The right of visit and the 2005 Protocol on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation.

• Author: Klein, Natalie

1. INTRODUCTION

   On October 14, 2005, a second Protocol to the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988 Convention) (1) was adopted at the International Maritime Organization (IMO). (2) The 1988 Convention had been developed as a response to the hijacking of the Italian vessel, the Achille Lauro, in Egyptian waters, and the murder onboard of a United States national. 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." (3) 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. (4) What was missing from the 1988 Convention was effectively a means to apprehend offenders. The inclusion of a procedure in the 2005 Protocol to allow states to board ships marks a shift from merely providing lawful bases to establish jurisdiction to creating the means to exercise jurisdiction. (5)

   Following the terrorist attacks on the United States on September 11, 2001, the potential for comparable attacks in the maritime industry was increasingly appreciated. The Assembly of the IMO decided in Resolution 924 to review existing legal and technical measures to prevent and suppress terrorist acts against ships both at port and at sea, as well as improve security aboard and ashore. (6) The Secretary-General of the IMO stated that the adoption of the 2005 Protocol "mark[ed] the completion of the tasks set by the IMO Assembly in resolution A.924(22)." (7)

   The initial focus on revisions to the 1988 Convention concerned the expansion of offenses under Article 3 over which states parties could establish jurisdiction, rather than the inclusion of ship-boarding provisions to enforce jurisdiction. (8) This suggestion emerged in August 2002 following discussions among a Correspondence Group established by the United States. (9) As the 1988 Convention needed updating to reflect developments from subsequent counter terrorism treaties, (10) the United States similarly proposed that the amendments should take into account ship-boarding provisions that had developed through the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, (11) the Protocol against the Smuggling of Migrants by Land, Sea and Air, (12) as well as agreements relating to cooperation in suppressing illicit maritime trafficking in narcotic drugs and psychotropic substances in the Caribbean. (13) In drawing on these treaties, the amendments to the 1988 Convention thus expanded not only to reflect developments in relation to the suppression of international terrorism, but also to create a new legal basis by which states will be able to exercise the right of visit on the high seas. The United States, a key participant in negotiations, considers that the 2005 Protocol "establish[es] the most well-developed boarding procedures and safeguards in any instrument of its type." (14)

   This Article focuses on the ship-boarding aspect of the new agreement, as the 2005 Protocol represents the latest exception to the traditional rules relating to the exclusive jurisdiction of the flag state over its vessels when those vessels are on the high seas. This innovation is important when considered in light of the United States' recent efforts under the Proliferation Security Initiative (PSI) to establish a regime intended to prevent the movement of weapons of mass destruction, their delivery systems and related materials between states and non-state actors of proliferation concern. There have been considerable doubts about the legality of various aspects of the PSI, (15) and the participants in the regime have recognized that their current authority is limited to maritime areas and vessels under their jurisdiction. (16) The United States now views the 2005 Protocol as:

   establish[ing] an international legal basis to impede and prosecute the trafficking of [weapons of mass destruction], their delivery systems and related materials on the high seas, helping implement our common obligations under UN Security Council resolution 1540 and closing loopholes that proliferators or terrorists might use to transfer [weapons of mass destruction], their delivery systems and related materials. (17) The 2005 Protocol, as a new development in the law of the sea, is intended to enhance maritime security and counter-terrorism efforts, but must still be considered as part of a broader body of law regulating rights and duties in different maritime areas. The history of the law of the sea has been entrenched in the principle of mare liberum, the freedom of the seas. As described by McDougal and Bourke in 1962:

   By appropriate accommodation and compromise, a public order of the seas has been maintained to permit states to send their argosies to all the four corners of the world and to take adequate account of both the general security interest of the community of the states and the special security interest of particular states. (18) The law of the sea has traditionally encapsulated an appropriate balance between inclusive claims (accommodating all states) and exclusive claims (those benefiting single states) in order to achieve a common interest. (19) Although the predominant emphasis in the law of the sea has been that the common interest is achieved through maintaining the freedoms of the high seas and respecting flag state authority in these areas, these central motivations may no longer be completely appropriate given the recent claims to undertake various measures for the enhancement of maritime security. This Article therefore examines the 2005 Protocol against this history and argues that a paradigm shift may be needed in order fully to meet modern interests in maritime security. The common interest in ensuring maritime security may mean that a readjustment in the balance of exclusive and inclusive interests has become necessary.

   The second Part of this Article describes in greater detail the traditional paradigm in which the law of the sea operates, namely, the foundational concept of mare liberum and the concomitant authority accorded to states over their vessels on the high seas. Having established this basis, the Article turns in Part Three to certain limited exceptions to the traditional paradigm whereby the right of visit has been recognized at different times for the advance of particular social interests, and highlights the way that adherence to the freedom of the high seas and flag state control have moderated the contours of these exceptions. These categories of exceptions have not been closed, however, and Part Four addresses the possibility of allowing for further encroachments on the freedom of the seas through treaty. In view of these limited instances where the right of visit may be exercised, the discussion in Part Five then turns to the interaction of security interests vis-a-vis the right of visit and how current concerns about security are putting pressure on the traditional rules relating to the use of force and motivating states to develop a variety of means to meet their key interests in enhancing maritime security. Part Six explores the right of visit under the 2005 Protocol against the background of the traditional paradigm and previous efforts to improve maritime security. When the ambiguities and gaps in the 2005 Protocol are exposed, it raises the important question of whether there is a need for a paradigm shift so as better to accommodate exclusive and inclusive interests in achieving the common goal of ensuring the safety and security of international shipping.

2. THE TRADITIONAL PARADIGM: FLAG STATE JURISDICTION AND THE FREEDOM OF THE HIGH SEAS

   For almost four hundred years, the foundational concept for the law of the sea has been the principle of mare liberum, the freedom of the high seas. The wide expanses of the oceans have traditionally been regarded as areas that no state could control and hence over which no state could claim dominion or sovereignty. (20) Any developments in the law of the sea have been premised on the idea that the oceans, barring a narrow strip of water subject to coastal state sovereignty, (21) are open to all users and that any claims to ocean space or use were to be viewed as encroachments on these freedoms of the high seas. (22) The emphasis has thus been on retaining inclusive enjoyment of this ocean space, and only permitting exclusive claims to prevail if they "serve the common interest where the impacts of use are especially critical for a particular state and the restrictions upon inclusive use are kept to the minimum." (23)

   Instead of claims of rights or control over this ocean space, a state has authority over the vessels that ply these areas under the flag of that state. Garvey has proclaimed that "[f]lag state jurisdiction [is] ... a highly significant embodiment of the general principle of freedom of the seas." (24) It is the very fact that the high seas are open to all states that no one state is then able to exert control or authority over the vessels traversing the oceans unless that vessel has a tie to that particular state. As observed in the 1817 judgment of Le Louis:

   In places where no local authority exists, where the subjects of all States meet upon a footing of entire equality and independence, no one State, or any of its subjects, has a right to assume or exercise authority over the subjects of another ... [N]o nation can exercise a right of visitation and search upon the common and...