BHO TALK
Thanks to BHO [all I know/ all of the vastly larger universe of things I don’t know . . Task to find someway to build on his “territorial temptation” using the little that I do know or can learn

The problem I consider is a relatively narrow one: what a target state (let’s call it the US) can do when it has reliable intelligence indicating that WMD or related technologies are  on board a vessel heading toward the target state or toward it’s enemies. The threat is serious and it is of harms that are condemned by the law of almost all states and by international bodies or international law . Yet current international law, protecting the fundamental freedom of navigation, does not permit the target state to board the vessel to investigate if its concerns are in fact justified.

            This seems to be a situation in which the target state would want to act, it arguably should be able to act and, perhaps most important., it will act, regardless of the constraints of international law.

There are three ways we could seek to change int’l law limits to recognize the needs of the target state

a) expand borders where coastal state is recognized to have sufficient sovereignty to act by, as BHO states it “territorializing the EEZ.” 

b) allow target state to act militarily via a claim that are acting in pre-emptive self defense;

c) use criminal law and expand boundaries of permissible enforcement jurisdiction 

my conclusion: the last is the “least worst” way to modify current  int’l law limits and recognize “post-9/11 realities”

The dangers of expanding the authority of the coastal state in the EEZ are already set out by Professor Oxman in his centennial essay. He reminds us that global mobility as well as coastal security must be considered when considering the limits of territorial claims and argues forcefully and eloquently against this territorial temptation and its erosion of the values of mare liberium.

Furthermore, as Professor Oxman himself pointed out to me when I began thinking about this talk, territorialization of the EEZ in the name of national security has another flaw: severe and immediate threats to national security could arise from a vessel  on the high seas, not just one within the target state’s EEZ.  The problem might involve ship approaching US waters that we fear could launch biological or chemical weapons at the US, causing harm or fear, combined with a concern that it might slip through the net if we could not stop it until it entered the territorial waters. But it also might involve a ship carrying significant quantities of nuclear or biological materials headed toward a rogue state or a failed state where would it could fall into the hands of terrorists who would then employ it to wreak havoc on American embassies, Americans abroad, or allies

 The problem is both narrower and broader than the “solution” of extending coastal state boarding rights to its EEZ.

 

            An alternative approach might be to recognize the actions of those aboard the vessel as a sufficient threat to the target state’s national security interests to permit hostile action, including boarding and investigation, and perhaps more extreme actions, in self-defense. [I here delete much of what I learned in preparing the talk in the interest of staying within my time limit.] Traditionally, the right of self-defense was limited to responses to armed attacks or the narrow expansion of anticipatory self-defense in the famous Caroline situation, described by Jennings in the AJIL in 1938. The Caroline rule permits military acts where there is a “necessity of self-defence, instant,,overwhelming, leaving no choice of means, and no moment for deliberation.”

            After the UN Charter it is arguable whether even that narrow exception is included within Article 51, recognizing  that nothing in the Charter “shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member” state, with the proviso that such measures “shall be immediately reported to the Security Council.” 

In recent decades and increasingly since George W Bush took office, however, the US has asserted a far more expansive view of when it can and will act militarily to respond to threats well before they could be described as an imminent armed attack. Claims were made and actions defended on this ground intermittently in the 1980s and 1990s.

 Most recently, in the March 2006 National Security Strategy statement, the Administration stated, in regard to the proliferation of WMD that, “if necessary, under long-standing principles of self defense, we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attacks.” Given the risks, “we cannot afford to stand idly by as grave dangers materialize. This is the principle and logic of preemption.”

            [[Others in the Administration and among its supporters have made similar claims. As the claim for pre-emptive self-defense broadens, the potential for misuse and erosion of the fundamental United Nations limit on unilateral acts of aggression increases. When the claim is made by President Bush that “the only path to safety is the path of action,” and that “the war on terror will not be won on the defensive. We must take the battle to the enemy”,  intermediate and multilateral responses to threats seem to disappear. The State need not await an armed attack, or an imminent armed attack; it can, it appears, respond to a growing threat, or the risk that a rogue state will, if not blocked, develop the capability to engage in such an attack.

As Thomas Franck said “ The law cannot have intended to leave every State free to resort to military force whenever it perceived itself grievously endangered by action of another, for that would negate any role for law.” [1]

I believe that any attempt to reconstruct international law to permit pre-emptive self-defense beyond the narrow limits of the Caroline is chimerical or dangerous or both.

            If we are to modify international law norms to acknowledge the need to permit States to board and inspect ships, regardless of registry, when they reasonably believe that such action is necessary to respond to perceived WMD threats,  a narrowly defined rule allowing enforcement of criminal law rules in such situations is a better (or “less worse””) solution.

The problem raised for criminal law is only one of enforcement jurisdiction, not prescriptive jurisdiction. A state can criminalize behavior that occurs in part on ships of foreign registry, even if the actors are not nationals of that state and the ship is not found within the state’s territorial waters. Internationally acknowledged bases of prescriptive jurisdiction include the territorial principle, the protective principle and universal jurisdiction.  The transportation of weapons of mass destruction or related material to persons or places where they are likely to be used to harm a State or its essential interests can plausibly  be criminalized under any or all of these.

 

The problem with using domestic criminal law to respond to threats of terrorism or WMD proliferation at sea arises because of the restrictions on enforcement jurisdiction. As I learned when I audited Professor Oxman’s international law class, no matter how sure we are that X committed a murder in Miami, and no matter how clear it is that we can try him and convict him here, United States authorities can’t arrest him on the streets of Paris – or at least, despite Alvarez-Machain, it is clearly a violation of international law if they do so!

The freedom of navigation similarly restraints our right to arrest him aboard a French-flag vessel. There are, however, certain well-recognized situations in which a State other than the flag state can exercise some form of enforcement jurisdiction over a vessel

 

As transnational consensus develops around the need to combat certain activities, these criteria, particularly the rule that the flag state can permit another state to board its vessels, can be applied creatively to minimize the problem of how and when the forces of State A can exercise enforcement jurisdiction over a non-A state vessel on the high seas. Some of these developments occurred first

in the context of the transportation of illegal drugs by sea.

 More recently and with increasing intensity since 9/11, there has been a focus on terrorism, particularly in the context of the proliferation of weapons of mass destruction. Both the General Assembly and the Security Council have condemned terrorism. S. C.  Res. 1373 called on all states to make acts of terrorism serious crimes and to accede to and fully implement existing international conventions to prevent terrorism. The next year, under its Chapter VII authority, the Council in  Res. 1504,  affirmed  that “proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitute a threat to international peace and security” and called on  all member states to prevent proliferation.The resolution specifically recognized  the risk that non-State actors may acquire, develop, traffic in or use WMD and means of delivering them and called on all member States to refrain from providing any form of support to non-State actors seeking to do so.

            Unsurprisingly, the United States has exercised extensively its prescriptive jurisdiction over such activities, criminalizing “acts of terrorism” defined to include threats, attempts, and conspiracies, and including conduct outside the United States with only a quite attenuated connection to anything within the US or threatening its interstate or foreign commerce. It also announced its intent, in the 2006 National Strategy for Combating Terrorism, to “detect and disrupt terrorists’ attempted movement of WMD-related materials, weapons and personnel” which may be  “heading for the United States or US interests overseas” and use its “global partnerships, international agreements, and ongoing border security and interdiction efforts.” 

            Its cooperative efforts have operated primarily through the Proliferation Security Initiative, a structured “coalition of the willing,” which is carefully denominated as “a set of activities, not a formal treaty-based organization.”  (There are 16 participating States, all developed nations, and, according to a 2006 statement, seventy-five states that have “expressed support” for the initiative.) Under the Principles, States agree “at their own initiative or at the request and good cause shown by another State” to board and search their vessels in their own waters,  to “take appropriate actions to stop and/or search”  vessels of whatever flag in their waters that are “reasonably suspected” of carrying such cargoes and to seize it if found, and ”to seriously consider providing consent under the appropriate circumstances” to other states to search its own flag vessels and seize any such cargo that is discovered. [The PSI statements have “conspicuously avoided reference to interdiction on the high seas.”] While the PSI states in its principles that interdiction activities shall be carried out “consistent with  . .  relevant international law and frameworks,” one cannot assess the accuracy of this claim, since those actions are not made public.[2]         

            One important additional development in the US’s ability to respond to such WMD-proliferation threats has been obtaining the cooperation of both Panama and Liberia, the two most prominent “flag of convenience” states, through bilateral ship-boarding agreements. Each agreement provides for an expedited procedure to obtain consent to board and, particularly important, deems there to be ‘tacit authorization,’ when the flag state authorities do not respond to a request within a specified, extremely brief, period. (Imagine how many bureaucratic logjams would disappear if this system became widespread!!)

            Problems will still arise where a ship carries the flag of a State which has  neither entered into such an agreement     nor become a partner in the Proliferation Security Initiative. Assume the flag state does not respond positively to a specific request to permit US forces, based on articulated reasonable suspicion, to board and investigate. Even if  the flag state had an international obligation under Sec Council Res. 1540,  to do so, or to investigate for itself, that obviously does not translate into a right of the  endangered state to take unilateral protective action.

Thus I propose a new, narrow exception to the exclusive authority of the flag state.

This rule would apply only when the following conditions were met:

The non-flag state has probable cause to believe that:

 

 

In that situation, non-flag state personnel may board and investigate. Consistent with current law when a state carries out an investigation in response to suspicion that a ship is not in fact a flagged vessel of the state whose colors it carries, the investigating State would be liable for any damages caused by the incident if the investigation shows that there are no such materials on board. If WMD is discovered, the investigating state could (since it certainly would) detain the vessel or seize the cargo. The decision to board, as well as the results of the investigation should be promptly reported to appropriate international bodies (perhaps both the Security Council and the International Maritime Organization), which may review retrospectively if the requisite conditions had in fact been met.

            This admittedly requires a modification of current international law principles, which required Spain, having discovered missiles bound for Yemen aboard the So-San, a North Korean freighter, to allow the delivery to continue.[3]  The modification is a relatively narrow one, and might be even narrower by being limited only to WMD itself. One wonders, regardless of international law, if the Spanish, acting in collaboration with the United States, would have allowed a cargo of enriched uranium or weaponized botulism to be delivered to Yemen, regardless of international law.  If States are likely to act anyway, providing a way they can do so consistent with international law, but with narrow and defined constraints may make international law more effective. A better solution, of course, would be a widely accepted treaty that dealt with this situation, such as the proposed amendments to the convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation or an authorizing resolution of the Security Council.[4] In the meantime, if target states took this approach it would both do the least damage to international law and  might also serve the desirable indirect function of encouraging a truly multilateral, cooperative regime to deal with the genuine and serious intertwined  problems of WMD proliferation and terrorism.

            Thank you.

 



[1] Quoted in Andreas Paulus, The war against Iraq and the future of international law, 25 mich j int’l l 691, 702 (2004)

[2] The Principles do not specify what States or entities are “of proliferation concern.” Rather, the requesting and responding states in regard to a particular interdiction activity are to use their own judgment, without any previously agreed upon criteria, in deciding if the information suggesting the need for interdiction of a particular vessel is sufficiently reliable in suggesting that there is a risk within the contemplation of the PSI.

[3] See Michael Byers, Policing the High Seas, 98 AJIL 526, 526 (2004).

[4] Joyner,  supra at 537.