Limits on the Use of Force in Maritime Operations in Support of WMD Counter-Proliferation Initiatives

• Author: Craig H. Allen
• Position: Professor of Law, University of Washington School of Law, Seattle, Washington
• Pages: 77-139

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Limits on the Use of Force in Maritime

Operations in Support of WMD

Counter-Proliferation Initiatives

Craig H. Allen*

We could have other missile crises in thefuture—different kinds, no doubt, and under

different circumstances. But ifwe are to he successful then, if we are going to preserve our

own national security, we will need friends, we will need supporters, we will need coun-

tries that believe and respect us and will follow our leadership.

Robert F. Kennedy, Thirteen Days: AMemoir of the Cuban Missile Crisis 1

Introduction

OnMay 31, 2003, President Bush invited anumber of like-minded States to

join in a Proliferation Security Initiative (PSI) to counter the proliferation

of weapons of mass destruction (WMD) and prevent them from falling into the

hands of rogue regimes and terrorist organizations.2In the following year, the

United States, together with eight NATO allies3and Australia, lapan, and Singa-

pore, participated in aseries of PSI planning sessions, experts' meetings, exercises

and operations to develop and refine the initiative. On September 4, 2003, the PSI

participating States adopted aStatement of Interdiction Principles (reproduced in

*Judson Falknor Professor of Law, University of Washington School of Law, Seattle,

Washington. After the paper was submitted, the Chairman of the Joint Chiefs of Staff issued a

new instruction which superseded CJCS Inst. 312 1.01 Aon which this article was based.

Limits on the Use ofForce

Appendix I), in which they agreed to "take specific actions in support of interdic-

tion efforts regarding cargoes of WMD, their delivery systems, or related materi-

als."4The "specific actions" are to include vessel boardings at sea and in port. All

such boardings are to be conducted in compliance with applicable international

and national laws. 5Soon after the PSI was released, three open registry nations,

Panama, Liberia and the Marshall Islands, which collectively represent more than

half of the world's shipping capacity by tonnage, entered into bilateral agreements

with the United States that will allow the United States to conduct PSI boardings of

vessels flagged in those States while in international waters.6Cyprus, Croatia and

Belize soon entered into similar agreements. By the time of the first anniversary

meeting of the PSI States in Krakow, Poland on May 31 2004, sixty-two States had

signaled their support for the PSI and the Russian Federation had joined the origi-

nal group of core participants. 7The 9/11 Commission embraced the PSI and rec-

ommended that it be extended.8In addition, the United Nations Security Council

legitimated the core principles of the PSI by unanimously passing Resolution 1540

(reproduced in Appendix II), calling on all States to criminalize possession of

WMD by, or the transfer or transport of WMD to, non-State actors.9The resolu-

tion stopped short of conferring on non-flag-States any new interdiction authority

over vessels engaged in transporting WMD and delivery systems on the high seas. 10

Aproposal to add WMD interdiction authority to the 1988 Convention for the

Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) 11

is presently under consideration. 12

As the PSI matures, maritime boardings under the Statement of Interdiction

Principles may present anumber of practical and legal issues. The first, an impor-

tant but non-legal issue, is the safety of the boarding teams, who will be exposed

not only to the risks associated with boarding potentially noncompliant vessels at

sea (rather than in the comparative safety of aport), but might now also face the

risk of exposure to radiological, biological or chemical materials and explosive de-

vices. The second issue, which is related to the first, concerns the adequacy of

boarding platforms, equipment and trained personnel to conduct the necessary

detection, surveillance, screening, boarding, searching and seizure of vessels, car-

goes and crews, while also carrying out the multitudinous other missions already

imposed on the armed forces. 13 The third issue that could be presented in some

cases concerns the scope of aState's authority to board and search foreign vessels in

its ports and coastal waters, or to permit other States to conduct boardings in their

coastal waters, and the authority of States other than the flag State to intercept, in-

terrogate, board and seize vessels on the high seas, with or without consent of the

flag State or master of the vessel or the authority of aUN Security Council resolu-

tion. The fourth area requiring examination will arise in cases where illicit WMD

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Craig H. Allen

or missile delivery materials are discovered during aboarding, and concerns the

handling and disposition of those materials and the possible actions to be taken

against the vessel and the owner and crew found to be involved in transporting

WMD. The final issue—and the subject of this paper—concerns the legal limits on

the use of force in carrying out WMD interception operations. Analysis of some of

these questions has taken on added urgency in light of the fact that some US critics

ofthe 1982 UN Convention on the Law ofthe Sea 14 have urged the US Senate not to

consent to accession to the treaty, in part because in the critics' opinion the terms

of the treaty would undermine the PSI. 15

Depending on the vessel's location, flag and type, the threat level presented, and

the goals of the mission, maritime detection, interception and enforcement opera-

tions in support of the PSI may involve avariety of Department of Defense (DoD)

and/or Department of Homeland Security (DHS) platforms and personnel. At-sea

measures to intercept vessels suspected of transporting WMD by DoD or DHS

could potentially be carried out under one or more of the following frameworks:

(1) boardings conducted pursuant to consent by the vessel's flag State, the coastal

State or vessel master; (2) maritime interception operations (MIO) to enforce em-

bargoes imposed under the operative terms of aresolution by the UN Security

Council or similar authority; 16 (3) "expanded" maritime interception operations

(E-MIO); 17 (4) maritime law enforcement operations (MLE); 18 (5) the peacetime

right of approach and visit; 19 (6) the customary law of countermeasures (self-

help);20 (7) the right of individual or collective self-defense; or (8) the belligerent's

right of visit and search for contraband under the law of neutrality.

Vessel interceptions and boardings by naval vessels are generally carried out by

visit, board, search and seizure (VBSS) teams drawn from the US Maritime

Forces.21 Boarding teams from US Navy platforms may include Navy, Marine

Corps and Coast Guard personnel. Coast Guard interception and boarding teams

may also operate from Coast Guard boats or cutters or from allied naval vessels. In

most cases, Coast Guard law enforcement detachments (LEDETs) on naval vessels

serve under the operational or tactical control of the cognizant Coast Guard com-

mand authority when conducting boardings.22 In cases not calling for law enforce-

ment measures, however, the LEDET may operate under DoD control, under the

Coast Guard's statutory authority to provide assistance to other agencies.23

Experience has shown that interceptions and boardings by Navy and Coast

Guard units occasionally require the use of force to overcome noncompliance or

in self-defense. Anumber of standing and situation-specific documents promul-

gated by competent authorities establish doctrine and provide guidance applica-

ble in situations involving the use of force during interception and boarding

operations by DoD and Coast Guard units. 24 At the same time, international law

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