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Policing the High Seas: The Proliferation Security Initiative

Published online by Cambridge University Press:  27 February 2017

Michael Byers
Michael Byers*
Affiliation:
University of British Columbia; Duke University
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American Journal of International Law , Volume 98 , Issue 3 , July 2004 , pp. 526 - 545
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Copyright © American Society of International Law 2004

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References

1 Shanker, Thom, Threats and Responses: Arms Smuggling; Scud Missiles Found on Ship of North Korea, N.Y. Times, Dec. 11, 2002, at A1 Google Scholar; see also Ricks, Thomas E. & Slevin, Peter, Spain and U.S. Seize N. Korean Missiles; Scuds Were on Ship Bound for Yemen, Wash. Post, Dec. 11, 2002, at A1 Google Scholar.

2 Sanger, David E. & Shanker, Thom, Threats and Responses: War Materiel; Reluctant U.S. Gives Assent for Missiles to Go to Yemen, N.Y. Times, Dec. 12, 2002, at A1 Google Scholar.

3 Id.

4 Id. See also Press Briefing, White House (Dec. 11, 2002), at <http://www.whitehouse.gov/news/releases/2002/12/20021211–5.html>. In 1992, the administration of George H. W. Bush took a similar position with respect to two North Korean vessels carrying Scud missiles to Iran. See Tyler, Patrick E., U.S. Weighs Boarding Korea Arms Ships, N.Y. Times, Mar. 6, 1992, at A10 Google Scholar.

5 The right of “enquȇte du pavilion” (or “right to approach”) is today normally limited to a verification of the ship’s papers against its outwardly manifested identity and nationality. See United Nations Convention on the Law of the Sea, Art. 110, opened for signature Dec. 10, 1982, 1833 UNTS 397 (1994) [hereinafter LOS Convention]. The Convention entered into force on November 16, 1994. Following the incident, an unidentified State Department official was reported as saying that the So San “had not been flying colors or showing proper identification” and that “under well-accepted principles of customary international law, that meant it was a stateless vessel, therefore, not under the protection of any state and subject to seizure by any navy that chose to do so.” He added, however, that in the “final hours before the Spaniards actually conducted their non-permissive boarding of the ship, there was an indication mat the master had attempted to declare it to be a Cambodian vessel. And accordingly, we went to the government of Cambodia to seek boarding authority, which they, as the purported flag state, could give. And they did acknowledge that we would be allowed to board.” Dep’t of State Briefing, Proliferation Security Initiative, Federal News Service, Sept. 9, 2003, available at <http://www.fnsg.com/>.

6 Missile Technology Control Regime, MTCR Partners, at <http://www.mtcr.info/english/partners.html>.

7 Mar. 10, 1988, 1678 UNTS 221, 27 ILM 668 (1988), reprinted in United Nations, International Instruments Related to the Prevention and Suppression of International Terrorism, UN Sales No. 01.V.3 (2001). UN Conventions on terrorism are also available online at <http://untreaty.un.org/English/Terrorism.asp>; see also Status of Conventions—Complete List, at <http://www.imo.org/home.asp>.

8 LOS Convention, supra note 5, Art. 110. See id., Art. 58, para. 2 (incorporating by reference Art. 110 and other relevant provisions of the high seas regime into the regime of the exclusive economic zone). A list of parties to the LOS Convention can be found at <http://www.un.org/Depts/los/convention_agreements/convention_agreements.htm>

9 S.S. Lotus Case (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 9, at 25 (Sept. 7). Further evidence of the principle may be found in Article 92(1) of the LOS Convention, supra note 5: “Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.” Article 92 repeats verbatim the text of Article 6 of the Geneva Convention on the High Seas, Apr. 29, 1958, 13 UST 2312, 450 UNTS 82, also available at <http://fletcher.tufts.edu/multi/texts/BH364.txt>.

10 LOS Convention, supra note 5, Art. 110.

11 See discussion, infra pp. 538–40.

12 See, e.g., Counter-Proliferation: Practising to Provoke, Economist, Sept. 20, 2003, at 41.

13 See Hailbronner, Kay, Freedom of the Air and the Convention on the Law of the Sea, 77 AJIL 490 (1983)CrossRefGoogle Scholar; Grief, Nicholas, Public International Law in the Airspace of the High Seas 7–16, 46–63 (1994)Google Scholar.

14 Sanger & Shanker, supra note 2.

15 See Testimony on the Military Implications of the United Nations Convention on the Law of the Sea, U.S. Senate Committee on Armed Services Hearing, Apr. 8, 2004, available at <http://armed-services.senate.gov/>; Written Statement of William H. Taft IV, Legal Adviser, Dep’t of State Before the House International Relations Committee on May 12, 2004, Concerning Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention, U.S. House of Representatives Committee on International Relations Hearing, May 12, 2004, available at <http://wwwc.house.gov/international_relations/108/taf051204.htm>.

16 Press Release, White House, Principles for the Proliferation Security Initiative (Sept. 4, 2003), available at <http://www.state.gov/t/np/rls/prsrl/23809.htm>. See Dep’t of State, Proliferation Security Initiative: Statement of Interdiction Principles, Sept. 4, 2003, available at <http://www.state.gov/t/np/rls/fs/23764.htm>. For a report of official acknowledgment of the link between the release of the So San and PSI, see Kralev, Nicholas, U.S. Seeks Asian Aid for Ship Searches, Wash. Times, June 18, 2003, at A1 Google Scholar.

17 See Weisman, Steven R., U.S. To Send Signal To North Koreans In Naval Exercise, N.Y. Times, Aug. 18, 2003, at A1 Google Scholar; Boucher, Richard, State Department Spokesman, Taken Questions, Proliferation Security Initiative—Paris Meeting of Core Participants, September 3–4, 2003 (Sept. 2, 2003), available at <http://www.state.gov/r/pa/prs/ps/2003/23673.htm>>Google Scholar; Remarks by the President on Weapons of Mass Destruction Proliferation, Fort Lesley J. McNair - National Defense University, Washington, D.C., Feb. 11, 2004, available at <http://www.whitehouse.gov/news/releases/2004/02/2004021 l-4.html>; Russia Joins Washington’s WMD-Security Initiative, Orlando Sentinel (Fla.), June 1, 2004, A8.

18 See Proliferation Security Initiative, Chairman’s Statement at the Fifth Meeting, Mar. 5, 2004, available, at <http://www.state.gOv/t/np/rls/other/30960pf.htm>.

19 Id.

20 See Proliferation Security Initiative: Statement of Interdiction Principles, supra note 16.

21 Id.

22 See Proliferation Security Initiative, Chairman’s Statement at the Fifth Meeting, supra note 18.

23 The New Multilateralism, Wall St. J., Jan. 8, 2004, at A22 Google Scholar; Proliferation Security Initiative: Libyan Case Crowns First Year’s Achievements, Nis Export Control Observer 25, 26 (Dec. 2003/Jan. 2004), available at <http://cns.miis.edu/pubs/nisexcon/>.

24 Id.

25 See infra note 36.

26 Wright, Robin, Ship Incident May Have Swayed Libya; Centrifuges Intercepted in September, Wash. Post, Jan 1, 2004, at A18 Google Scholar; U.S. Seized Shipload of Nuclear Equipment Bound for Libya in October, N.Y. Times Jan. 1, 2004, at A7 Google Scholar. Cf Hersh, Seymour M., The Deal Why Is Washington Going Easy on Pakistan’s Nuclear Black Marketers? New Yorker, Mar. 8, 2004, at 32 Google Scholar (reporting that Libya itself may have informed Britain and the United States of the shipment); Broad, William J. & Sanger, David E., After Ending Arms Program, Libya Receives a Surprise, N.Y. Times, May 29, 2004, at A6 Google Scholar (reporting that the U.S.- led team conducting the seizure missed one container of centrifuge components, which was subsequendy handed over by Libya).

27 Agreement for the Implementation of the Provisions of the UN 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, Art. 21 (1), UN Doc. A/CONF.164/37, 34 ILM 1542, at 1563 (1995), available at <http://www.un.org/Depts/los/convention_agreements/convention_overview_fish_stocks.htm>. Article 21 (5) allows the inspecting state to secure evidence where “there are clear grounds for believing that a vessel has engaged in any activity contrary to” those measures, and, if a flag state fails to respond or take action once being notified of an apparent violation. Article 21 (8) allows the inspecting state, “where appropriate,” to bring the offending vessel to port. See discussion, infra pp. 536–38.

28 See discussion, infra pp. 538–40. There is also a recent bilateral treaty allowing for the high seas interdiction of vessels suspected of carrying illegal migrants. See Agreement Between the Government of the United States of America and the Government of the Dominican Republic Concerning Maritime Migration Law Enforcement, May 20, 2003, 2003 UST lexis 32. An earlier agreement between the United States and Haiti, to similar effect, was terminated by Jean- Bertrand Aristide during his first presidency. See Exchange of Notes, United States-Haiti, Sept. 23, 1981, 33 UST 3559, 1981 UST lexis 40.

29 See Press, Associated, Deal Lets U.S. Search Ships, N.Y. Times, Feb. 14, 2004, at A4 Google Scholar.

30 Apparently because of concerns expressed by some European governments, the agreement does not extend to bareboat chartered vessels registered in the United States or Liberia by the owner but also registered in another state by the charterer. Agreement Between the Government of the United States of America and the Government of the Republic of Liberia Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, Feb. 11, 2004, Art. 3, available at <http://www.state.gov/t/np/trty/32403.htm>. Any seized cargo is to be disposed of by the flag state in accordance with its national laws, but may be transferred to the other party in a manner that reflects the latter’s “contribution . . . to facilitating or effecting the forfeiture of such assets or proceeds.” Id., Art. 12.

31 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, May 12, 2004, available at <http://www.state.gov/t/np/trty/32858.htm>.

32 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, supra note 7. See also Legal Committee of the International Maritime Organization, 87th session: 13 to 17 October 2003, summary of work available at <http://www.imo.org/home.asp>; Proliferation Security Initiative, Chairman’s Statement at the Fifth Meeting, supra note 18.

33 Richardson, Michael, It’s Full Steam Ahead in Hunt for Terror Arms Shipments, Straits Times (Sing.), Oct. 25, 2003 Google Scholar, available at lexis, News Library, Individual Publications file. A similar approach is already used in some bilateral treaties directed at drug smuggling. See discussion, infra pp. 538–40.

34 See discussion, supra p. 529.

35 See Former Legal Advisers’ Letter on Accession to the Law of the Sea Convention, 98 AJIL 307 (2004)Google Scholar, and hearings cited at id., n.1.

36 On port state rights, see Churchill, R.R. & Lowe, A. V., The Law of the Sea 65–69 (3d ed. 1999)Google Scholar (“By entering foreign ports and other internal waters, ships put themselves within the territorial jurisdiction of the coastal State. Accordingly, that State is entitled to enforce its laws against the ship and those on board, subject to the normal rules concerning sovereign and diplomatic immunities, which arise chiefly in the case of warships.”) See also McDorman, Ted L., Regional Port State Control Agreements: Some Issues of International Law, 5 Ocean & Coastal L.J. 207 (2000)Google Scholar; Doris, König, The Enforcement of the International Law of the Sea by Coastal and Port States, 62 Zeitschrift Für Auslándisches Öffentuches Recht und Völkerrecht 1 (2002)Google Scholar.

37 See generally Jochen Abr., Frowein & Krisch, Nico, Introduction to Chapter VII, in The Charter of the United Nations: A Commentary 701–16 (Simma, Bruno et al. eds., 2d ed. 2002)Google Scholar.

38 SC Res. 687, UN Doc. S/RES/687 (1991).

39 SC Res. 1172, UN Doc. S/RES/1172 (1998).

40 SC Res. 1373, para. 4, UN Doc. S/RES/1373 (2001).

41 See UN Charter Art. 27, para. 3.

42 See McManus, Doyle, U.S. Finds It’s Lonely at the Top, L.A. Times, Apr. 13, 2003, at 1 Google Scholar; Sciolino, Elaine, A Nation at War: Estranged Allies; Europe Assesses Damage to Western Relationships and Takes Steps to Rebuild, N.Y. Times, Apr. 2, 2003, at B12 Google Scholar.

43 See Medeiros, Evan S. & Taylor Fravel, M., China’s New Diplomacy, Foreign Aff., Nov./Dec. 2003, at 22 CrossRefGoogle Scholar.

44 See Byers, Michael, Terrorism, the Use of Force and International Law after 11 September, 51 Int’l & Comp. L.Q. 401 (2002)CrossRefGoogle Scholar, reprinted in 16 Int’l Rel. 155 (2002).

45 President Bush, George W., Address to the United Nations General Assembly (Sept 23, 2003), available at <http://www.whitehouse.gov/news/releases/2003/09/20030923–4.html>>Google Scholar. On February 11, 2004, President Bush renewed his call for prompt passage of such a resolution. See Remarks by the President on Weapons of Mass Destruction Proliferation, supra note 17.

46 SC Res. 1540, UN Doc. S/RES/1540 (2004).

47 Id., para. 3(c).

48 Id., para. 10.

49 Jennings, R. Y., The Caroline and McLeod Cases, 32 AJIL 82, 89, 91–92 (1938)Google Scholar.

50 Id. at 82–84.

51 See discussion at note 8 supra.

52 Churchill & Lowe, supra note 36, at 217. The dispute was eventually settled. Agreement to Resolve Claims in the Case of The Steamer “Virginius,” Feb. 27, 1875, U.S.-Spain, reprinted in 2 Treaties, Conventions, International Acts, Protocols and Agreements Between the United States and Other Powers 1664–65 (William M. Malloy ed., 1910).

53 Momtaz, D., La Haute Mer, in Traité du Nouveau Droit de la Mer 337, 368 (René-Jean, Dupuy & Vignes, Daniel eds., 1985)Google Scholar.

54 Robert C. F., Reuland, Interference with Non-National Ships on the High Seas: Peacetime Exceptions to the Exclusivity Rule of Flag-State Jurisdiction, 22 Vand. J. Transnat’l L. 1161, 1218–19 (1989)Google Scholar.

55 Churchill & Lowe, supra note 36, at 217.

56 For a rule of customary international law to develop or change, a large majority of states must express their consent, either expressly or tacitly, through their behavior, which constitutes state practice as well as, potentially and crucially, evidence of their views as to the existence or desirability of legal obligation, i.e., opinio juris. See generally North Sea Continental Shelf Cases (F.R.G./Den.; F.R.G./Neth.), 1969 ICJ Rep. 3, 41, para. 71, (Feb. 20); Akehurst, Michael, Custom as a Source of International Law, 47 Brit. Y.B. Int’l L. 1 (1974–75)Google Scholar; Danilenko, G. M., Law-Making in the International Community (1993)Google Scholar.

57 See Churchill & Lowe, supra note 36, at 217; Geoffrey Marston (ed.), United Kingdom Materials on International Law 1982, 53 Brit. Y. B. Int’l L. 337, 469 (1982)Google Scholar.

58 See Politakis, George P., Modern Aspects of the Laws of Naval Warfare and Maritime Neutrality 529–75 (1998)Google Scholar; San, Remo Manual on International Law Applicable to Armed Conflicts at Sea, 215–16 (Louise, Doswald-Beck ed., 1995)Google Scholar; Astley, John III & Schmitt, Michael N., The Law of the Sea and Naval Operation 42 A.F. L. Rev. 119, 138–47 (1997)Google Scholar.

59 See Chayes, Abram, Law and the Quarantine of Cuba, Foreign Aff., Apr. 1963, at 550, 554 CrossRefGoogle Scholar; Gardner, Richard N., Neither Bush nor the “ Jurisprudes,” 97 AJIL 585, 587 (2003)Google Scholar. Both Chayes and Gardner were involved in the development of the U .S. position—Chayes as State Department legal adviser, Gardner as deputy assistant secretary of state for international organization affairs.

60 See Wedgwood, Ruth, The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defense, 97 AJIL 576, 584–85 (2003)Google Scholar; Yoo, John, International Law and the War in Iraq, 97 AJIL 563, 571–73 (2003)Google Scholar.

61 See Horowitz, David, Israel Says 50 Tons of Seized Arms Were Meant for Palestinians, Irish Times, Jan. 5, 2002, at 13 Google Scholar; Silver, Eric, Israel Claims Seizure of Palestinian Arms Shipment, Independent, Jan. 5, 2002, at 14 Google Scholar. In May 2003, an Egyptian-flagged vessel was seized in the Mediterranean with rocket fuses and bomb-making components on board. See Dudkevitch, Margot et al., Navy Seizes Hizbullah Arms Boat to PA, Jerusalem Post, May 23, 2003, at 1A Google Scholar.

62 Address by Prime Minister Ariel Sharon Following the Seizing of the Ship Karina A, Eilat, Jan. 6, 2002, available at <http://www.embassyofisrael.org/articles/2002/January/2002010706.html>.

63 Dep’t of State, Daily Press Briefing, Jan. 4, 2002, available at <http://www.state.gov/r/pa/prs/dpb/2002/7046.htm>.

64 As the International Court of Justice said in the North Sea Continental Shelf Cases:

There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained.

North Sea Continental Shelf Cases, supra note 56, especially para. 77.

65 See Amerasinghe, C. F., Issues of Compensation for the Taking of Alien Property in the Light of Recent Cases and Practice, 41 Int’l & Comp. L.Q. 22, 30 (1992)Google Scholar; Robinson, Davis, Expropriation in the Restatement (Revised), 78 AJIL 176, 177–78 (1984)Google Scholar; Schachter, Oscar, Compensation for Expropriation, 78 AJIL 121, 126–27 (1984)Google Scholar; North Sea Continental Shelf Cases, supra note 56, especially paras. 75–78

66 See Byers, Michael, Custom, Power and the Power of Rules, 109–26 (1999)Google Scholar.

67 Grewe, Wilhelm G., The Epochs of International Law 555–56 (Byers, Michael, trans. & reviser, 2000)Google Scholar.

68 Id.

69 Id. at 557.

70 Id.

71 See Clarkson, Thomas, The History of the Rise, Progress, and Accomplishment of the Abolition of the African Slave Trade by the British Parliament (1808)Google Scholar.

72 Grewe, supra note 67, at 557.

73 Id. at 554. The need for any change in the law to be effected by way of treaty was confirmed by Sir William Scott (Lord Stowell) of the High Court of Admiralty in the Louis Case of 1817:

No authority can be found... which gives any right of visitation or interruption over the vessels and navigation of other states, on the high seas, except what the right of war gives to belligerents against neutrals If this right be imported into a state of peace, it must be done by convention.

Lloyd, Christopher, The Navy and the Slave Trade: The Suppression of the African Slave Trade in the Nineteenth Century 44 (1949)Google Scholar.

74 Grewe, supra note 67, at 558.

75 Id.

76 von Martitz, F., Das intemationale System zur Unterdrückung des afrikanischen Sklavenhandels in seinem heutigen Bestand, 1 Archiv des offentlichen Rechts 16, 54 ff. (1885)Google Scholar, cited in Grewe, supra note 67, at 558, n.14.

77 Von Martens, G.F., 3 Nouveau Recueil de Traités etc., 93 (1806–39)Google Scholar, cited in Grewe, supra note 67, at 558, n.12.

78 Grewe, supra note 67, at 560.

79 Id.

80 Martitz, supra note 76, cited in Grewe, supra note 67, at 558, n. 13.

81 Grewe, supra note 67, at 560.

82 See Soulsby, H. G., The Right of Search and the Slave Trade in Anglo-American Relations 1814–1862 (1933)Google Scholar; citations supra note 58.

83 Grewe, supra note 67, at 561.

84 Id.

85 Id. at 562.

86 See id. at 561; Treaty of Amity, Commerce, and Navigation (Jay Treaty) Art 20, Nov. 19, 1794, U.K-U.S., 8 Stat 116.

87 See Soulsby, supra note 82.

88 Grewe, supra note 67, at 564–65.

89 Id. at 565. On the right of “enquȇte du pavilion” today, see supra note 5.

90 Id. at 566. On the “Visitation Crisis,” see John, Bassett Moore, 2 Digest of International Law 914–51 (1906)Google Scholar; 3 Wharton, Francis, Digest of International Law 122–71 (2d ed., 1887)Google Scholar.

91 See Lloyd, supra note 73, at 174–75. Almost one century later, a right to visitation was included in Articles 13 and 22(1) (b) of the 1958 Geneva Convention on the High Seas, supra note 9, the preamble to which states that it is a codification of customary international law.

92 See LOS Convention, supra note 5, Arts. 3, 19–24, 37–54, 234, 236.

93 NAFO is the international agency that oversees voluntary fishing regulations for seventeen countries fishing outside Canada’s 200-nautical-mile exclusive economic zone. See generally <http://www.nafo.ca>.

94 See generally Peter G. G., Davies & Redgwell, Catherine, The International Legal Regulation of Straddling Fish Stocks, 67 Brit.Y.B. Int’l L. 199 (1996)Google Scholar.

95 Canada: Coastal Fisheries Protection Act as Amended in 1994 [received Royal Assent, May 12, 1994], reprinted in 33 ILM 1383 (1994)Google Scholar.

96 Id.

97 Tobin Moves on Fish “Pirates,” Globe & Mail (Toronto), May 11, 1994, at A1 Google Scholar.

98 EU Protests Fisheries Law, Fin. Post (Toronto), June 11, 1994, at 16 Google Scholar; Putting Pirate Fishing Boats on the Spot, Globe & Mail (Toronto) June 2, 1994, at A8 Google Scholar.

99 Norway Sides with Canada on Fishing Deal, Calgary Herald, Aug. 16, 1994, at A7 Google Scholar.

100 Showdown Nears on High-Seas Fishing, Fin. Post (Toronto), Aug. 13, 1994, at 8 Google Scholar; Tobin to Speak at UN on Overfishing, Globe & Mail (Toronto), Aug. 15, 1994, at A3 Google Scholar.

101 Norway Sides with Canada on Fishing Deal, supra note 99.

102 Carvel, John, Canada Arrests Spanish Captain as Fish War with Europe Looms, Guardian (London), Mar. 10, 1995, at 13 Google Scholar; Munchau, Wolfgang, EU Brands Seizure of Spanish Trawler an Act of Piracy, Times (London), Mar. 11, 1995, at 15 Google Scholar, available at lexis, News Library, Individual Publications file.

103 Munchau, supra note 102; Stewart, Edison, Canadians Seize Spanish Trawler, Toronto Star, Mar. 10, 1995, at A1 Google Scholar.

104 The Court eventually determined that it could not hear the case, as the result of Canada having modified its acceptance of compulsory jurisdiction shortly before the adoption of the 1994 legislation. See Fisheries Jurisdiction (Sp. v. Can.), Dec. 4, 1998, Gen. List No. 96, <http://212.153.43.18/icjwww/idocket/iec/iecframe.htm>.

105 Supra note 27. See generally Barston, R. P., United Nations Conference on Straddling and Highly Migratory Fish Stocks, 19 Marine Pol’y 159 (1995)CrossRefGoogle Scholar. To date, there are fifty-one parties to the Agreement, including Canada, the European Community, and the United States. See United Nations, Overview—Convention & Related Agreements, available at <http://www.un.org/Depts/los/convention_agreements/convention_overview_fish_stocks.htm>.

106 Canada-European Community: Agreed Minute on the Conservation and Management of Fish Stocks (Apr. 20, 1995), reprinted in 34 ILM 1260 (1995)Google Scholar.

107 Rehn, Alison, Scales of Justice, Courier Mail (Austl.), Aug. 23, 2003, Features, at 33 Google Scholar.

108 See Fuss, Charles M. Jr., Sea of Grass: The Maritime Drug War 1970–1990, 8 (1996)Google Scholar.

109 See Gilmore, William C., Narcotics Interdiction at Sea: UK-US Cooperation, 13 Marine Pol’y 218, 220–22 (1989)Google Scholar.

110 See Canty, Rachel, Limits of Coast Guard Authority to Board Foreign Flag Vessels on the High Seas, 23 Tul. Mar. L.J. 123 (1998)Google Scholar; Kramek, Joseph E., Bilateral Maritime Counter-Drug and Immigrant Interdiction Agreements: Is this the World of the Future? 31 U. Miami Inter-Am. L. Rev. 121 (2000)Google Scholar. For the July 10, 2000 update of the table of agreements annexed to Kramek’s article, see <http://www.ciponline.org/facts/mar.htm>. Additional treaties have subsequently entered into force with Haiti (Agreement Between the United States of America and the Republic of Haiti Concerning Cooperation to Suppress Illicit Maritime Drug Traffic, Oct. 17, 1997, 1997 UST lexis 128), Honduras (Agreement Between the Government of the United States of America and the Government of the Republic of Honduras Concerning Cooperation for the Suppression of Illicit Maritime Traffic in Narcotic Drugs and Psychotropic Substances, Mar. 29, 2000, 2000 UST lexis 159), Nicaragua (Agreement Between the Government of the United States of America and the Government of the Republic of Nicaragua Concerning Cooperation to Suppress Illicit Traffic by Sea and Air, June 1, 2001, 2001 UST lexis 63), and Guatemala (Agreement Between the Government of the United States of America and the Government of the Republic of Guatemala concerning cooperation to suppress illicit traffic in narcotic drugs and psychotropic substances by sea and air, June 19, 2003), available at <http://usembassy.state,gov/guatemala/wwwfusguatmaritimeagreemente.pdf>. Some other countries have concluded similar treaties as between themselves. See, e.g., Treaty Between Spain and Italy to Combat Illicit Drug Trafficking at Sea, Mar. 23, 1990, Spain-Italy, 1776 UNTS 229 (entered into force May 7, 1994); Vicenta, Carreño Gualde, Suppression of the Illicit Traffic in Narcotic Drugs and Psychotropic Substances on the High Seas: Spanish Case Law, 4 Spanish Y.B. Int’l L. 91 (1995–96)Google Scholar. The conclusion of the various bilateral treaties was anticipated by Article 17 of the 1988 U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 28 ILM 497, also available at <http://www.unodc.org/pdf/convention_1988_en.pdf>, which, while affirming the requirement of flag state consent, encourages the conclusion of bilateral or regional treaties providing a right of stop, search and seizure to other states. See Gilmore, William C., Drug Trafficking by Sea: The 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 15 Marine Pol’y 83 (1991)Google Scholar.

111 The shiprider would also, importantly, be able to authorize the U.S. vessel to pursue any particular non-U.S. vessel into the territorial waters of his state, and to authorize the U.S. vessel to engage in “hot pursuit” of a suspect foreign-flagged vessel fleeing from those same waters.

112 Great Britain and Northern Ireland: Narcotic Drugs: Interdiction of Vessels, Exchange of Notes concluded Nov. 13, 1981, 33 UST 4224, 1981 UST lexis 91. See also Siddle, John, Anglo-American Cooperation in the Suppression of Drug Smuggling, 31 Int’l & Comp. L.Q. 726 (1982)CrossRefGoogle Scholar; Gilmore, Narcotics Interdiction at Sea: UK-US Cooperation, supra note 109.

113 Id.

114 For example, the treaty with Nicaragua, supra note 110, states that authorization to board and search “will be understood to have been granted if no reply to the request for authorization has been made within two hours.”

115 See discussion at notes 29–33 supra.

116 U.N. Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, supra note 110, Art. 17 (“Illicit traffic by sea”); Council of Europe Agreement on Illicit Traffic by Sea, Implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Art. 6, Europ. T.S. No. 156 (“Basic rules on authorization”), also available at <http://conventions.coe.int/Treaty/EN/cadreprincipal.htm> On the former agreement, see Gilmore, Drug Trafficking by Sea: The 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, supra note 110. On the latter, see Gilmore, William C., Narcotics Interdiction at Sea: The 1995 Council of Europe Agreement, 20 Marine Pol’y 3 (1996)CrossRefGoogle Scholar.

117 See discussion at note 8 supra. Article 108 reads:

  • 1.

    1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.

  • 2.

    2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.

118 On withdrawal from treaties and the consequences of “material breach,” see 1969 Vienna Convention on the Law of Treaties, 8 ILM 679 (1969), Arts. 56, 60, also available at <http://untreaty.un.org>.

119 See discussion supra p. 532.

120 National Security Strategy of the United States of America 15 (2002), available at <http://www.whitehouse.gov/nsc/nss.pdf>. See also Threats and Responses; From the Document: A Stress on Disrupting Terrorism, N.Y. Times, Sept. 20, 2002, at A14 Google Scholar.

121 See Byers, Michael, Preemptive Self-Defense: Hegemony, Equality and Strategies of Legal Change, 11 J. Pol. Phil. 171, 181–82 (2003)Google Scholar.

122 Sheridan, Greg, US “free” to Board N Korea Shipping, Australian, July 9, 2003, at 1 Google Scholar. See also Graham, Bradley, Gaps in Plan to Halt Arms Trade; Legal Authority for Intensified Interdiction Is Questioned, Wash. Post, Aug. 3, 2003, at A23 Google Scholar (“In extreme situations, such as the sale by North Korea of a nuclear device, a strong argument can be made for declaring a clear and present danger, justifying action under the UN Charter’s right of self-defense, U.S. officials said . . . . Indeed, U.S. officials have made clear that U.S. forces are prepared to undertake interdictions in international waters or elsewhere if they get a good lead.”); Kremmer, Christopher, High Stakes on the High Seas in Korean Blockade, Sydney Morning Herald, July 12, 2003, at 34 Google Scholar (quoting Bolton, “[i]t’s not only legitimate, it’s necessary self-defence.”).

123 Bolton, John R., “Legitimacy” in International Affairs: The American Perspective in Theory and Operation, Remarks to the Federalist Society, Washington, D.C., Nov. 13, 2003, available at <http://www.state.gov/t/us/rm/26143pf.htm>Google Scholar.

124 National Security Strategy of the United States of America, supra note 120, at 15. See Byers, Preemptive Self-Defense, supra note 121, at 181–2.

125 See Efron, Sonni & Williams, Carol J., Plan Likely to Further Isolate U.S.; Policy: Some Critics Worry that Other Nations Will See a Rationale to also Strike Preemptively, L.A. Times, Sept. 21, 2002, at 1 Google Scholar (discussing Russia’s claim); Arieh, O’Sullivan, Pakistan Tests Missile Amid Fears of Israeli-Indian Strike, Jerusalem Post, Oct. 15, 2003, at 4 Google Scholar (discussing India and Israel’s claims); Stack, Megan K. & Chu, Henry, Syria Asserts Its Right to Self-Defense; It Might Strike Back if Israel Launches Another Attack, Damascus Says. The Threat Caps a Week of Escalating Rhetoric Between the Nations, L.A. Times, Oct. 12, 2003, at 3 Google Scholar (also discussing the Israeli claim to a right of preemption).

126 See Shaw, John, Threats and Responses: Asia-Pacific; Startling His Neighbors, Australian Leader Favors First Strikes, N.Y. Times, Dec. 2, 2002, at A11 Google Scholar.

127 See Marsh, Virginia, Canberra Statement on Terror Action Angers Neighbours, Fin. Times, Dec. 3, 2002, at 10 Google Scholar.

128 Green, Shane, Japan Ready To Strike First If Threatened: PM, Sydney Morning Herald, May 22, 2003, at 8 Google Scholar.

129 SC Res. 1441, Nov. 8, 2002, available at <http://www.un.org/documents/scres.htm>. See also Preston, Julia, Threats and Responses: United Nations; Security Council Votes, 15–0, For Tough Iraq Resolution; Bush Calls It a “Final Test,” N.Y. Times, Nov. 9, 2003, at A1 Google Scholar.

130 See Stromseth, Jane E., Law and Force after Iraq: A Transitional Moment, 97 AJIL 628, 629–31 (2003)Google Scholar.

131 See President Bush, George W., Address to the Nation (Mar. 17, 2003), available at <http://www.whiteh.ouse.gov/news/releases/2003/03/20030317–7.html>>Google Scholar.

132 See Davis, Mark & Fabro, Allesandra, PM Tables Advice that Action Is Legitimate, Australian Fin. Rev., Mar. 19, 2003, at 9 Google Scholar; Gibb, Frances, Attorney-General Gives MPs Legal Basis for War, Times (London), Mar. 18, 2003, at 2 Google Scholar; Statement by the Attorney General, Lord Goldsmith, in Answer to a Parliamentary Question, 18 Mar. 2003, available at <http://www.fco.gov.uk/>.

133 For a similar observation, see Nolte, Georg, The Limits of the Security Council’s Powers and Its Functions in the International Legal System—Some Reflections, in The Role of Law in International Politics 315, 325–26 (Byers, Michael ed., 2000)Google Scholar.

134 Hamutenya, Hidipo, Foreign Minister of Namibia, Address to the General Assembly (Sept. 30, 2003), available at <http://www.un.org/webcast/ga/58/statements/namieng030930.htm>>Google Scholar. See also Smith, Godfrey, Attorney General & Foreign Minister of Belize, Address to the General Assembly, (Sept. 30, 2003), available at <http://www.un.org/webcast/ga/58/statements/belieng030930.htm>>Google Scholar.

135 Interview with President Bush, George W. on Meet the Press with Tim Russert, taped Feb. 7, 2004 Google Scholar, broadcast Feb. 8, 2004, transcript available at <http://msnbc.msn.com/id/4l79618/>. See also President Bush, George W., State of the Union Speech, Jan. 20, 2004, available at <http://www.whitehouse.gov/news/releases/2004/01/20040120–7.html>>Google Scholar (“America will never seek a permission slip to defend the security of our country.”).

136 Warships (and other government-owned ships operated for noncommercial purposes) benefit from immunity under customary international law, as codified in Articles 32, 95, 96, & 110 of LOS Convention, supra note 5. This immunity does not protect against self-defense or other responses to violations of the international law on the use of force. See Churchill & Lowe, supra note 36, at 99.

137 See discussion supra pp. 527–28.

138 See Byers, Michael & Chesterman, Simon, Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law, in Humanitarian Intervention: Ethical, Legal and Political Dimensions 177, 195–201 (Holzgrefe, J. L. and Keohane, Robert O. eds., 2003)Google Scholar.

139 See Draft Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission on the Work of its Fifty-third Session, Art. 39, available at <http://www.un.org/law/ilc/texts/State_responsibility/responsibility_articles(e).pdf>.

140 For an earlier articulation of this view, see Haass, Richard N., The Reluctant Sheriff: The United States After the Cold War 88 (1997)Google Scholar. See Shanker, Thorn, White House Says the U.S. Is Not a Loner, Just Choosy, N.Y. Times, July 31, 2001, at A1 Google Scholar. See also Haass, Richard N., Remarks at the Kennan Institute 2003 Annual Dinner, Washington, D.C., May 22, 2003, available at <http://www.state.gov/s/p/rem/2003/20910.htm>Google Scholar; Haass, Richard N., Remarks to the Chicago Council on Foreign Relations, Chicago June 26, 2002, available at <http://www.state.gov/s/p/rem/11445.htm>>Google Scholar. For critiques, see Daalder, Ivo H. & Lindsay, James M., America Unbound: The Bush Revolution in Foreign Policy (2003)Google Scholar Nye, Joseph S. Jr., U.S. Power and Strategy After Iraq, Foreign Aff., July/Aug. 2003, at 60 CrossRefGoogle Scholar.

141 See Crane, William, Corporations Swallowing Nations: The OECD and the Multilateral Agreement on Investment, 9 Colo. J. Int’l. Envtl. L. & Pol’y 429, 437–38 (1998)Google Scholar; Picciotto, Sol, Linkages in International Investment Regulation: The Antinomies of the Draft Multilateral Agreement on Investment, 19 U.Pa. J. Int’l. Econ. L 731, 742 (1998)Google Scholar; Steinberg, Richard, In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO, 56 Int’l. Org. 339 (2002)CrossRefGoogle Scholar. Steinberg points out that a similar approach was considered by U.S. trade negotiators during the 1970s, in the form of a “GATT-Plus regime” through which “the EC, the United States, and most industrialized countries would deepen trade liberalization among themselves, extending the benefits of the arrangements only to those willing to undertake the obligations.” Id. at 358. As Steinberg explains, the result “would have been a two-tiered global trade regime, which would quietly pressure the developing countries into liberalizing or otherwise facing the trade and investment diversion associated with the more liberal GATT-Plus regime.” Id.

142 Kerin, John, Fear US Will Push N Korea into Fight, Australian, July 10, 2003, at 2 Google Scholar.

143 See Kerin, John, Russia Spurns Weapons Hunt Plan, Australian, Oct. 14, 2003, at 2 Google Scholar; Mcdonald, Hamish, Japan’s Prominent Role in Coral Sea Exercise will Unsettle China, Sydney Morning Herald, Sept. 15, 2003, at 8 Google Scholar; Richter, Paul & Efron, Sonni, U.S. and Allies Set to Search Vessels; Some Experts and Governments Warn that the Move to Curb Arms Traffic May Be Illegal, L.A. Times, Sept. 10, 2003, at 3 Google Scholar.

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145 Dep’t of State, Proliferation Security Initiative: Statement of Interdiction Principles, supra note 16.

146 Bolton, John R., Remarks at Proliferation Security Initiative Meeting (Sept. 4, 2003), available at <http://www.state.gov/1/us/rm/23801.htm>>Google Scholar. In his September 23, 2003, speech to the UN General Assembly, President George W. Bush described the agreed upon set of interdiction principles as “consistent with legal—current legal authorities.” See News Release, White House (Sept. 23, 2003), available at <http://www.whitehouse.gov/news/releases/2003/09/20030923–4.html>.

147 Weiner, Rebecca, Proliferation Security Initiative to Stem Flow of WMD Matériel Center for Non-Proliferation Studies, July 16, 2003, available at <http://cns.miis.edu/pubs/week/030716.htm>Google Scholar.

148 Evans, Michael, US Plans to Seize Suspects at Will, Times (London), July 11, 2003, at 23 Google Scholar.