Maritime Security Partnerships (2008) / Chapter Skim
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Appendix C: The International Legal Framework
Appendix C: The International Legal Framework
Pages 164-191
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From page 164... ...
The Structure of Maritime Governance: Restraints or Empowerment? A stark reminder of the crucial significance of the legal parameters applicable to MSP is provided by a United Nations report that notes, succinctly, "any measures taken to prevent terrorist acts against shipping, offshore installations and other maritime interests must be in conformity with international law, including UNCLOS." Considering the importance that states in general ascribe to the United Nations Convention on the Law of the Sea (UNCLOS)
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From page 165... ...
, Art. 110 (on boarding of foreign flag vessels on the high seas without the consent of the flag states)
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From page 166... ...
13 Indeed, as a rule, they are not intended to change applicable international legal rules, nor have they incidentally brought about such changes. See, for example, the preambular sentence of Principle 4 of PSI Statement of Interdiction Principles, which expressly requires that interdiction efforts be consistent with participating states' "obligations under international law and frameworks."
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From page 167... ...
But, such arrangements will normally not be feasible unless they are founded on a solid multilateral legal basis. The coalition-of-the-willing model à la PSI (which, for example, expressly disavows any intention to change traditional international law regarding the boarding of foreign flag vessels)
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From page 168... ...
This is true in particular of the International Maritime Organization (IMO) , the United Nations Food and Agriculture Organization in relation to fisheries conservation and management (monitoring of fishing vessels)
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From page 169... ...
International Legal Implications of the Implementation of Key MDA-related Objectives The implementation or operationalization of specific MDA-related objectives essential to making MSP effective will raise a number of international legal issues. This is notably true for proposals to enhance cargo and container security; to raise the situational awareness of port and coastal states regarding vessels of interest by improving global vessel tracking capabilities; to expand port and coastal states' rights to access or right to vessel-related information; and to facilitate the sharing of maritime information, assisted by global vessel/port databases, and so on.
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From page 170... ...
6) defines "authorized economic operator" as "a party involved in the international movement of goods in whatever function that has been approved by or on behalf of the national Customs administration as complying with WCO or equivalent supply chain security standards." 24 See Art.
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From page 171... ...
30 Specific Observations Cargo and container security measures might be perceived as disproportionately benefiting the United States, and their propagation in the context of maritime security partnerships is therefore regarded as impolitic. But the very fact that the IMO, the WCO, other international organizations, and the European Community31 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.
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From page 172... ...
Given that the present study's focus is MSP involving the traditional international maritime community -- that is, navies, the maritime law enforcement community, and the shipping and fishing industries -- and consistent with the emerging division of labor among international organizations,33 only those shoreside segments of supply chain security that are located within or tied to the port of departure itself 34 are discussed in this appendix. In sum, two cargo and container security measures are directly and to a large degree associated with MDA, yet also best handled by agencies traditionally concerned with the security of vessels and ports: • The routine provision of cargo/container information to the destination state before the cargo or container is loaded on the vessel in the foreign port and • Outbound security inspections of cargo and containers at the request of the destination state.
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From page 173... ...
concerned. Viewed from an international 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 36 This requirement is effective from July 1, 2009, and applies to containerized cargo only.
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From page 174... ...
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 obligations apply to vessels coming from ports outside the EC and carrying dangerous or polluting goods.43 The information to be communicated to the port state is of 39 In an international legal sense, "port state" connotes a state that may have international jurisdiction over a foreign flag vessel on account of the vessel's declared intention to (voluntarily)
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From page 175... ...
2.3. 49 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.
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From page 176... ...
) 53 within a coastal state's 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.
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From page 177... ...
57 Limited though a coastal state's legal authority might be in obtaining information 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 Identification System (AIS)
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From page 178... ...
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 62 IMO's Web site claims that "the 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)
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From page 179... ...
This database involves all states participating 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, seafarers' well-being, fisheries protection, and maritime security.
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From page 180... ...
By virtue of general international law as well as maritime-security-specific special legislation -- namely, SOLAS Chapter XI-2 -- port 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: • 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 operational requirements, port authorities will have access to the vessel's continuous synopsis record (CSR)
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From page 181... ...
However, this right presupposes that, as a matter of international law as set out in various provisions of UNCLOS, the coastal state's law and regulations on customs, fiscal, sanitary, and immigration matters; fisheries; and marine environmental protection actually do apply to the maritime zone in which the alleged infraction occurred and are enforceable given the location of the vessel when challenged by the coastal state's law enforcement agency.73 Although the information 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.
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From page 182... ...
stakeholders to support efforts to explore, within the IMO, the possibility of lowering 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.
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From page 183... ...
Vessel Boarding: Interdiction The right to board foreign flag77 merchant ships78 is a critical component of any MDA-enhancing regime, because boarding directly serves the acquisition and verification of maritime-security-related information. From an international legal perspective, the boarding of foreign flag vessels that are in, bound for, or departing from a port or the internal waters of the boarding state is relatively unproblematic: A state's jurisdiction over foreign vessels in port or in its internal waters is, after all, "necessarily exclusive and absolute."79 The situation is different, however, when the vessel is simply passing through the state's territorial sea, transiting that or another state's EEZ, or navigating on the high seas proper.
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From page 184... ...
Leaving aside a state's boarding authority 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.
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From page 185... ...
Thus in accordance with the requirements of United Nations Security Council Resolution 1540, states must adopt and enforce laws that prohibit any nonstate actor from manufacturing, acquiring, possessing, developing, transporting, transferring, or using WMD or that prohibit their means of delivery, and so on. To the extent that a coastal state's criminal law implementing Security Council Resolution 1540 covers the maritime transport of WMD and their components through its territorial sea,89 a foreign flag carrier would be deemed to violate that state's laws, which might trigger the latter's enforcement jurisdiction, including the right to board.90 A coastal state's jurisdiction over foreign vessels further offshore -- that is, within the contiguous zone (CZ)
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From page 186... ...
Beyond these traditional legal bases, there exists no equivalent boarding authority under general international law 99 vis-à-vis vessels suspected of engag 93 See UNCLOS, Art. 220, paras.
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From page 187... ...
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.
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From page 188... ...
However, once again, the U.S.-led effort fell short of moving states toward acceptance of the principle of nonconsensual boarding in situations involving the maritime trafficking of WMD by nonstate actors. 105 Finally, the PSI -- which, unlike the 2005 SUA revisions and Security Council Resolution 1540, is not per se an international legislative initiative, nor as such capable of effecting international legal change -- expressly commits participating states to ensure that their interdiction efforts be "consistent with their obligations under international law and frameworks."106 The physical act of boarding is, of course, only a first step in the exercise by the boarding state of jurisdiction over the foreign flag vessel.
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From page 189... ...
An easing of existing international legal restrictions on foreign flag vessel boarding would serve as a deterrent. Moreover, it is not clear to what extent a coastal state can exercise criminal jurisdiction over a foreign flag vessel during innocent passage simply on the grounds that the vessel carries WMD materials, components, and so on, and thereby violates the coastal state's laws.
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From page 190... ...
There does not appear to be an easing of existing international legal restrictions on foreign flag vessel boarding. Boarding of foreign flag vessels in areas subject to limited or partial coastal 109 See, for example, Art.
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From page 191... ...
It would seem prudent to seek legal clarifications through consultations, in particular with the states that are parties to UNCLOS, as to whether: • A foreign flag vessel that does not have an AIS or an LRIT system on board provides reasonable grounds for questioning the vessel's ostensible or claimed nationality and registration and would therefore be subject to boarding on the high seas for the purpose of checking the vessel's documents; • A coastal state can exercise criminal jurisdiction on board a foreign flag vessel exercising innocent passage through the state's territorial sea112 if it carries WMD-related materials, people, etc. whose maritime transportation is subject to criminal sanctions in accordance with the Security Council resolution 1540; • A flag state whose vessel is reasonably suspected of engaging in or being part of a terrorist plot or otherwise being used or guided by terrorists must give its consent to boarding or, conversely, can be presumed to give its consent; or • A vessel navigating in the contiguous zone and suspected of trafficking in, for example, WMD components could be considered as violating the coastal state's customs laws within the meaning of UNCLOS, Art.
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