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[Guilfoyle][2007][Jcsl][w] Wmd Psi

[Guilfoyle][2007][Jcsl][w] Wmd Psi

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 Journal of Conflict & Security Law
Oxford University Press 2007; all rights reserved.For permissions, please e-mail: journals.permissions@oxfordjournals.orgdoi:10.1093/jcsl/krm001......................................................................................
Maritime Interdiction of Weapons of Mass Destruction
Douglas Guilfoyle*
Abstract
This article examines current multilateral and bilateral efforts to interdict themaritime transport of weapons of mass destruction (WMD), their delivery systemsand related ‘precursors’ used in their construction. The US-led ProliferationSecurity Initiative (PSI) has focused international attention on the proliferation of WMD, including proliferation by maritime transport. While the PSI’s Statementof Interdiction Principles focuses on existing bases of jurisdiction under domesticand international law, the interdiction framework within which it operates hasnow been broadened. New legal bases for maritime WMD interdiction include USbilateralshipboardingagreements,the2005ProtocoltotheSuppressionofUnlawfulActs Against the Safety of Maritime Navigation Convention and, potentially, UNSecurity Council Resolution 1540 if it affects the law of the territorial sea. Startingfrom a consideration of the existing framework of maritime jurisdiction, this articleexamines the history and likely effectiveness of these new measures, including thecreation of new crimes of maritime proliferation.
1. Introduction
The majority of the world’s international trade moves across the surface of theoceans.
1
The oceans form a major highway for legal trade, illegal traffic, andtrade in materiel which, while not necessarily illegal, may threaten internationalpeace and security. There is, in particular, a long history of efforts to control drugsmuggling by sea, and it is unsurprising that emerging approaches towards vesselsengaged in WMD proliferation by sea borrow legal strategies from these earlierlaw-enforcement efforts.
2
One particular tool of maritime law enforcement isstopping and searching a vessel at sea, and potentially seizing cargo and arresting
Trinity Hall, University of Cambridge, UK. E-mail: douglas.guilfoyle@cantab.net.I would like to thank Professors James Crawford and Christine Gray, Captain JAshley Roach (Ret.), as well as the anonymous referees, for their comments on anearlier version of this article. Any errors or omissions remain my own.
1
United Nations Division for Ocean Affairs and the Law of the Sea,
Oceans: The Sourceof Life
(2002), 13. Available at:
<
http://www.un.org/Depts/los/convention
agreements/convention
20years/oceanssourceoflife.pdf.
>
2
M Byers, ‘Policing the High Seas: The Proliferation Security Initiative’, (2004) 98
AJIL
526, 538–539; M Becker, ‘The Shifting Order of the Oceans: Freedom of Navigationand the Interdiction of Ships at Sea’, (2005) 46
Harvard International Law Journal 
131, 180–181; F Spadi, ‘‘Bolstering the Proliferation Security Initiative at Sea: AComparative Analysis of Ship-boarding as a Bilateral and Multilateral ImplementingMechanism’’ (2006) 75
Nordic Journal of International Law
249.
....................................................................................................
 Journal of Conflict & Security Law
(2007), Vol. 12 No. 1, 1–36
 
2
Douglas Guilfoyle
persons aboard (‘interdiction’). This article will examine current multilateraland bilateral efforts to interdict the trade in nuclear, radiological, chemical andbiologicalweaponsofmassdestruction(‘WMD’),related‘precursors’usedintheirconstruction and their potential delivery systems (collectively, ‘WMD materiel’).The jurisdictional issues in suppressing seaborne trade in WMD materiel arenot straightforward. The majority of the oceans remain international waters,where a vessel is subject only to the ‘exclusive’ jurisdiction of the state whereit is either registered or whose flag it is otherwise entitled to fly by nationallaw (‘the flag State’).
3
There are also residual situations within a coastal state’sExclusive Economic Zone (EEZ) or contiguous zone where only flag jurisdictionwill apply to a vessel. Consequently,efforts to suppress illicit trade usually involvetreaty arrangements allowing a coastal state to enforce national criminal law byinterdicting a foreign vessel subject to flag-state jurisdiction.Some current state practice in interdiction does follow this treaty-based law-enforcement model. There are new US bilateral treaties closely modelled on druginterdiction treaties and a new Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (‘SUA Protocol 2005’)was concluded at the International Maritime Organisation (IMO) in October2005 and is now open for signature.
4
Also relevant for present purposes, however,are the efforts of the Proliferation Security Initiative (‘PSI’) and the UN SecurityCouncil, which are not premised upon establishing new treaties. While the PSIseeks to utilise existing laws to effect interdictions, Security Council Resolution1540 imposes new obligations upon states to take steps to suppress transfers of WMD materiel to non-state actors. Though Resolution 1540, at China’s behest,
5
does not expressly contemplate interdiction, it is not without consequences formaritime jurisdiction.OnedifferencebetweenWMDinterdiction,andamoreestablishedfieldsuchasnarcoticsinterdiction,istheundoubtedunderlyingillegalityofdrugtrafficking.Asthe 172 state parties to the UN Narcotics Convention have agreed, such traffic isan international crime and that its ‘eradication
. . .
is a collective responsibility’,
6
seizing drugs as evidence of a crime is uncontroversial. The ‘criminalisation’of trade in WMD materiel is less obviously complete. A largely unexploredconsequenceof this is the potentialimpact of interdictionson third-partystates. IsthereanyinternationalwrongcommittedwhenstateAboardsaflagvesselofstate
3
Arts. 91 and 92,
United Nations Convention on the Law of the Sea
, 1982, (1994) 1833UNTS 3 [hereinafter UNCLOS].
4
See:
ConventionfortheSuppressionofUnlawfulActsagainsttheSafetyofMaritimeNav-igation
, 1988 (1988) 27 ILM 672 [hereinafter, SUA Convention]; and
Protocol of 2005to the Convention for the Suppression of Unlawful Acts Against the Safety of MaritimeNavigation
, IMO Doc LEG/CONF.15/21,1 November2005 [hereinafter, SUA Protocol2005]. Available at
<
http://www.state.gov/documents/organisation/58426.pdf 
>
.
5
S/PV.4950, 22 April 2004, 6.
6
Preamble,
United Nations Convention against Illicit Traffic in Narcotic Drugs andPsychotropic Substances
, 1988, (1990) 1582 UNTS 165 [hereinafter, UN NarcoticsConvention].
 
Maritime Interdiction of WMD
3B(withitsconsent)andremoveslegallypurchasedWMDmaterielboundforstateC? Absent a relevant treaty obligation, there is no customary law or prohibitionon possessing WMD; and the existing WMD treaties, while they may containobligations to reduce or destroy weapon stockpiles, do not criminalise trade inWMD materiel.
7
Resolution 1540 and the SUA Protocol 2005 constitute stepstowards criminalisation, and the extent to which they justify WMD interdictionwill be considered.This article will proceed by first addressing issues of enforcement andprescriptive jurisdiction, the heads of maritime jurisdiction and jurisdiction overvessels. It will then briefly examine the recent history of counter-proliferationefforts,includingshippinginterdictionpractice,declarationsof‘principles’andthepassage of Resolution1540. The new WMD interdictiontreaties, being at present,US bilateral treaties and the SUA Protocol 2005, will then be discussed. Thearticle will conclude with an examination of the practical and state responsibilityproblems that may arise.
2. State Jurisdiction Over Vessels at Sea: Criminal Law and the Lawof the Flag
The extra-territorial exercise by states of jurisdiction over areas of the ocean andvessels atsearequiresabriefexplanation.Internationallawdistinguishesbetweenthe scope of prescriptive and enforcement jurisdiction of national criminal law,ordinarily the latter is regarded as absolutely territorially constrained, while theformer may extend extra-territorially in certain cases. A state may prohibit atleast certain classes of extra-territorial conduct even where it has no authorityto enforce that law outside its territory; prescription being logically independentof enforcement.
8
This may give rise to the concurrent jurisdiction of states overthe same conduct, but having to resolve which of two or more states will actuallyexercise jurisdiction is a more desirable outcome than situations where no statehas jurisdiction.States may assert prescriptive jurisdiction over the extra-territorial conduct of their nationals and, in at least some cases, over extra-territorial criminal conductaffectingtheir nationals. Thus, where a citizen of state A murders a citizen of stateB in the territory of state B, both states may have prescriptive jurisdiction overthe offender’s conduct but only state B will have the power to arrest him while heremains in state B’s territory. As the Permanent Court said in the
Lotus Case
:Far from laying down a general prohibition to the effect that states may notextend the application of their laws and the jurisdiction of their courts to
7
RWedgwood,‘TheFallofSaddamHussein:SecurityCouncilMandatesandPreemptiveSelf-Defense’, (2003) 97
AJIL
576, 579 and 585.
8
R O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’, (2004) 2
JICJ 
735,
 passim
and 755.

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