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Article Excerpt
[In the wake of September 11, 2001, efforts to protect against future terrorist attacks have affected many areas of international law, including the law of the sea. Australia's interests in improving its maritime security, were articulated at the end of 2004 with the adoption of the Australian Maritime Identification System, which is intended to identify vessels within 1000 nautical miles of Australia's coast. One difficulty faced is that the steps that Australia may take to ensure better protection of maritime assets' and shipping against terrorist attack are limited under international law. States have endeavoured to improve the existing legal framework through the adoption of the International Ship and Port Facility, Security, Code, the Proliferation Security Initiative, bilateral treaties to allow ship-boarding, and a new protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. However, inadequacies remain because states are constantly constrained by the fundamental principles of the law of the sea, which emphasise the freedom of navigation and the exclusive authority of flag states. It is argued here that it is only when exclusive interests in flag state control and inclusive interests in the freedom of navigation are reconceived to account for a common interest in enhancing maritime security that weaknesses in the existing legal regime may be overcome.]
CONTENTS I Introduction II The Balance of States' Interests in Different Maritime Zones A The Freedoms of the High Seas B Sovereignty over Territorial Seas C Sovereign Rights and Jurisdiction over the EEZ and the Continental Shelf III Post-September 11 Legal Developments to Enhance Maritime Security A The International Ship and Port Facility Security Code B The Proliferation Security Initiative C Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation D US Bilateral Ship-Boarding Agreements E Security Council Resolution 1540 IV The Need to Re-Balance States' Interests to Enhance Maritime Security V Conclusion
I INTRODUCTION
The events of September 11, 2001 brought myriad security concerns to international attention and provided the catalyst for significant changes in both national and international legal regimes. International rules concerning the use of force, international humanitarian law and human rights law have been adapted, or breached, in the face of perceived threats posed by al Qaeda and its associated organisations. Given the deadly use of aircraft on September 11, attention has subsequently been focused on the possibility of other modes of international transport being used for terrorist purposes. It is in this context that the maritime industry has been subjected to scrutiny, prompting modifications to existing legal regimes that deal with maritime security issues.
Threats to maritime security may take various forms. Ships may be used for the transportation of terrorists, their supplies and their weapons. Of particular concern is the possibility of weapons of mass destruction being sent to terrorists or to states involved in the proliferation of these weapons. There is also the further risk of a large oil tanker, or a vessel shipping liquid natural gas, being hijacked and exploded in a narrow strait, or being rammed into a major port. Equally, small boats may be used to collide with an oil tanker or comparable vessel to similar effect, (1) In addition to the potential for loss of life and injury, the economic ramifications of a major terrorist attack against international shipping are significant, given that approximately 80 per cent of the world's goods are transported via the ocean. (2) Closure of a major port hub or vital shipping route could cause severe economic repercussions on a global scale. (4)
The Australian Government is keenly aware of the dangers posed by maritime terrorism, including the proliferation of weapons of mass destruction among non-state actors. Alexander Downer, the Minister for Foreign Affairs, has stated that 'so sophisticated and widespread is this threat [of proliferation] that we must confront it directly--with action, not merely talk of action'. (4) One step that Australia took in this regard was the establishment of the Australian Maritime Identification System ('AMIS'). (5) Australia initially proposed that a Joint Offshore Protection Command ('Joint Command'), comprising the Australian Defence Force and the Australian Customs Service, would implement, coordinate and manage the identification of vessels (including their crew, cargo and course of journey) proposing to enter Australian ports when those vessels are still 1000 nautical miles from the coast. It was also envisaged that the Joint Command would identify all vessels, except day recreational boats, transiting Australia's Exclusive Economic Zone ('EEZ'). (6) Not only would Australia request such information, but the Australian Defence Force would also enforce these security measures by engaging in interdictions. (7) The provision of this information was designed to enhance the effectiveness of civil and military maritime surveillance, particularly in protecting offshore oil and gas facilities from terrorism. (8)
Australia's unprecedented assertion of authority over vessels at such distance from its coast, particularly the claim of authority to interdict vessels over which Australia has no jurisdiction, raised serious concerns about the legality of the AMIS under international law. (9) As a result, Australia reformulated the AMIS so that ships will now be requested to provide information on a wholly voluntary basis and the AMIS will be based on cooperative international arrangements, particularly with neighbouring states. (10) Australia has emphasised that its actions under the AMIS will conform to existing international law. (11) This episode illustrates both the need to improve maritime security and the limitations faced by states under the current international legal regime.
The AMIS, as originally formulated, reflected the steps that Australia wished to take in order to enhance its maritime security. However, the questionable legality of the AMIS and its unilateral nature means that Australia must (or, at least, should) explore other avenues to improve its maritime security in conformity with international law. This article addresses this issue by considering the following questions: what is Australia permitted to do? What are the legal limitations on those actions? What gaps remain and how might they be overcome? The existing legal parameters demonstrate the limits imposed on Australia (as well as other states with comparable concerns) and reveal the remaining gaps in the international law regime. (12) These inadequacies cannot simply be addressed by entering into another treaty as they are indicative of deficiencies in the very nature of the law of the sea. The difficulties faced in endeavouring to protect maritime security--the gaps in the existing legal regime--are a result of the framework of the law of the sea and its ongoing emphasis on the predominant position of the flag state and the protection of the long-entrenched freedom of navigation. It is argued here that it is only when exclusive interests in flag state control and inclusive interests in the freedom of navigation are reconceived to account for a common interest in enhancing maritime security that weaknesses in the existing legal regime may be overcome.
To explore these inadequacies, this article first provides a brief overview of the traditional framework of the law of the sea, particularly as it is relevant to maritime security. Such an analysis demonstrates the emphasis placed on the freedom of navigation and flag state authority. The ensuing sections then examine the major legal developments relevant to maritime security since September 11, 2001 and analyse the limits imposed on Australia in the operation of these instruments and agreements. This discussion reveals that it is the traditional construct of the law of the sea, and the inability of states to conceive of maritime security as a shared interest to prevail over exclusive interests in the sanctity of flag states, which undermines Australia's efforts to ensure its maritime security. It is proposed that the traditional construct of the law of the sea needs to be re-examined if efforts at improving maritime security are to succeed.
II THE BALANCE OF STATES' INTERESTS IN DIFFERENT MARITIME ZONES
Historically, the oceans have been divided between two legal regimes: the territorial sea--a narrow belt of waters closest to land over which states exercise sovereignty; and the high seas--the waters beyond the territorial sea over which no state may exercise sovereignty. (13) This legal construct controlled the uses of the oceans for well over three centuries. It was only after World War II that this dichotomist approach to the law of the sea was challenged, as improvements in technology permitted the development of increasingly sophisticated fishing fleets and also led to the discovery of important natural resources in the seabed. (14) These economic interests prompted states to claim rights over ocean space that had previously been regarded as the high seas. The strong state interests in protecting rights in high seas areas influenced the recognition of authority over both the continental shelf and those areas that ultimately became the EEZ. This balance of rights and duties in the territorial sea, the continental shelf and EEZ, and the high seas is examined in this Part, with particular regard to security interests in each of these maritime zones and the varying rights and obligations of states in these areas.
A The Freedoms of the High Seas
At the start of the 17th century, Dutch jurist and diplomat Hugo Grotius argued that the oceans ought to be open to all users rather than placed under the dominion or sovereignty of a small number of states. (15) Grotius advocated the principle of mare liberum--the freedom of the seas--in order to promote the idea that all states shared an interest in using the oceans for the transportation of goods and people across the globe and to fish freely in areas beyond their territorial seas. (16) While there was initially some resistance to Grotius' position, (17) recognition of the common interests in utilising ocean space, as well as the physical limitations involved in policing maritime areas in a manner comparable to policing land territory, (18) resulted in a widespread and enduring endorsement of mare liberum. (19)
The freedoms of the high seas that are generally accepted are the freedoms of navigation, fishing, overflight, scientific research, construction of artificial islands, and the laying of cables and pipelines. (20) There has not been an exhaustive listing of high seas freedoms, (21) and a variety of military activities are typically regarded as other freedoms of the high seas. (22) For example, in the 1950s, the United States justified the testing of nuclear weapons on the high seas by reference to mare liberum, arguing that the only restriction on states' activities on the high seas was one of reasonable regard to the rights of other users. (23) This example illustrates how the freedoms of the high seas have been used to support claims that promote security interests.
Rather than exerting sovereignty over the high seas, each state instead has jurisdiction over the vessels that bear the flag of that state. A ship is to sail under the flag of only one state, (24) and that state sets the conditions for the grant of nationality to ships and for the right to fly their flag. (25) A vessel is then subject to the exclusive jurisdiction of the state to which it is flagged, with any exception limited to those expressly provided for by treaty. (26) Warships and ships owned or operated by a state and used only for governmental non-commercial service are entitled to complete immunity from the jurisdiction of any state besides that of the flag state when on the high seas. (27) These exclusive rights of the flag state stand in contrast to the emphasis on inclusive interests that is otherwise a hallmark of the high seas legal regime.
Given the exclusive jurisdiction accorded to flag states and the inclusive interests in maintaining the freedoms of the high seas, there are only limited instances in which states may exercise any kind of law enforcement jurisdiction over vessels not bearing their flags (referred to here as 'foreign vessels'). The limitations most relevant to security issues are the right of visit and the right of hot pursuit. (28) The right of visit involves a warship sending a boat under the command of an officer to a foreign vessel and checking its documents. (29) If suspicion remains, the foreign vessel may then be boarded for further examination. Warships and military aircraft are only justified in visiting and boarding a foreign vessel on the high seas when there are reasonable grounds for suspecting that the foreign vessel is engaged in piracy, the slave trade or unauthorised broadcasting activities; or when the vessel is without nationality or is the same nationality of the warship, even though it may be flying a foreign flag or refusing to show its flag. (30) The right of visit is deferential to flag state authority, as it provides only for the enforcement of designated prescriptions as permitted under international treaties with respect to vessels that are not accorded immunity. (31)
Another instance in which a state may assert jurisdiction against a foreign vessel on the high seas is when exercising the right of hot pursuit. (32) The right is premised on the coastal state beginning the pursuit of a foreign vessel in one of its maritime zones when the competent authorities of the coastal state have good reason to believe that the ship has violated the laws and regulations of that particular zone. (33) As Poulantzas explains, '[t]he right of hot pursuit--an exception to the freedom of the high seas--is at the same time a right of the littoral State established for the effective protection of areas under its sovereignty or jurisdiction'. (34) The right of hot pursuit is therefore a limited derogation from the freedom of navigation. It is associated with the rights accorded to coastal states over their maritime zones, as the pursuit must be commenced while the foreign ship or one of its boats is within the waters of the pursuing state, (35) and may only be continued on the high seas if the pursuit has not been interrupted. (36) Framed in this way, the right of hot pursuit is completely consistent with the emphasis placed on the exclusive control of the flag state and mare liberum.
The freedoms of the high seas therefore accord to all states a wide scope for action, including the ability to conduct a variety of military activities provided that those activities are undertaken with due regard to the rights of other vessels. As the high seas are open to all states, the only authority exercised by states in these ocean areas is over vessels bearing their flag. The sanctity of the flag state's control over its vessels is evident in the limited, and carefully prescribed, instances in which other states may pursue, stop and board foreign vessels. The emphasis on community interests in maintaining freedoms of the high seas has influenced subsequent claims to ocean areas. This focus, combined with the concomitant exclusive control of vessels in these waters, is what currently constrains efforts to develop an effective legal regime to confront threats to maritime security.
B Sovereignty over Territorial Seas
In contrast to the high seas--on which all states share the associated freedoms--the territorial sea is the belt of water, extending up to 12 nautical miles, adjacent to a coastal state and over which that state exercises sovereignty. (37) In many respects, the rights of the coastal state over its territorial sea are comparable to those enjoyed over its land territory, particularly with regard to rights to enact and enforce legislation in this maritime area. Most relevant for present purposes is that a state may exercise criminal jurisdiction over foreign vessels in its territorial sea 'if the consequences of the crime extend to the coastal State' or 'if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea'. (38) Coastal state authority to proscribe acts of maritime terrorism may come into play as 'it may be conspiracy to commit a terrorist act and preparatory steps towards such an act may be criminal matters, the consequences of which might extend to the coastal State, or disturb its peace or good order'. (39)
The main limitation on the coastal state's sovereignty over its territorial sea is that ships of all states enjoy the right of innocent passage through these waters. (40) Article 19 of UNCLOS provides that passage will be considered innocent if it is not prejudicial to the peace, good order or security of the coastal state. (41) The article sets out a number of activities that could be considered prejudicial to the peace, good order or security of the state, and its final clause sets a low threshold for the entire range of activities by stipulating that any activity 'not...
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