastal Statesâ Informational Rights, Vessel Tracking, and Maritime Exchanges Like port states, states in general make access to port contingent on a vesselâs prior notification of its arrival. Notice-of-arrival (NOA) requirements tend to vary from country to country, although the EC has established a common 24-hour rule for the ports of its member states. The United States subjects incoming vessels to a more stringent 96-hour standard. A port stateâs ultimate sanction for noncompli- ance with its NOA requirement is denial of entry into port. By virtue of general international law as well as maritime-security-specific special legislationânamely, SOLAS Chapter XI-2âport states are legally in a position to demand security-relevant information from any vessel in advance of its arrival in port. Once a vessel is in port, the port state may be able to secure additional security-relevant information: â¢ Since pursuant to SOLAS Chapter XI-1, on special measures to enhance maritime safety, any foreign flag vessel is subject to port state control on opera- tional requirements, port authorities will have access to the vesselâs continuous synopsis record (CSR). The CSR lists details of the history of the ship, such as its registration, ownership, charter status (if applicable), classification, and so on70âin short, information with significant security implications. â¢ Exceptionally, a port state might be able to also gain access to the voyage data recorder (VDR) that passenger ships and ships other than passenger ships of 3,000 GT or more installed on or after July 1, 2002. Although the primary purpose of a VDR is to assist in accident investigations, it could help in recon- structing a suspect vesselâs operational status and movements prior to its arrival at the port.71 Under the general law of the sea, a coastal stateâs right to information on vessels that merely pass through or transit its offshore waters (the territorial sea and the EEZ) are limited. However, to the extent that any portion of its territorial sea is subject to a special IMO-approved mandatory regime for the purpose of 69â The critical weakness is that a system such as HSVAR relies on âthe authenticity of information provided by or through the flag State of the vessel concerned.â (See High Seas Task Force, âHow to Get Better Information about High Seas Fishing Vessels,â HSTF/05, February 25, 2005, p. 2.) 70â See SOLAS Chapter XI-1, Regulation 5, para. 3. 71â December 2004, IMOâs Maritime Safety Committee adopted amendments to SOLAS Chapter In V, Regulation 20, on a phased-in carriage requirement for a shipborne simplified voyage data recorder (S-VDR). The amendments entered into force on July 1, 2006. This S-VDR still requires secure and retrievable storage of information concerning the position, movement, physical status, and command and control of a vessel during the period leading up to and following an incident.
AppendiX C 181 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-Ã -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 stateâs 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 stateâs 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 statesâ 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. â¢ One of the acknowledged shortcomings of both AIS and LRIT is that their threshold of applicationâvessels of 300 GT or aboveâis relatively high and tends to exclude many vessels of interest from a maritime security standpoint. â¢ 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 72âStates 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. 73âWithout going into unnecessary details, UNCLOS regulates in complex fashion a coastal stateâs 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. 74âNote, for example, UNCLOS, Art. 220, para. 3, which provides as follows: âWhere 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 vessel to give 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 occurredâ (emphasis added). 75âExcept perhaps for certain violations of the coastal stateâs criminal law by a vessel in that stateâs territorial sea, as discussed below in the section âVessel Boarding.â
182 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 DOCâs 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: â¢ 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; â¢ Harmonization of international reporting formats and procedures to per- 76â Note in this context that at its 79th session in December 2004, IMOâs Maritime Safety Committee warned âthat 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.â
AppendiX C 183 mit the sharing of information on vessels, operators, and cargo among existing international (and national) maritime information exchanges; and â¢ 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 stateâs jurisdiction over foreign vessels in port or in its internal waters is, after all, ânecessarily exclusive and absolute.â79 The situation is differ- ent, however, when the vessel is simply passing through the stateâs territorial sea, transiting that or another stateâs EEZ, or navigating on the high seas proper. 80 In these circumstances a stateâs right to board the foreign flag vessel will generally depend on the flag stateâs 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 77â Of course under international law and in international waters, states have an indisputable right to exert jurisdiction over their nationalsâthat is, over vessels flying their flag. 78â Warships and government vessels operated for noncommercial purposes enjoy immunity from other statesâ 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. 79â C.J. Marshall, in The Schooner Exchange v. McFadden, Supreme Court of the United States, 1812; 11 U.S. (7 Cranch) 116, 3 Led. 287. 80â Thus Art. 86 of UNCLOS provides that its high seas provisions specifically apply to âall 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.â 81â The State Departmentâs 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 <http://www.state.gov/p/inl/rls/nrcrpt/2007/vol1/html/80853.htm>. Accessed on April 17, 2008.
184 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 stateâs 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 statusâstateless vessel, merchant vessel, or warship; and the specific activity the vessel is suspected of engaging in. Leaving aside a stateâs 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 82â Thus far the United States has concluded seven ship-boarding agreements modeled after its coun- terdrug agreements with various Caribbean and Latin American countries to âoperationalizeâ PSI. The seven countries are Belize, Croatia, Cyprus, Liberia, Malta, the Marshall Islands, and Panama. 83â Conservatively speaking, boarding would have to meet the classic test annunciated in the context of the Caroline incidentânamely, that the necessity giving rise to the claim of self-defense is âin- stant, overwhelming, and leaving no choice of means, and no moment for deliberation.â 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 <http://www.yale.edu/lawweb/avalon/diplomacy/britain/br- 1842d.htm#ash1>. Accessed on April 17, 2008. 84â The 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 vesselâs 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 stateâs warship and analogous government vessels on the high seas (including, for these purposes, other statesâ EEZs) and the stateâs territorial sea and EEZ. 85â This 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 stateâs territorial sea. See UNCLOS, Art. 25, para. 2, and Art. 27, para. 2. 86â Foreign flag vessels transiting archipelagic watersâexcept for specifically designated âarchipe- lagic sea lanesâ to which the transit passage regime appliesâare subject to the same innocent passage regime that applies to the territorial sea.
AppendiX C 185 States and other countries that âany 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,â87 as specified in the all-inclusive list of Art. 19, para. 2. Thus a foreign flag vesselâs 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 vesselâs passage as noninnocent. Nor should the vesselâs 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 applyâindeed, may be required to enforceâits 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 stateâs 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 stateâs laws, which might trigger the latterâs enforcement jurisdiction, including the right to board.90 A coastal stateâs jurisdiction over foreign vessels further offshoreâthat is, within the contiguous zone (CZ) (up to 24 miles) or the EEZ (out to 200 miles)âis more attenuated still. The stateâs boarding authority is correspond- ingly limited, in the sense of being functionally restricted, to the enforcement of applicable laws bearing on certain coastal statesâ 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- 87â 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. 88â Ibid. 89â 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, Â§ 831(c)). For purposes of federal criminal jurisdiction, the territorial sea of the United States (extending out to 12 miles offshore) is within the âspecial maritime and territorial jurisdiction of the U.S.â within the meaning of title 18, USC. 90â Thus Art. 27, para. 1(b), of UNCLOS specifically recognizes a coastal stateâs right to board a foreign flag vessel âin connection with a crime committed during its passageâ provided âthe crime is of a kind to disturb the peace of the country or the good order of the territorial sea. . . .â 91â 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. 92â UNCLOS, Art. 73, para. 1.
186 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 violationâin the EEZâof applicable pollution laws resulting in a substantial discharge.93 Again, in relation to vessels closer to the coastânamely, navigating in the territorial sea and suspected of having vio- lated therein applicable pollution lawsâthe 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 boardingâthat 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 warshipâs general authority to request information from any foreign vessel anywhere at sea except in another stateâs territorial sea, for the purpose of verifying the vesselâs identity (registration and nationality). If suspicions about the vesselâs 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 stateâs 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-Ã -vis vessels suspected of engag- 93â 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. 94â UNCLOS, Art. 220, para. 2. 95â UNCLOS, Art. 110, para. 1. 96â UNCLOS, Art. 110, para. 2. 97â 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. 98â Thus in accordance with UNCLOS, Art. 92, para. 2, â[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.â 99â As regards boarding on the high seas, the provisions of UNCLOS simply reflect customary international law.
AppendiX C 187 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 stateâs 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 âpro- cessingâ 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 âseaward of any Stateâs territorial seaâ is imper- missible âwithout the express authorization of the flag state,â 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 articleâs 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 100â Thus 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. 101â 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 [âFSAâ] or (2) otherwise accepting the terms of the RFMO. 102â See Article 8bis, para. 5.
188 MARITIME SECURITY PARTNERSHIPS authorization if its authorities do not respond in timely fashion to another partyâs 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 stateâs 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 PSIâwhich, 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 changeâexpressly commits participating states to ensure that their interdiction efforts be âconsistent with their obligations under international law and frameworks.â106 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 lawâsay, on the grounds of reasonable suspicion that the vessel concerned is a pirate shipâthe 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 stateâs 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 vesselâs identity, boarding will be strictly limited to permit a document checkâi.e., to verify the vesselâs 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 103â âTimely fashionâ was elsewhere defined as 4 hours from the flag stateâs acknowledgment of the receipt of a request to confirm the vesselâs nationality. See Art. 8bis, para. 5(d). 104â Art. 8bis, para. 5(e). 105â As Lars Olberg explains, one reason was âwidespread concern about the resolutionâs 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.â See L. Olberg, 2006, âImplementing Resolution 1540: What the National Reports Indicate,â Disarmament Diplomacy, 82, Spring, The Acronym Institute. Available at <http://www.acronym.org.uk/dd/dd82/82lo.htm>. Accessed on April 17, 2008. 106â PSI, Principle 4.
AppendiX C 189 to further âprocessâ 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 stateâs 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 periodâusually 2 to 4 hoursâthe 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 âcontract outâ of the operating presumption of flag state consent. Finally, a number of agreements envisage the flag stateâs assignment to third states of all its rights under the agreement concerning suspect 107â 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, andâif evidence of involvement in illicit traffic is foundâtake 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 stateâs authority for âprocessingâ the vessel, the cargo, and persons onboard. 108âPrinciple 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.
190 MARITIME SECURITY PARTNERSHIPS vessels claiming the flag stateâs 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 vesselâs 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 broadcastâthe AIS and, soon, the LRIT systemâare 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 vesselâs 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 109â 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. 110â See Art. 8bis, paras. 5(d) and 5(e), of the 2005 Protocol to the SUA Convention. 111â See, for example, Australiaâs 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.
AppendiX C 191 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 stateâs 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: â¢ A foreign flag vessel that does not have an AIS or an LRIT system on board provides reasonable grounds for questioning the vesselâs ostensible or claimed nationality and registration and would therefore be subject to boarding on the high seas for the purpose of checking the vesselâs documents; â¢ A coastal state can exercise criminal jurisdiction on board a foreign flag vessel exercising innocent passage through the stateâs 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; â¢ 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 â¢ A vessel navigating in the contiguous zone and suspected of trafficking in, for example, WMD components could be considered as violating the coastal stateâs 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. 112â accordance with UNCLOS, Art. 27, para. 1( b), on the ground that the crime concerned âis In of a kind to disturb the peace of the country or the good order of the territorial sea.â