COMMENTARY
U.S. maritime initiative poses thorny legal questions

By Mark J. Valencia

The June 24 seizing of the cargo ship Baltic Sky by Greek commandos in Greek waters is a manifestation of a U.S.-led anti-terrorist maritime initiative. Indeed, the Bush administration is pressing a group of "like-minded" countries to agree to selective interdiction of ships bound to or from "rogue nations" carrying materials or technology used to manufacture weapons of mass destruction.

Mid-level officials from the United States, Britain, Italy, Japan, Australia, France, Germany, Poland, Portugal, the Netherlands and Spain met in Madrid in mid-June to discuss this proposal, and they will meet again this month.

But there are three basic international legal problems with this initiative.

First, it is not illegal for nations who are not signatories to the Nuclear Nonproliferation Treaty to ship nuclear materials to each other. And it is not illegal to trade commercially in explosives, or for that matter, arms.

Second, according to the 1982 U.N. Convention on the Law of the Sea, government ships used only for noncommercial purposes have complete immunity from the jurisdiction of any other state on the high seas. This could include government vessels transporting weapons to other states on a noncommercial basis.

Third, and far more important, such interdictions, agreed or otherwise, could undermine the carefully nurtured balance enshrined in the convention. This treaty was a "grand bargain" between developing states and the maritime powers and is seen by most countries as a "package deal." A major bone of contention during the nearly two decades of acrimonious negotiations was the desire of developing coastal states to limit the "freedom" of navigation of the maritime powers. However, maritime powers led by the United States insisted on very broad freedom of navigation out of concern that their naval and air access and mobility could be severely restricted by the global Exclusive Economic Zone "enclosure" movement. The contending groups finally agreed to establish three major zones.

• A 12-nautical-mile territorial zone where coastal states retain sovereignty over most activities and where only innocent passage is allowed — that is, passage that is not "prejudicial to the peace, good order or security of the coastal state."

• A 200-nautical-mile exclusive economic zone where coastal states retain sovereign rights over resources and related activities but maritime powers retain most of their high-seas "freedoms."

• The high seas, where navigational freedoms remain unencumbered. The treaty came into force in November 1994 upon its 60th ratification. The U.S. Congress has yet to ratify it, but is expected to consider it next year. Nevertheless, the United States has long argued that the navigational freedoms codified by the convention are customary international law.

But now the United States is proposing to interdict suspect vessels on the high seas, and even within other nations' territorial and archipelagic waters, one would hope with those countries' agreement. Present international law allows interdiction and boarding of suspect vessels only with the permission of the country under whose flag the ship is sailing, or if the ship is stateless. Aside from deviating from the traditional U.S. staunch defense of freedom of navigation, such "exceptions" can over time create new law and practice. Indeed if the United States can arrange for such "exceptions," so can other countries.

What is more troubling to some nations is that the United States may proceed with interdictions in other countries' waters without their concurrence or even their knowledge. U.S. Defense Secretary Donald Rumsfeld has said that "the United States would mount a maritime interdiction effort anywhere the benefits outweighed the costs."

The December 2002 forced boarding, inspection and seizure of the North Korean cargo vessel So San on the high seas by the Spanish warship Navarra at the behest of the United States was perhaps the first major "shot" in this new U.S. maritime initiative.

The U.S. Navy took over the detention of the vessel from the Spanish. Technically, the vessel was stateless although the United States knew it had come from a North Korean port. Such vessels are subject to boarding and inspection, but not seizure. Although the United States eventually released the vessel, the damage to international law and the convention had already been done.

In the Baltic Sky case, the vessel was carrying 750 tons of industrial-grade explosives and detonators from Tunisia to Sudan. NATO alleged that the ship was operating in an abnormal and suspicious manner. But both Tunisia and the cargo buyer in the Sudanese capital Khartoum claimed the purchase and transport of the explosives were part of a purely commercial transaction. Of course, Greece may have considered that transporting such a dangerous cargo through its territorial waters was prejudicial to its security. But that is now up to the courts, or perhaps the International Tribunal for the Law of the Sea to decide. The United States could, of course, try to get the U.N. Security Council to pass a resolution "authorizing states to board and inspect any vessel or vehicle if there is reason to believe they are carrying weapons of mass destruction." But after its defeat in the Security Council regarding its invasion of Iraq, this is unlikely. So the most promising venue is NATO.

According to the U.N. Charter, regional organizations, such as NATO, are permitted to take measures to secure their regions — which for NATO would be a large part of the Western world. Since weapons of mass destruction could pose a global threat, NATO could have broad authority to interdict weapons heading to rogue nations. But the administration could face considerable challenges winning NATO's support as an alliance because all NATO members must agree to the plan for it to receive alliance approval.

Indeed, not all target countries are falling into line. Thus this new U.S. maritime initiative runs the risk of introducing a "might makes right" regime for the Law of the Sea. As a result, this new initiative and resistance to it may stimulate a sorely needed, frank discussion of U.S. intentions and implications for the Law of the Sea, the concept of sovereignty, and world order in the 21st century.

Mark J. Valencia is a senior fellow in the research program of the East-West Center.