Terrorism and Proliferation of Weapons of Mass Destruction

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Terrorism and Proliferation of Weapons of Mass Destruction

A. Introduction

While terrorism and weapons of mass destruction are not new maritime security threats, greater focus has been accorded to these concerns in the last decade. The terrorist attacks on the United States on September 11, 2001 highlighted the potential for terrorists to use other means of transport to wreak death, destruction, and economic havoc. Little imagination was needed to consider the impact of a small boat packed with explosives ramming into a vessel carrying oil or gas as it visits a mega-port or transits one of the waterways considered vital for international shipping. Vessels carrying gas or oil or other potentially hazardous material could be hijacked and crashed for similar effect. Less dramatically, terrorists use international shipping for personal transport, as well as shipping their supplies and as a means to finance their activities.

The concept of maritime terrorism was initially understood within the context of piracy whereby any unauthorized act of violence on the high seas would be characterized as piracy.¹ However, as the formal definition of piracy under international law came to be understood as limited to acts of violence perpetrated for financial purposes,² there were still acts of violence at sea undertaken for political or other ‘public’ reasons. These violent acts, if performed outside the territorial sea, were not recognized as crimes over which all states could exercise jurisdiction, as is the case with piracy.³ Instead, these acts came to be branded as maritime terrorism.⁴ Joyner describes maritime terrorism as ‘the systematic use or threat to use acts of violence against international shipping and maritime services by an individual or group to induce fear and intimidation in a civilian population in order to achieve political ambitions or objectives’.⁵ The issues surrounding maritime terrorism and the rights of states to prescribe and enforce jurisdiction over these acts of violence outside the territorial sea came most strongly to the fore in contemporary international law with the hijacking of an Italian vessel, the Achille Lauro, and murder of a US national on board by Palestinian Liberation Forces in 1985.

Terrorist acts against vessels have become more common since the Achille Lauro incident. The Tamil Tigers (Liberation Tigers of Tamil Eelam—LTTE) particularly utilized terrorist attacks against shipping as part of their liberation struggle; inter-island ferries in the Philippines have been targeted by terrorists; and, guerrillas alleged to be affiliated with Al Qaeda launched a suicide attack in 2000 against the US Navy destroyer Cole in Yemen,⁶ and an attempted attack against the USS Sullivans in 1999.⁷

Subsequent to September 11, a terrorist attack was perpetrated against the French supertanker Limburg as it neared a Yemeni port as well as on approach to the Iraqi oil loading terminal of Khawr al Amaya through the use of small vessels packed with explosives. Attacks have also been perpetrated at various ports through car bombs, parcel bombs, and suicide bombers.⁸ Al Qaeda reportedly owns or controls ‘about 15 cargo ships that could be used as floating bombs against cruise ships and other high interest vessels, or to smuggle explosives, chemical or biological weapons, such as a radioactive dirty bomb into a US port, or to transport al Qaeda members into a third country.’⁹ In addition, there have been concerns expressed about shipping being used to finance terrorist activities, both through illegal fund-raising means (such as drug trafficking or smuggling diamonds) as well as legitimate businesses.¹⁰ Following September 11, there was cognizance of the range of terrorist acts that could be perpetrated,¹¹ and that the existing legal regimes were inadequate to meet these threats.

Heightening concerns about maritime terrorism has been recognition that terrorists may seek to acquire weapons of mass destruction (WMD). The discovery of a clandestine nuclear smuggling ring headed by the Pakistani scientist Abdul Qadeer escalated concerns of terrorists acquiring WMD for use in attacks; these supplies most likely being shipped between the interested parties. ‘Experts predict a 70% chance of an attack with [WMD] somewhere in the world in the next decade.’¹² In the post-Cold War era, the spectre of smaller states and non-state actors obtaining WMD has changed the security dynamic and means that international actors are acquiring considerable leveraging and deterrent capabilities, disproportionate to their small resource bases and conventional military arsenals, when compared to a larger state or group of states.¹³ The possible shipment of WMD, their delivery systems, component parts and technologies, and related material¹⁴ to non-state actors (predominantly terrorist groups, or those trading with terrorist groups) or to states that are believed to facilitate sale or supply to terrorists has been the focus of legal, political, and operational developments.

Within this dynamic, states have become concerned not only with non-proliferation, which is intended to slow and ideally reverse proliferation trends,¹⁵ but also with counter-proliferation, which involves preventing specific actors from obtaining WMD-related materials and technologies, or reducing if not eliminating an actor’s existing WMD capability.¹⁶ Non-proliferation activities include the conclusion of possession and proliferation treaties, establishing safeguards and inspection regimes, export control regimes, export control assistance measures, and economic sanctions.¹⁷ Counter-proliferation has then entailed ‘traditional efforts of deterrence and containment, efforts of defense and mitigation of attack, use of early detection technologies, interdiction of suspected transfers of sensitive items, and preemptive and preventive acts of force against either actual or potential possessors of WMD.’¹⁸ It is some of these latter activities that have proven controversial in the maritime context.

The protection of international shipping from terrorist attack is acute given it is commonly estimated that over 90 per cent of the world’s goods are transported by sea. An attack that successfully closed a mega-port or vital waterway would likely cause major economic disruption around the world. As a result, states have generally recognized that there is a shared interest in addressing the terrorist threat posed to maritime security. Equally, the proliferation of WMD and related material constitutes a broad concern for states given the very nature of these weapons and their effects if used. The inclusive interest in maritime security when addressing terrorism and WMD and related material is apparent. Responding to this maritime security threat has been polemic because of, once again, the strong interest in the freedom of navigation. The reconciliation of shared interests in navigation and protection from terrorism and the proliferation of WMD is examined in this chapter.

This chapter examines the legal responses to threats to maritime security posed by terrorism and WMD. By way of background, it first explores the adoption of the 1988 SUA Convention as the reaction to the Achille Lauro incident and also looks to the existing WMD legal regimes that have bearing on proliferation of WMD at sea. The second section considers two key steps that have been taken to better protect ports from terrorist acts, including the use of a WMD at port and the shipment of WMD and related materials. These are the ISPS Code,¹⁹ and the US-led Container Security Initiative. The third section explores the new legal instruments devised by states to permit interdictions on the high seas, namely a series of bilateral treaties instigated by the United States and revisions to the 1988 SUA Convention, adopted as the 2005 SUA Protocol. Finally, the chapter analyses the Proliferation Security Initiative, a political arrangement that addresses the WMD threat at port, in territorial seas, and on the high seas. The PSI may be seen as an overlay to the other recent initiatives addressing terrorism and WMD and a critical question here is the extent that the PSI may be re-shaping international law.

These efforts clearly reflect the shared recognition that states will all benefit from a cooperative and collaborative approach to addressing terrorism and the proliferation of WMD as maritime security threats. The inclusive interest in maritime security has enabled the establishment of greater international control over security processes at port and aboard ships through the creation and adoption of universal standards and procedures. Greater claims to rely on the right of visit for the purposes of detecting terrorist and WMD offences also reflect the shared interest in responding to these maritime security threats. However, inclusive claims in maritime security have been diminished by inclusive claims to uphold the freedom of navigation and the concomitant exclusive right of a state to exercise jurisdiction over vessels flying its flag. Exclusive interests in determining the most efficient and profitable ways to run ports have also influenced efforts to enhance maritime security. As will be discussed, the legal regimes created to respond to these threats could have been improved if greater emphasis had been accorded to shared interests in maritime security. Such an improvement was warranted and would not have overly forsaken interests in the freedom of navigation.

B. Initial Responses to Maritime Terrorism—1988 SUA Convention

One of the most dramatic acts of maritime terrorism to instigate an international legal response was the 1985 hijacking of the Achille Lauro. The Achille Lauro, an Italian vessel, was hijacked by four members of the Palestinian Liberation Front in October 1985, approximately 30 miles off the coast of Egypt.²⁰ The hijackers had posed as passengers on the vessel prior to taking control. The hijackers demanded the release of 50 Palestinians imprisoned in Israel in return for the safe release of the 400 passengers on board. A national of the United States was murdered by the hijackers before they surrendered to Egyptian authorities in return for passage on board an Egyptian plane to Tunis. En route, the United States authorized its aircraft to intercept and force the Egyptian plane to land in Italy, at which point the hijackers were taken into Italian custody and prosecuted. The factual circumstances of the incident prevented the hijackers from being labelled as pirates under international law,²¹ and provided for the possibility of a variety of states being entitled to exercise jurisdiction over the offenders as a matter of international law, subject to the criminal offences existing within the domestic laws of each of the concerned states.

Given the legal conundra caused by the Achille Lauro hijacking, Austria, Egypt, and Italy proposed the adoption of a treaty under the auspices of the IMO to set forth ‘comprehensive requirements for the suppression of unlawful acts committed against the safety of maritime navigation which endanger innocent human lives; jeopardise the safety of persons and property; seriously affect the operation of maritime services and, thus, are of grave concern to the international community as a whole.’²² These efforts led to the adoption of the 1988 SUA Convention. The importance of this treaty at the time of its adoption was that it identified certain unlawful acts against ships and provided bases by which states could establish jurisdiction over the perpetrators of those unlawful acts.²³ A Protocol negotiated and adopted at the same time addressing terrorist acts against fixed platforms on the continental shelf similarly identified offences and established jurisdiction over them.²⁴

Although the 1988 SUA Convention filled lacunae identified in response to the Achille Lauro incident, there were still a number of limitations and weaknesses in the treaty. It followed the approach of other so-called sectoral terrorism treaties, in that it dealt with one particular type of terrorist activity and was focused on the establishment of those activities as crimes over which states with pertinent connections to the offences could exercise jurisdiction.²⁵ Further, the 1988 SUA Convention adopted the principle of aut dedere aut judicare consistent with the earlier terrorism treaties.²⁶ This approach was preferred as a more moderate one rather than expanding the definition of piracy, as states did not wish to make these terrorist offences ones over which all states could exercise jurisdiction.²⁷

The offences set forth in the 1988 SUA Convention were significant at the time of adoption, as they not only drew from the preceding terrorism treaties to recognize offences in the maritime context, but also elaborated on that earlier work. Article 3 of the 1988 SUA Convention provided that it was an offence under the treaty if an individual unlawfully and intentionally:

(a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or

(f) communicates information which he knows to be false, thereby endangering the safe navigation of a ship;²⁸ or

(g) injures or kills any person, in connection with the commission or the attempted commission of any of the [above offences].

Attempts or complicity in these offences were also identified as offences within the 1988 SUA Convention.²⁹ The inclusion of a principal offence of injuring or killing a person in connection with the commission or attempted commission of any of the other principal offences was a new addition in the 1988 SUA Convention. States parties to the 1988 SUA Convention were required take the necessary measures to be able to exercise jurisdiction over these offences.³⁰ The gaps created by the 1988 SUA Convention in terms of addressing a situation when a foreign vessel is in the hands of terrorists were noted at the time, but was a scenario left to be addressed under the existing, albeit unsatisfactory, rules.³¹

One of the primary limitations of the 1988 SUA Convention was that it failed to grant states any right to exercise enforcement jurisdiction (particularly the right of visit) in the prevention and suppression of the offences set forth in the treaty. Article 9 expressly states to this end: ‘Nothing in this Convention shall affect in any way the rules of international law pertaining to the competence of States to exercise investigative or enforcement jurisdiction on board ships not flying their flag’. Joyner interprets this provision as ‘explicitly mandat[ing] that there is no right of visit and search of vessels exercising free passage on the high seas in a situation of nonbelligerency’.³²

The provisions related to the prevention and suppression of the prescribed offences are limited to requirements to cooperate in prevention of potential offences and the exchange of information.³³ Even the provision requiring cooperation for the prevention of the offences was shortened in the 1988 SUA Convention, compared to the models in the earlier Hostages Convention,³⁴ although this drafting change was not intended to be a departure from the expectations enshrined in the Hostages Convention.³⁵ Article 14 of the 1988 SUA Convention simply calls on states to use ‘all practicable measures’ to prevent preparations for, or commission of, the specified offences, without providing any clarity (beyond exchanging information) as to what these measures should or could entail.³⁶ Gaja has suggested that the requirements to take preventive measures and to prosecute or extradite offenders imply an obligation to respond to terrorist acts as they take place.³⁷ Mellor goes even further asserting: ‘It is clear from customary law that States do owe a duty to each other to prevent terrorist acts, but this duty extends only as far as a state’s means practically allow.’³⁸ The 1988 SUA Convention does not embrace this position but is predominantly reactive, rather than preventative, in nature.³⁹ For a treaty purporting to deal with ‘suppression’ of unlawful acts, there is little in the 1988 SUA Convention that supports this particular purpose. It is therefore unsurprising that the treaty was considered ripe for review with increasing interest in protecting against the occurrence of terrorist attacks and proliferation of WMD.

C. Initial Legal Responses to WMD Proliferation

The key treaties in place addressing the proliferation of WMD and associated materials are the Nuclear Non-Proliferation Treaty (NPT),⁴⁰ the Chemical Weapons Convention,⁴¹ and the Biological Weapons Convention.⁴² The Chemical Weapons Convention bans the development, production, acquisition, stockpiling, retention or transfer to anyone of weapon-grade toxic chemicals and their precursors. However, one of the difficulties with this treaty in relation to the shipment of WMD and related materials is that the ban does not extend to chemicals that are to be used for peaceful purposes. The Biological Weapons Convention prohibits state parties from developing, producing, stockpiling or otherwise acquiring or retaining biological weapons for hostile purposes or for use in armed conflict, which leaves open the possibility of doing so for defensive purposes. Finally, the NPT is addressed precisely to the question of proliferation of nuclear weapons but is limited in that it only recognizes the existence of five nuclear weapon states,⁴³ and not states such as Pakistan, India, Israel, and North Korea. Moreover, nuclear weapon states that are outside the NPT are not bound by prohibitions of shipping nuclear weapons and materials to each other. Even for those states within the NPT regime, they are entitled to research, produce, and use nuclear energy for peaceful purposes.⁴⁴ The United States has interpreted the NPT to require states parties to interdict vessels suspected of carrying illegal nuclear materials in their territorial seas, but Valencia notes that this requirement is not explicit in the NPT.⁴⁵

The operation of these treaty regimes has been supplemented by various political arrangements between interested states. Most relevant for the shipment of WMD and related materials are the multilateral export control regimes, which are more specific in relation to transfer and possession than the WMD treaties, but are not formally binding under international law. One such arrangement is the Australia Group, which deals with the coordination and harmonization of national export controls for chemical and biological weapons-related material. The Zangger Committee and the Nuclear Suppliers Group provide oversight to the export controls of the NPT. The Missile Technology Control Regime (MTCR) consists of a non-binding political arrangement to control the proliferation of rocket and unmanned air vehicle systems capable of delivering WMD.⁴⁶ Through the MTCR, 90 states have been part of a declared Hague International Code of Conduct Against Ballistic Missile Proliferation—Joyner describes it as ‘com[ing] into force as a non-binding arrangement among its ninety declarants’.⁴⁷ These treaties and regimes have not proved sufficient in ending the black market in WMD and related material. Difficulties as to their effectiveness exist in terms of their enforcement and whether there is widespread subscription and compliance with their strictures.⁴⁸

Beyond the deficiencies and gaps in the existing non-proliferation regimes, there are further complications confronting states that wish to improve maritime security by dealing with shipments of WMD and related material for either non-proliferation or counter-proliferation efforts. In the first instance, the transfer of these weapons is not necessarily unlawful under international law.⁴⁹ Moreover, as noted by Joyner, ‘with few exceptions there is very little hard or formal international law not only on the question of transfers of nuclear, chemical, and biological materials, agents, and compounds and the associated myriad dual-use items and technologies that could be used to turn those materials into weaponized devices, but even more fundamentally on the question of the possession of such technologies’.⁵⁰ So as a preliminary matter, states need to exercise prescriptive jurisdiction to devise specific offences related to the shipment of WMD and related materials.⁵¹

The exercise of prescriptive jurisdiction is complicated here because many of the components, technologies and production materials associated with WMD are dual-use in nature (that is, they have civilian as well as military end-uses). Beck has stated that ‘95 percent of the ingredients for WMD are dual-use in nature, having both civilian and WMD applications.’⁵² The NPT, Chemical Weapons Convention, and the Biological Weapons Convention all permit states parties to possess and trade dual-use materials. The problems associated with the transfer of dual-use items became apparent with the weapons inspections conducted in Iraq after the 1991 Gulf War and the discovery of an advanced WMD programme that had primarily relied on the import of dual-use materials from companies in the West.⁵³

For enforcement jurisdiction to be exercised, it would be incumbent on the enforcing state to show that the dual-use item in question was in fact to be used for weapons development, rather than an alternative peaceful, legitimate, and legal purpose.⁵⁴ The means for exercising enforcement jurisdiction over these new offences also needs to be established in view of the limited instances where states are able to exercise law enforcement powers outside their territorial seas. In this regard, Valencia writes:

Some analysts argue that interdiction is critical to preventing the spread of WMD because of the rapid growth in states and groups pursuing WMD programmes, the purported expanding nexus between WMD and terrorism, and the failure of the current non-proliferation architecture. Interdiction fills the lacunae by ensuring commitments are kept and stops proliferation-related exports by states outside existing non-proliferation regimes. Moreover, it deters suppliers and customers and makes proliferation more costly and difficult.⁵⁵

The lacunae arising from the WMD proliferation regime in the maritime context could therefore be seen in relation to the authority for states to stop the transport of WMD and related material at sea, as well as the existence of appropriate jurisdictional bases for action at port and in the territorial sea. When WMD proliferation is coupled with the possibility of their acquisition and use by terrorists, the impetus for action is greater. As discussed in the following parts, legal initiatives have been undertaken to address the threat of terrorism and proliferation of WMD both in port and at sea.

D. Increasing Port State Controls

Improving port security to address the maritime security threats of terrorism and proliferation of WMD has been essential for several reasons. In the first instance, ports are of course the interface for international shipping with the production and delivery of goods. Ports are the vital starting and end points in maritime transport. The disruption of this interface because of a terrorist attack will obviously hinder international trade and the unavailability or reduced capacity of a port could well have consequences that negatively affect other ports in the transport chain. Moreover, the vulnerability of ports in this regard is underlined when it is recalled that ports have already been targeted for attacks in the past.⁵⁶ Finally, port security is important because it is ultimately easier from a purely practical perspective to inspect vessels when they are in port rather than when those vessels are at sea. These factors have motivated multilateral reform within the IMO with the adoption of the ISPS Code. Further, the US-led development of the Container Security Initiative has sent benchmarks for reform in countries that are home to the more important ports for international trade and also instigated change under the auspices of the World Customs Organization.

(1) ISPS Code

Well prior to the attacks on September 11, 2001, the IMO had considered ways to improve security of ships both at port and at sea through the adoption of a circular in 1986 entitled ‘Measures to Prevent Unlawful Acts against Passengers and Crew on Board Ships’.⁵⁷ The recommendations contained therein were voluntary and were not at all widely adopted by the governments of ship operators.⁵⁸ This situation was to be significantly redressed subsequent to September 11.⁵⁹ One of the key developments in addressing ship and port security was the adoption of the ISPS Code.

This Code was developed as an amendment to the 1974 Safety of Life at Sea Convention (SOLAS Convention) and came into force in July, 2004.⁶⁰ The ISPS Code is enshrined in Regulation XI-2/3 of the SOLAS Convention. In attaching the ISPS Code to the SOLAS Convention, states parties to the SOLAS Convention agreed to amend Chapter XI of this treaty to include special measures to enhance maritime security in a new part. The amendments to the SOLAS Convention were made by what is known as the tacit acceptance system whereby the amendments automatically come into force once adopted by the IMO, unless sufficient states object.⁶¹ In the ISPS Code’s adoption, the SOLAS Convention was extended beyond questions of maritime safety to issues of maritime security. Part A of the Code sets out mandatory security-related requirements for governments, port authorities, and shipping companies. Part B then comprises a series of non-mandatory guidelines as to how these requirements might be met.

The ISPS Code is intended to identify and allow for preventive measures against security incidents, which are ‘any suspicious act or circumstance threatening the security of the ship’.⁶² It applies to passenger ships and cargo ships of 500 gross tonnage and upwards, including high-speed craft, mobile offshore drilling units, and port facilities serving such ships engaged on international voyages. The extent to which the ISPS Code applies to ships thus depends on ‘the type of ship, its cargoes and/or passengers and the trading patterns of visiting vessels’.⁶³ More than 98 per cent of the world’s shipping operates under the SOLAS Convention.⁶⁴ However, the ISPS Code does not apply to warships or other government ships used for non-commercial service, nor does it apply to any fishing vessel of any size.⁶⁵ Immediate difficulties arise here given the potential for vessels ostensibly being used for fishing purposes instead being put to terrorist purposes. For example, the vessels used to attack the USS Cole and Iraqi oil platforms would not have been covered by the ISPS Code so were not potentially identifiable as a maritime security risk. The IMO has taken one step to address this problem through the adoption of non-mandatory guidelines on security aspects of vessels falling outside the ISPS Code and other amendments to the SOLAS Convention.⁶⁶ It remains to be seen whether this circular is a precursor to more formal requirements to otherwise redress this gap. The continual recognition of immunity of warships and designated government vessels also poses potential risks for non- and counter-proliferation efforts.

‘The purpose of the ISPS Code is to provide a standardised, consistent framework for evaluating risk, enabling governments to offset changes in threat levels with changes in vulnerability for ships and port facilities.’⁶⁷ The ISPS Code is intended to be a risk-management exercise whereby levels of security are determined by the extent of risk to which a port is exposed and what measures need to be put in place in relation to the assessed risk at any one port.⁶⁸

The ISPS Code accords a variety of roles to port, coastal, and flag states, as well as particular individuals who are to act as Port Facility Security Officers, Company Security Officers, and Ship Security Officers.⁶⁹ Particular duties for each of these individual roles are set out in the ISPS Code and are essentially intended to improve communication and cooperation between ships, their offices, port facilities, and the relevant states, as well as creating a ‘culture of security’ ashore and on board the ship in regular shipping operations.⁷⁰

Flag states are responsible for approving the Ship Security Plans that must be held by each vessel to which the ISPS Code applies and developing a Declaration of Security to clarify the duties between the port facility and the ship.⁷¹ Flag states further have the responsibility for assessing security threats and setting security levels as appropriate for their vessels.⁷² Coastal states must develop and implement Port Facility Security Plans on the basis of a Port Facility Security Assessment, as well as train the Port Facility Security Officer.⁷³ Security assessments involve identifying and evaluating important assets and infrastructure; identifying the threats to those assets and infrastructure; and assessing possible aspects of port vulnerability.⁷⁴ Port states determine the security levels for their ports.⁷⁵ To reduce vulnerabilities, ships ‘will be subject to a system of survey, verification, certification and control to ensure that their security measures are implemented’.⁷⁶

The ISPS Code involves the provision of information to ports regarding vessels seeking to enter that port. This information includes the security level at which the ship is operating and had been operating during the previous 10 port visits, as well as any special or additional security measures that were undertaken in any previous port.⁷⁷ Information may further be sought in relation to ship-to-ship activity as well as a range of other practical security-related information, though not on the ship’ssecurit yplan.⁷⁸ The security information to be provided prior to entry into port has been proposed by the IMO Maritime Safety Committee with the intention of harmonizing what data set may be required from each port.⁷⁹ However, states still retain the option to seek additional or supplementary information as a condition for entry into a port located within its territory.⁸⁰ The required minimum time for the submission of information is not to be less than 24 hours, which is roughly equivalent to 500 nautical miles from a state’s coast.⁸¹

This flow of information is therefore a critical aspect of the successful operation of the ISPS Code. However, if there are shortcomings in the information provided, limited enforcement options are available to port states. If a master of a ship declines to provide the requested information, then a state may opt to deny entry of that ship into port. In the further event that the assessment of the available information leads to the conclusion that there are clear grounds for believing that the ship is in non-compliance with the requirements of Chapter XI-2 of the SOLAS Convention or Part A of the ISPS Code,⁸² then the port state may require that efforts be undertaken to rectify the non-compliance.⁸³

If the non-compliance is not rectified, the port state is entitled to require the ship to proceed to a specific location in its territorial sea or internal waters, inspect the ship in its territorial waters prior to entry into port, or deny the ship entry into port.⁸⁴ Before those steps may be initiated, the master of the ship is to be notified of the port state’s intentions in this regard so that the master has the opportunity not to enter that port.⁸⁵ For the inspection of the ship in the territorial sea, the Maritime Safety Committee envisages that it would ‘be undertaken normally when there was information/intelligence … suggesting that there were “clear grounds” for suspecting that the ship was not in compliance with the provisions or posed a threat to the port facility’.⁸⁶ The obvious difficulty here is that if a security threat is perceived by virtue of this information-seeking process, the port state is only able to take steps to reduce or eliminate that threat once the vessel is in port or within 12 miles of its coast. Such proximity to a port state’s maritime assets may be quite undesirable.

Port states may further verify that a vessel has an International Ship Security Certificate, which confirms that a ship is compliant with Chapter XI-2 of SOLAS and the ISPS Code. If a certificate is not provided or there are clear grounds to believe that a vessel is not in compliance with the ISPS Code or Chapter XI-2 of SOLAS, then certain control measures may be taken if a state still allows the ship to enter its port. These measures are limited to inspection, delaying, detaining of the ship, or restrictions of its operation in port, or lesser administrative or corrective measures.⁸⁷ The control measures are to be implemented in such a manner to ensure that they are proportionate, reasonable and of the minimum severity and duration necessary to rectify or mitigate the non-compliance.⁸⁸ Again, the problem arises that the very presence of the vessel in port may be a danger in its own right.

States are, however, left with some discretion, as the Maritime Safety Committee of the IMO has envisaged the possibility of action additional to the threats anticipated under the ISPS Code and the measures that may be taken in response:

On the question of what was understood to be an ‘immediate threat’ in regulation XI-2/9.3.3, the Committee agreed that this could cover two scenarios: firstly, that the ship did not comply with the provisions of SOLAS chapter XI-2 and part A of the ISPS Code and therefore was considered to be a threat, or secondly,… intelligence or other information had been received indicating that the ship posed an immediate threat or was under threat itself. The Committee recognized that there may be other scenarios where, under international law, Contracting Governments could take additional measures outside of SOLAS regulation XI-2/9 for national security or defence, even if a ship fully complied with SOLAS chapter XI-2 and part A of the ISPS Code.⁸⁹

Although ‘additional measures’ may therefore be taken, these steps remain constrained to the dictates of the existing law of the sea.

A critical issue in relation to the success of the ISPS Code in responding to threats to maritime security is the question of compliance with its requirements. ‘It is anticipated that market forces and economic factors will drive compliance.’⁹⁰ However, there is rightly concern that reliance on flag states to adhere to the requirements of the ISPS Code will undermine its effectiveness. This concern stems from the economic capacity of developing states with considerable fleets, such as Panama, to administer the requirements of the ISPS Code.⁹¹ Thus far, despite initial concerns about the necessary measures being implemented in time,⁹² compliance with the ISPS Code has been favourably reported.⁹³ Port facilities have apparently taken longer to achieve compliance than ships.⁹⁴

It does seem that the restriction of the port state’s responses to assessed risks to areas within its territorial seas, internal waters and ports will not alleviate all concerns to counter terrorism threats as may be required. While the ISPS Code does permit greater transparency in terms of knowing more about the voyage of a particular vessel, there still could have been greater scope accorded to port authorities in responding to vessels perceived to be a security risk. Consistent with other agreements concluded at the IMO, enforcement is a matter left to flag states and so no new enforcement powers were granted to port states under the ISPS Code.

Nonetheless, as a risk-management exercise for ports, which ensures that ports have procedures in place to handle terrorist threats, the ISPS Code is a considerable advance in the laws related to maritime security. It fits squarely within the traditional construct of the law of the sea as it is consistent with the sovereignty exercised by states over their ports, internal waters and territorial seas. Moreover, certain deference is still accorded to the freedom of navigation, as the master of a ship is given the opportunity to avoid a port when that master knows control measures may be instituted against the ship. In addition, the control measures are balanced against needs to maintain the efficiency of international shipping. In these respects, the ISPS Code stands as an example of states cooperating to improve maritime security, reflecting the shared interest in reducing security risks for ports and the majority of ships.

(2) Container Security Initiative and WCO Framework of Standards

The security of ports has also been bolstered through the US-led Container Security Initiative (CSI), which is intended to provide greater information about what is being shipped where and to who as a means of protecting the global supply chain from terrorism. The CSI commenced in January 2002 and is preventative in nature in terms of seeking information about what is being carried in containers as a means of thwarting terrorist activity. Approximately 90 per cent of current global trade in goods is through the use of shipping containers.⁹⁵ In particular, the United States was concerned about shipping containers being used for the transport of WMD and terrorists,⁹⁶ along with their supplies.⁹⁷ One scenario of concern has been the detonation of a so-called dirty bomb or nuclear device in a US port after being unloaded from a container ship.⁹⁸ This possibility seemed greater when it was taken into account that over 8,000 ships make 51,000 port calls and deliver around 7.5 million overseas containers in the United States annually, and of those containers, only 2 per cent are actually inspected.⁹⁹

The nature of international shipping is such that a large number of individuals, such as manufacturers, exporters, importers, carriers, and customs and port officials, may be involved in handling the cargo or providing information about the contents of the container.¹⁰⁰ Keefer describes the consequences for security as follows:

Opportunities for security breaches occur primarily in the following stages of the shipping process: (1) the packing process at the foreign warehouse or factory; (2) the transport of the packed goods from that location to the foreign port at which the goods will be loaded; and (3) the preparation of the cargo manifest setting forth the contents and other information about the goods being shipped. Given these opportunities to tamper with the shipment process, container security efforts focus in large part on container inspection and documentation, container seals, and the secure storage of containers.¹⁰¹

If containers are intercepted offshore, then any potential damage may be limited. However, the practicalities of inspecting containers while they are packed on a vessel are not conducive to offshore interdictions. As containers are more easily inspected on land, the United States opted to undertake these checks before the containers reach the United States, hence in the ports of other states prior to the containers being shipped.

While the CSI was initially undertaken pursuant to pre-existing statutory authority in the United States, it was subsequently codified in 2006 in the Security and Accountability for Every Port Act (SAFE Port Act).¹⁰² To support the CSI, the United States has also instituted additional security measures through national legislation. The range of programs instituted for port security is referred to collectively as the ‘US Cargo Security Strategy’.¹⁰³ While these are domestic measures, they have inevitably impacted on international shipping given the extent of international trade involving the United States. One such initiative is known as the 24 Hour Rule, which was implemented in January 2003.¹⁰⁴ Under the 24 Hour Rule, information on goods to be shipped to or through the United States must be provided to US officials 24 hours prior to the cargo being lade aboard a vessel in a foreign port.¹⁰⁵

The United States has also instituted requirements for the use of particular types of container seals and to provide information on cargo manifests as to the seal number for each container.¹⁰⁶ A further initiative has been the Customs-Trade Partnership Against Terrorism (C-TPAT), which emphasizes coordination between the shipping industry and government customs officials. If industry participants voluntarily meet specified minimum security criteria then they are entitled to various benefits in relation to decreased cargo examination and more expeditious access into US ports.¹⁰⁷ C-TPAT was initially criticized because of its reliance on trust, rather than verification.¹⁰⁸ These initiatives all hold significance under the law of the sea because the many countries shipping to the United States must conform to these requirements and because the United States has successfully sought bilateral and multilateral acceptance of its standards.¹⁰⁹

For pre-screening under the CSI, the United States concluded agreements with various port states, particularly those with the largest volume of cargo destined for the United States, but with the goal of pre-screening occurring at all ports of departure regardless of size and traffic volume.¹¹⁰ The three key elements of the CSI are:

1. establishment of criteria for the identification of high-risk containers based on advanced information and risk targeting;

2. pre-screening of containers before they arrive in the United States; and

3. full utilization of technology to pre-screen high-risk containers.¹¹¹

In undertaking security checks in foreign ports, the CSI is intended to push out US borders so that US government functions related to border security are undertaken outside US territory and relies upon the cooperation of foreign governments.¹¹²

To identify high-risk containers based on advanced information and strategic intelligence, US customs officials share information on a bilateral basis with its CSI partners. To be involved in the CSI, participant states must commit inter alia ‘to sharing critical data, intelligence, and risk management information… in order to do collaborative targeting, and developing an automated mechanism for these exchanges’.¹¹³ While US officials may access shipment information and act in an advisory capacity to identify shipments of concern, the foreign host governments determine whether, when, and how to inspect potentially problematic containers.¹¹⁴

Each state concludes its own agreement with the United States and implements new law or revises its law to give effect to the agreement.¹¹⁵ The bilateral nature of these arrangements has proven problematic in some instances. The United States entered into bilateral agreements with eight European states, provoking a dispute within the European Union on the basis that the bilateral agreements were in violation of European law since they potentially gave those states an unfair competitive advantage over European Union member states with ports not involved in the CSI.¹¹⁶ In addition, as bilateral agreements, the United States has ostensibly granted reciprocal rights to its treaty party to undertake similar security checks in the United States. However, it is widely recognized that the implementation of the CSI has been heavily skewed in favour of the United States.¹¹⁷ In addition, civil penalties may be imposed on shippers if there is a failure to comply with the new regulations, and permission to load or unload cargo to or from the vessel may be denied.¹¹⁸

In pursuing the CSI, the United States has endeavoured to highlight the advantages for international trade. Economic benefits from the CSI arise in that cargo bound for the US is processed on an expedited basis upon arrival as it has already been inspected at a foreign port, and any port involved in the CSI would be less disrupted in the event of a terrorist attack in light of the fact that it has a security system in place.¹¹⁹ A further purported benefit is that the improved security will allow for a decrease in the cost of insurance.¹²⁰ Costs for states involved in the CSI may arise from the need to obtain new inspection equipment, although the United States characterizes this as an investment comparable to insurance.¹²¹ A further financial implication of the CSI is that the examination costs have been shifted from the US importer to the foreign shipper.¹²² There are concerns that costs will then be passed on to the consumer.¹²³ The arguments that international trade is facilitated through the CSI need to be stronger if maritime security concerns are not widely accepted as sufficient justification for a concerted, unilateral, effort at revising port operations.

The CSI has raised concerns about infringing on state sovereignty, particularly in relation to interference with another state’s ports and closer regulation of the activities of the shipping industry by one, albeit powerful, state.¹²⁴ This interference in state sovereignty is underlined by the lack of true reciprocity in most of the bilateral agreements concluded by the United States for the purposes of the CSI.¹²⁵ The imposition of sanctions whereby vessels navigating to or from the United States may not provide transportation to ports with ineffective security measures has also been seen as a way of imposing US standards for maritime security throughout the world.¹²⁶ The assertion of such special interests could have been deemed as incompatible with the common interest. Beckman has suggested that the infringements on sovereignty would not have been tolerated by states prior to the September 11 attacks.¹²⁷

Noortmann has argued that the CSI is an appropriate mechanism to use to respond to maritime security threats because it avoids novel interpretations of coastal state rights within the territorial sea, and particularly the risk of unilateral enforcement measures that would be outside the confines of the existing law of the sea.¹²⁸ Instead, the CSI is geared to improving security measures at ports, ostensibly with the consent of the states concerned, and may ultimately lead to a harmonization of standards for cargo security, at least between ports dealing with the highest volume of containers.¹²⁹ The US Secretary for Homeland Security justifies this approach with the view that ‘shipping is a global industry; terrorism is a global problem; and our collective security requires a global solution.’¹³⁰ To the extent that the CSI may reflect a collective response to a maritime security threat, it is less objectionable to an exclusive claim to impose the requirements of one state upon many. The US dominance in instituting the CSI tends to undermine the collective nature of the response.

Beyond the bilateral agreements pursued by the United States to protect the global supply chain through the CSI and other domestic regulations, there has been support within the World Customs Organization, the European Union, APEC, and the G8 for the expansion of the CSI principles, including non-intrusive inspection standards on a global level.¹³¹ The World Customs Organization adopted a resolution in June 2002 to enable ports in its member states to begin developing CSI-like programmes, which would include ‘collection of data concerning both outbound shipments in electronic form, use of risk management to identify and target high-risk shipments, and use of radiation detection and large-scale technology to identify containers that pose a security threat’.¹³² This resolution then paved the way for the adoption in June 2005 of the Framework of Standards to Secure and Facilitate Global Trade.¹³³

The WCO Framework of Standards draws on elements of the CSI, as well as the 24 Hour Rule and C-TPAT.¹³⁴ It is described as involving two pillars, creating a customs-to-customs network on the one hand and a customs-to-business partnership on the other.¹³⁵