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73. "Proliferation Security Initiative (PSI): Countering Proliferation by Sea": paper presented to conference in Xiamen, China (March 2005)


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PROLIFERATION SECURITY INITIATIVE (PSI):

COUNTERING PROLIFERATION BY SEA

Captain J. Ashley Roach, JAGC, USN (ret’d)

Office of the Legal Adviser

U.S. Department of State

March 11, 2005

Law of the Sea Issues in the East and South China Seas

Panel VII: Commercial Shipping in the Region

Xiamen, China

March 9-12, 2005

Sponsored by

The Center for Ocean Law and Policy, University of Virginia School of Law

Xiamen University Center for Oceans Policy and Law

National Institute for the South China Sea Studies, China

National Museum Underwater Archaeology Center, China

Oceanic and Fisheries Bureau, Fujian Province, China

Korea Forum on the Law of the Sea, Korea

Law of the Sea Institute, Iceland

PROLIFERATION SECURITY INITIATIVE (PSI):

COUNTERING PROLIFERATION BY SEA[1]

by

Captain J. Ashley Roach, JAGC, USN (ret’d)

I. Development of the Proliferation Security Initiative (PSI)

In December 2002, two events occurred that led to development of the Proliferation Security Initiative.

Case of the Cambodian-flagged M/V SOSAN

On December 9, 2002, Spanish forces located 15 scud missiles, conventional warheads and rocket propellant under a cargo of cement after stopping this North Korean-owned vessel in the Arabian Sea that had sought to conceal its true identity and nationality. Only the cement was manifested. The vessel was said to be headed for Socotra. After consultations at the highest levels, on December 11, the vessel was permitted to proceed to Yemen.[2]

U.S. National Strategy to Combat Weapons of Mass Destruction

In December 2002, the U.S. National Strategy to Combat WMD was published.[3] It declared that combating WMD was a top national security priority for the United States. It called for enhanced interdiction capabilities. Interdiction was defined broadly, e.g., military, law enforcement, diplomacy.

Thereafter, President Bush launched the PSI on May 31, 2003 during a speech in Krakow, Poland as a cooperative framework to coordinate national actions supporting interdiction. He said:

The greatest threat to peace is the spread of nuclear, chemical and biological weapons. And we must work together to stop proliferation. . . . When weapons of mass destruction or their components are in transit, we must have the means and authority to seize them. So today I announce a new effort to fight proliferation called the Proliferation Security Initiative. The United States and a number of our close allies, including Poland, have begun working on new agreements to search planes and ships carrying suspect cargo and to seize illegal weapons or missile technologies. Over time, we will extend this partnership as broadly as possible to keep the world's most destructive weapons away from our shores and out of the hands of our common enemies.[4]

PSI thus began with eleven like-minded States (Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, the UK and the US).[5] Over the following three months these countries developed a Statement of Interdiction Principles to which they agreed on September 4, 2003 in Paris.[6]

One year later on May 31, 2004, 61 nations joined together in Krakow to express broader political support for the Initiative.[7]

II. Statement of Interdiction Principles

The Statement of Interdiction Principles represents a political commitment by States to use robustly their national capabilities to interdict shipments of nuclear, chemical, and biological weapons, related materials, and their means of delivery that are of proliferation concern.

The Statement of Principles specifically says that all actions will be taken consistent with national legal authorities and international law and frameworks.[8]

While the Statement of Interdiction Principles does not list countries of proliferation concern, participants noted in a statement from the July 2003 meeting in Brisbane, Australia, that North Korea and Iran are of concern.[9] For its part, the United States has indicated publicly that Syria also is a country of concern.[10] Nevertheless, PSI efforts are not aimed at any one country, but at halting worldwide trafficking in WMD, delivery systems, and related materials.[11]

Key Maritime Commitments

The Statement of Interdiction Principles sets out the following policies and practices to prevent shipments by sea to or from States or non-state actors of proliferation concern:

-- PSI participants commit not to transport or assist in the transport of WMD cargoes to or from States or non-state actors of proliferation concern; and

-- not to allow any persons subject to their jurisdiction to do so.[12]

In addition, the Statement of Principles address PSI participants in their separate capacities as flag States and as coastal and port States.


As Flag States

PSI participant flag States commit, on their own initiative or at the request of and after good cause is shown by another State, to board, search and seize cargo on vessel flying its flag, in its own internal waters or territorial seas, or areas beyond the territorial seas of any other State. The standard for action is “reasonably suspected of transporting”.[13]

In addition, PSI participant flag States commit to seriously consider providing consent under the appropriate circumstances to the boarding and searching of its own flag vessels by other States, and to the seizure of such WMD-related cargoes in such vessels that may be identified by such States.[14]

The Statement of Principles acknowledges the flexibility flag States always have to decide what are the appropriate circumstances for consent to other States to board, search and seize, either in advance or on a case-by-case basis.

As Coastal and Port States

As coastal States, PSI participants commit to board and search vessels that are reasonably suspected of carrying such cargoes located in their internal waters, territorial seas, or contiguous zones (when declared), and to seize such cargoes that are identified.[15]

As port States, PSI participants commit to enforce conditions on vessels entering or departing their ports, internal waters, or territorial seas that are reasonably suspected of carrying such cargoes, such as requiring that such vessels be subject to boarding, search, and seizure of such cargoes prior to entry.[16]

If their ports are used as transshipment points for shipments of such cargoes to or from States or non-state actors of proliferation concern, PSI participant States commit to inspect such vessels that are reasonably suspected of carrying such cargoes, and to seize such cargoes that are identified.[17]

III. Bilateral Ship Boarding Agreements

At October 2003 PSI meeting in London, the United States presented proposals to conclude bilateral shipboarding agreements, similar to its arrangements for counter narcotics shipboardings, to gain rapid consent to board vessels suspected of carrying WMD-related cargoes, consistent with the Statement of Interdiction Principles.

PSI participants welcomed the effort, provided comments on the US draft, and agreed that proceeding in bilateral manner would be the most productive way ahead.

In 2004, the United States concluded agreements with Panama, Liberia and the Marshall Islands.[18]

Taken together, these four registries represent more than 30 percent of world’s gross tonnage of merchant ships.[19]

Each of these countries indicated signing the agreements was meant to signal their registries were reliable and law abiding.

The United States is engaged in consultations and negotiations with more than 20 additional countries.

The United Kingdom has indicated it is pursuing similar agreements with several countries.

Operational Content of Agreements

The agreements establish the basis for any PSI shipboarding by:

defining WMD as basis for boarding vessels flagged by bilateral treaty partners;

stating that only commercial and private vessels are covered;

establishing reciprocal rights and obligations;

providing that the standard for any PSI shipboarding is the presence of “reasonable grounds to suspect” the vessel is engaged in this conduct;

limiting the application of the agreements to international waters, i.e., “seaward of any State’s territorial sea”.

The agreements provide for communications between Competent Authorities who must be available at any time to receive, process and respond to requests for confirmation of nationality and boarding.

The process would normally begin by alerting the Competent Authority of the treaty partner, requesting confirmation of the nationality of the suspect vessel; and if nationality is confirmed, requesting authorization to board and search. The agreements list the items to be included in the requests. The request may be oral, but must be followed up with timely written request. The request would also include authorization to detain the vessel if evidence of proliferation by sea is found, as well as to detain the cargo and persons on board pending expeditious disposition instructions from the Competent Authority of the flag State.

The agreements list the range of possible responses by the Competent Authority if the vessel’s nationality is confirmed:

-- conduct the boarding and search with its own security force officials;

-- authorize the boarding by the requesting party;

-- conduct the boarding and search together with the requesting party; or

-- deny permission to board and search.

To avoid delay and the potential for destruction of evidence, the agreements provide a short timeline for the Competent Authority to respond to the requests to verify nationality and for authorization to board and search. Depending on the capabilities and necessary internal procedures of the flag State, the requested party is to respond within two (or more) hours of acknowledging receipt of requests.

The agreements also address what actions are permissible if, after acknowledging receipt of request, there is no further response to the request.

A model PSI shipboarding agreement is set out in Appendix I along with a more detailed analysis of most of its provisions, including their consistency with the international law of the sea.[20]

IV. Review and Assessment of Operational Law

Operational legal experts met during the operational experts meeting in Washington in December 2003, Ottawa in April 2004, Oslo in August 2004 and Sydney in December 2004 to review and share each country’s maritime authorities to take actions in support of the PSI. The reviews identified gaps in each State’s legal authorities and areas for training during operational exercises.

The Participants have agreed that it is not necessary that all States have identical authorities; instead a goal of the PSI is to maximize activity by calling on individual States with authority and capability suited to a given interdiction.

V. Maritime Training Exercises

One element of the Interdiction Principles is a commitment to maximize coordination among participants in interdiction efforts.[21] This is being carried out, in the maritime context, in part through preparation for and participation in exercises.

Of the thirteen PSI exercises conducted to date since September 2003, seven have been maritime-based:

Australian-led exercise in the Coral Sea, September 10-13, 2003;

Spanish-led exercise in the Mediterranean, October 13-17, 2003;

French-led exercise in the Mediterranean, November 25-27, 2003;

U.S.-led exercise in the Arabian Sea, January 11-17, 2004;

Italian-led exercise in the Mediterranean, April 19-22, 2004;

Japan-led exercise in the Pacific near Tokyo Bay, October 25-27, 2004;[22] and

U.S.-led exercise in the Caribbean Sea, November 8-18, 2004.[23] The US-Liberia PSI shipboarding agreement was used during this exercise.

In addition the U.S. Naval War College hosted a maritime interdiction game September 27-October 1, 2004, which tested many of the concepts that have been under review in the operational experts groups.

Three maritime exercises are planned for 2005: Portugal-led exercise in the Atlantic April 8-11, 2005; Singapore-led exercise in the Western Pacific and the port of Singapore August 15-18, 2005; and UK-led exercise in the Indian Ocean (Q4 2005).

VI. Case Study – BBC China

The BBC China was a German-owned ship (flagged in Antigua and Barbuda) that the UK and US had information was carrying uranium centrifuge parts to Libya. In early October 2003 a request was made to the German Government to search the ship. The German government agreed and had the owner, BBC Chartering & Logistic GmbH & Co., bring the ship in to the Italian port of Taranto where centrifuge parts were removed by Italian customs before permitting the ship to continue on its itinerary.[24]

In the context of PSI the following points should be noted:

-- only four States participated – demonstrating that it is not essential that all PSI participants be involved in an actual interdiction;.

-- information was essential to the success of the interdiction;

-- cooperation of the owner of the vessel was essential;

-- cooperation of the Italian port authorities was also essential to the interdiction;

-- all activities were consistent with international and national legal requirements;

-- the successful interdiction was a factor in Libya’s decision to forego its nuclear weapons capabilities, and take key steps to rejoin the international community; and

-- the interdiction helped unravel the A.Q. Khan network in black-market nuclear technology.[25]

VII. UN Security Council Resolution 1540

The Proliferation Security Initiative is part of an overall counterproliferation effort intended to apply intelligence, diplomatic, law enforcement, and other available tools to prevent transfers of weapons of mass destruction and related items to countries and entities of concern. UN Security Council Resolution 1540, proposed by President Bush and adopted unanimously by the Security Council on April 28, 2004, calls on all States to take cooperative action to prevent trafficking in weapons of mass destruction.[26]

UNSCR 1540 and the PSI Statement of Interdiction Principles are mutually reinforcing and are legally and politically compatible. UN Security Council Resolution 1540 recognizes the threat to international peace and security posed by the proliferation of WMD and outlines concrete actions States can take to counter this threat. Among other steps, operative paragraph 10 of UNSCR 1540 calls upon all States “in accordance with their national legal authorities and legislation and consistent with international law” to take cooperative action to stop, impede, intercept and otherwise prevent the illicit trafficking in these weapons, their means of delivery and related materials. The PSI and its Statement of Interdiction Principles identify steps that can produce the kind of cooperation called for in UNSCR 1540. Accordingly, PSI is completely consistent with the UNSC Resolution. Furthermore, UNSCR 1540’s decision under Chapter VII of the UN Charter that all States shall develop effective border, national export, transshipment, end-user and physical protection controls to prevent proliferation is consistent with and, in fact, bolsters the Statement of Interdiction Principles’ call for nations to “review and work to strengthen their relevant national legal authorities where necessary ... [and] international law and frameworks in appropriate ways to support these commitments.”[27]

VIII. Summary

The growing WMD threat and recent proliferation trends require new, more proactive tools to counter proliferation. President Bush identified interdiction as a key tool and launched the PSI to build global support and capabilities. The PSI has established solid diplomatic and operational foundation for interdiction efforts. Over 60 countries support the PSI. Over 30 countries have participated in a series of air, land, and sea interdiction exercises. The United States is working with the other participants on outreach to broaden international support and capabilities.[28]

UNSCR 1540 recognizes all States need to do more to counter proliferation, and calls on States to take cooperative action to prevent the proliferation of WMD.[29]

Weapons of mass destruction—nuclear, biological and chemical—in the possession of hostile States and terrorists represent on of the greatest security challenges facing the international community. President Bush believes that “[i]n the new world we have entered, the only path to peace and security is the path of action.”[30] So long as the actions taken are consistent with the international law of the sea, they pose no threat to the international legal order governing the oceans or to the sovereignty of States in Asia or else where in the world.

APPENDIX I

DRAFT

AGREEMENT
BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF [ .... ]
CONCERNING COOPERATION TO SUPPRESS THE PROLIFERATION OF
WEAPONS OF MASS DESTRUCTION, THEIR DELIVERY SYSTEMS,
AND RELATED MATERIALS BY SEA[31]

Opening

The Government of the United States of America and the Government of [….. ] (hereinafter, “the Parties”);

PREAMBLE

First paragraph

Deeply concerned about the proliferation of weapons of mass destruction (WMD), their delivery systems, and related materials, particularly by sea, as well as the risk that these may fall into the hands of terrorists;

Second paragraph

Recalling the 31 January 1992 United Nations Security Council Presidential statement that proliferation of all WMD constitutes a threat to international peace and security, and underlines the need for Member States of the UN to prevent proliferation;

Commentary

The UNSC Presidential Statement reads as follows:

NOTE BY THE PRESIDENT OF THE SECURITY COUNCIL, S/23500, 31 January 1992. At the conclusion of the 3046th meeting of the Security Council, held at the level of Heads of State and Government on 31 January 1992 in connection with the item entitled "The responsibility of the Security Council in the maintenance of international peace and security", the President of the Security Council, His Excellency Dr. Boutros Boutros-Ghali, made a statement on behalf of the members of the Council. With regard to the issue of disarmament, arms control and weapons of mass destruction, the President of the Security Council stated:

The members of the Council, while fully conscious of the responsibilities of other organs of the United Nations in the fields of disarmament, arms control and non-proliferation, reaffirm the crucial contribution which progress in these areas can make to the maintenance of international peace and security. They express their commitment to take concrete steps to enhance the effectiveness of the United Nations in these areas.

The members of the Council underline the need for all Member States to fulfil their obligations in relation to arms control and disarmament; to prevent the proliferation in all its aspects of all weapons of mass destruction; to avoid excessive and destabilizing accumulations and transfers of arms; and to resolve peacefully in accordance with the Charter any problems concerning these matters threatening or disrupting the maintenance of regional and global stability. They emphasize the importance of the early ratification and implementation by the States concerned of all international and regional arms control arrangements, especially the START and CFE Treaties.

The proliferation of all weapons of mass destruction constitutes a threat to international peace and security. The members of the Council commit themselves to working to prevent the spread of technology related to the research for or production of such weapons and to take appropriate action to that end.

On nuclear proliferation, they note the importance of the decision of many countries to adhere to the Non-Proliferation Treaty and emphasize the integral role in the implementation of that Treaty of fully effective IAEA safeguards, as well as the importance of effective export controls. The members of the Council will take appropriate measures in the case of any violations notified to them by the IAEA.

On chemical weapons, they support the efforts of the Geneva Conference with a view to reaching agreement on the conclusion, by the end of 1992, of a universal convention, including a verification regime, to prohibit chemical weapons.

Third paragraph

Also recalling United Nations Security Council Resolution 1540 (2004), which calls on all States, in accordance with their national legal authorities and legislation and consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials;

Commentary

UN Security Council Resolution 1540 (2004), adopted on 28 April 2004, provides:

The Security Council,

Affirming that proliferation of nuclear, chemical and biological weapons, as well as their means of delivery,* constitutes a threat to international peace and security,

Reaffirming, in this context, the Statement of its President adopted at the Council’s meeting at the level of Heads of State and Government on 31 January 1992 (S/23500), including the need for all Member States to fulfill their obligations in relation to arms control and disarmament and to prevent proliferation in all its aspects of all weapons of mass destruction,

Recalling also that the Statement underlined the need for all Member States to resolve peacefully in accordance with the Charter any problems in that context threatening or disrupting the maintenance of regional and global stability,

Affirming its resolve to take appropriate and effective actions against any threat to international peace and security caused by the proliferation of nuclear, chemical and biological weapons and their means of delivery, in conformity with its primary responsibilities, as provided for in the United Nations Charter,

Affirming its support for the multilateral treaties whose aim is to eliminate or prevent the proliferation of nuclear, chemical or biological weapons and the importance for all States parties to these treaties to implement them fully in order to promote international stability,

Welcoming efforts in this context by multilateral arrangements which contribute to non-proliferation,

Affirming that prevention of proliferation of nuclear, chemical and biological weapons should not hamper international cooperation in materials, equipment and technology for peaceful purposes while goals of peaceful utilization should not be used as a cover for proliferation,

Gravely concerned by the threat of terrorism and the risk that non-State actors* such as those identified in the United Nations list established and maintained by the Committee established under Security Council resolution 1267 and those to whom resolution 1373 applies, may acquire, develop, traffic in or use nuclear, chemical and biological weapons and their means of delivery,

Gravely concerned by the threat of illicit trafficking in nuclear, chemical, or biological weapons and their means of delivery, and related materials,* which adds a new dimension to the issue of proliferation of such weapons and also poses a threat to international peace and security,

Recognizing the need to enhance coordination of efforts on national, subregional, regional and international levels in order to strengthen a global response to this serious challenge and threat to international security,

Recognizing that most States have undertaken binding legal obligations under treaties to which they are parties, or have made other commitments aimed at preventing the proliferation of nuclear, chemical or biological weapons, and have taken effective measures to account for, secure and physically protect sensitive materials, such as those required by the Convention on the Physical Protection of Nuclear Materials and those recommended by the IAEA Code of Conduct on the Safety and Security of Radioactive Sources,

Recognizing further the urgent need for all States to take additional effective measures to prevent the proliferation of nuclear, chemical or biological weapons and their means of delivery,

Encouraging all Member States to implement fully the disarmament treaties and agreements to which they are party,

Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts,

Determined to facilitate henceforth an effective response to global threats in the area of non-proliferation,

Acting under Chapter VII of the Charter of the United Nations,

1. Decides that all States shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery;

2. Decides also that all States, in accordance with their national procedures, shall adopt and enforce appropriate effective laws which prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them;

3. Decides also that all States shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery, including by establishing appropriate controls over related materials and to this end shall:

(a) Develop and maintain appropriate effective measures to account for and secure such items in production, use, storage or transport;

(b) Develop and maintain appropriate effective physical protection measures;

(c) Develop and maintain appropriate effective border controls and law enforcement efforts to detect, deter, prevent and combat, including through international cooperation when necessary, the illicit trafficking and brokering in such items in accordance with their national legal authorities and legislation and consistent with international law;

(d) Establish, develop, review and maintain appropriate effective national export and trans-shipment controls over such items, including appropriate laws and regulations to control export, transit, trans-shipment and re-export and controls on providing funds and services related to such export and trans-shipment such as financing, and transporting that would contribute to proliferation, as well as establishing end-user controls; and establishing and enforcing appropriate criminal or civil penalties for violations of such export control laws and regulations;

4. Decides to establish, in accordance with rule 28 of its provisional rules of procedure, for a period of no longer than two years, a Committee of the Security Council, consisting of all members of the Council, which will, calling as appropriate on other expertise, report to the Security Council for its examination, on the implementation of this resolution, and to this end calls upon States to present a first report no later than six months from the adoption of this resolution to the Committee on steps they have taken or intend to take to implement this resolution;

5. Decides that none of the obligations set forth in this resolution shall be interpreted so as to conflict with or alter the rights and obligations of State Parties to the Nuclear Non-Proliferation Treaty, the Chemical Weapons Convention and the Biological and Toxin Weapons Convention or alter the responsibilities of the International Atomic Energy Agency or the Organization for the Prohibition of Chemical Weapons;

6. Recognizes the utility in implementing this resolution of effective national control lists and calls upon all Member States, when necessary, to pursue at the earliest opportunity the development of such lists;

7. Recognizes that some States may require assistance in implementing the provisions of this resolution within their territories and invites States in a position to do so to offer assistance as appropriate in response to specific requests to the States lacking the legal and regulatory infrastructure, implementation experience and/or resources for fulfilling the above provisions;

8. Calls upon all States:

(a) To promote the universal adoption and full implementation, and, where necessary, strengthening of multilateral treaties to which they are parties, whose aim is to prevent the proliferation of nuclear, biological or chemical weapons;

(b) To adopt national rules and regulations, where it has not yet been done, to ensure compliance with their commitments under the key multilateral nonproliferation treaties;

(c) To renew and fulfil their commitment to multilateral cooperation, in particular within the framework of the International Atomic Energy Agency, the Organization for the Prohibition of Chemical Weapons and the Biological and Toxin Weapons Convention, as important means of pursuing and achieving their common objectives in the area of non-proliferation and of promoting international cooperation for peaceful purposes;

(d) To develop appropriate ways to work with and inform industry and the public regarding their obligations under such laws;

9. Calls upon all States to promote dialogue and cooperation on nonproliferation so as to address the threat posed by proliferation of nuclear, chemical, or biological weapons, and their means of delivery;

10. Further to counter that threat, calls upon all States, in accordance with their national legal authorities and legislation and consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials;

11. Expresses its intention to monitor closely the implementation of this resolution and, at the appropriate level, to take further decisions which may be required to this end;

12. Decides to remain seized of the matter.

___________________________

* Definitions for the purpose of this resolution only:

-- Means of delivery: missiles, rockets and other unmanned systems capable of delivering nuclear, chemical, or biological weapons, that are specially designed for such use.

-- Non-State actor: individual or entity, not acting under the lawful authority of any State in conducting activities which come within the scope of this resolution.

-- Related materials: materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists, which could be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery.

The text of UNSCR 1540 is available on line at http://www.state.gov/t/np/trty/16286.htm and http://www.opcw.org/html/db/cwc/eng/cwc_frameset.html.

The United States is party to the CWC. A list of the parties to the CWC may be found on line at http://www.opcw.org/html/db/members_frameset.html.

Fourth paragraph Second Clause

the Treaty on Nonproliferation of Nuclear Weapons, done at Washington, London and Moscow 1 July 1968; and

Commentary

Among the obligations established by the Treaty on Nonproliferation of Nuclear Weapons (NPT) are the following:

§ Nuclear weapon states (NWS) are not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices, or control over such weapons or devices, directly or indirectly, and not to assist, encourage, or induce any non-nuclear weapon states (NNWS) to manufacture or otherwise acquire them.

§ NNWS are not to receive from any transferor nuclear weapons or other nuclear explosive devices, or control over such weapons or devices directly or indirectly, nor seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.

§ NNWS must accept IAEA safeguards on all source and special fissionable materials in all peaceful nuclear activities within its territory, under its jurisdiction or carried out under its control anywhere.

§ Every NPT Party is obligated not to provide to any NNWS any source or special fissionable material, or any equipment or material especially designed or prepared for the processing, use or production of special fissionable material, unless the source or special fissionable material will be subject to the IAEA safeguards required by the NPT.

§ All Parties are obligated to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials, and scientific and technological information for the peaceful uses of nuclear energy.

The text of the NPT may be found on line at http://www.state.gov/t/np/trty/16281.htm#treaty.

The United States is party to the NPT. A list of the parties to the NPT may be found on line at http://disarmament2.un.org/TreatyStatus.nsf.

Fourth paragraph Third Clause

the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, done at Washington, London and Moscow 10 April 1972;

Commentary

The States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (BWC) are obligated (1) not to develop, produce, stockpile, or otherwise acquire or retain microbial or other biological agents or toxins of types and in quantities that have no justification for prophylactic, protective, or other peaceful purposes; (2) not to develop, produce, stockpile, or otherwise acquire or retain weapons, equipment, or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict; (3) to destroy, or to divert to peaceful purposes (not later than nine months after the entry into force of the Convention) all such agents, toxins, weapons, equipment, and means of delivery; (4) not to transfer to any recipient, and not in any way to assist, encourage, or induce others to manufacture or otherwise acquire any such agents, toxins, weapons, equipment, or means of delivery; (5) to take necessary measures to prohibit and prevent the above activities within their own territories. Although the BWC does not explicitly prohibit “use” of biological weapons, the Final Declaration of the 1996 Treaty Review Conference reaffirmed that “use” is necessarily also considered to be a violation of the Convention. The text of the BWC may be found on line at http://www.state.gov/t/ac/trt/4718.htm.

The United States is party to the BWC. A list of the parties to the BWC may be found on line at http://www.state.gov/t/ac/trt/4718.htm#signatory and http://disarmament2.un.org/TreatyStatus.nsf.

Fifth Paragraph

Further recalling the International Ship and Port Facility Security Code, adopted by the International Maritime Organization on 12 December 2002;

Commentary

The International Ship and Port Facility Security Code (ISPS Code) is a comprehensive set of measures to enhance the security of ships and port facilities, developed in response to the perceived threats to ships and port facilities in the wake of the 9/11 attacks in the United States.

The ISPS Code is implemented through chapter XI-2, Special measures to enhance maritime security, in the annex to the International Convention for the Safety of Life at Sea (SOLAS). The ISPS Code has two parts, one mandatory and one recommendatory.

In essence, the Code takes the approach that ensuring the security of ships and port facilities is a risk management activity and that, to determine what security measures are appropriate, an assessment of the risks must be made in each particular case.

The purpose of the Code is to provide a standardized, consistent framework for evaluating risk, enabling Governments to offset changes in threat with changes in vulnerability for ships and port facilities through determination of appropriate security levels and corresponding security measures.

The United States is a Contracting Party to SOLAS. A list of the parties to SOLAS may be found through the links at http://www.imo.org/home.html.

Sixth Paragraph

Acknowledging the widespread consensus that proliferation and terrorism seriously threaten international peace and security;

Seventh Paragraph

Convinced that trafficking in these items by States and non-state actors of proliferation concern must be stopped;

Eighth Paragraph

Guided by the Statement of Interdiction Principles for the Proliferation Security Initiative;

Commentary

The Statement of Interdiction Principles for the Proliferation Security Initiative, adopted in Paris, 4 September 2003, reads as follows:

PSI participants are committed to the following interdiction principles to establish a more coordinated and effective basis through which to impede and stop shipments of WMD, delivery systems, and related materials flowing to and from states and non-state actors of proliferation concern, consistent with national legal authorities and relevant international law and frameworks, including the UN Security Council. They call on all states concerned with this threat to, international peace and security to join in similarly committing to:

(1) Undertake effective measures, either alone or in concert with other states, for interdicting the transfer or transport of WMD, their delivery systems, and related materials to and from states and non-state actors of proliferation concern. "States or non-state actors of proliferation concern" generally refers to those countries or entities that the PSI participants involved establish should be subject to interdiction activities because they are engaged in proliferation through: (1) efforts to develop or acquire chemical, biological, or nuclear weapons and associated delivery systems; or (2) transfers (either selling, receiving, or facilitating) of WMD, their delivery systems, or related materials.

(2) Adopt streamlined procedures for rapid exchange of relevant information concerning suspected proliferation activity, protecting the confidential character of classified information provided by other states as part of this initiative, dedicate appropriate resources and efforts to interdiction operations and capabilities, and maximize coordination among participants in interdiction efforts.

(3) Review and work to strengthen their relevant national legal authorities where necessary to accomplish these objectives, and work to strengthen when necessary relevant international law and frameworks in appropriate ways to support these commitments.

(4) Take specific actions in support of interdiction efforts regarding cargoes of WMD, their delivery systems, or related materials, to the extent their national legal authorities permit and consistent with their obligations under international law and frameworks, to include:

(a) Not to transport or assist in the transport of any such cargoes to or from states or non-state actors of proliferation concern, and not to allow any persons subject to their jurisdiction to do so.

(b) At their own initiative, or at the request and good cause shown by another state, to take action to board and search any vessel flying their flag in their internal waters or territorial seas, or areas beyond the territorial sea of any other state, that is reasonably suspected of transporting such cargoes to or from states or non-state actors of proliferation concern, and to seize such cargoes that are identified.

(c) To seriously consider providing consent under the appropriate circumstances to the boarding an searching of its own flag vessels by other states, and to the seizure of such WMD-related cargoes in such vessels that may be identified by such states.

(d) To take appropriate actions to (1) stop and/or search in their internal waters, territorial seas, of contiguous zones (when declared) vessels that are reasonably suspected of carrying such cargoes to or from states or non-state actors of proliferation concern and to seize such cargoes that are identified; and (2) to enforce conditions on vessels entering or leaving their ports, internal waters or territorial seas that are reasonably suspected of carrying such cargoes, such as requiring that such vessels be subject to boarding, search, and seizure of such cargoes prior to entry.

(e) At their own initiative or upon the request and good cause shown by another state, to (a) require aircraft that are reasonably suspected of carrying such cargoes to or from states or non-state actors of proliferation concern and that are transiting their airspace to land for inspection and seize any such cargoes that are identified; and/or (b) deny aircraft reasonably suspected of carrying such cargoes transit rights through their airspace in advance of such flights.

(f) If their ports, airfields, or other facilities are used as transshipment points for shipment of such cargoes to or from states or non-state actors of proliferation concern, to inspect vessels, aircraft, or other modes of transport reasonably suspected of carrying such cargoes, and to seize such cargoes that are identified.

The text of the Statement of Interdiction Principles may be found on line at http://www.state.gov/t/np/rls/fs/23764.htm.

Ninth Paragraph

Inspired by the efforts of the International Maritime Organization to improve the effectiveness of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome 10 March 1988;

Commentary

IMO's Legal Committee is reviewing the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988 and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, 1988 (the SUA treaties).

The main purpose of the SUA convention is to ensure that appropriate judicial action is taken against persons committing unlawful acts against ships, which include the seizure of ships by force, acts of violence against persons on board ships that endanger the safe navigation of the ship, and the placing of devices on board a ship which are likely to destroy or damage it. The convention obliges Contracting Governments to either extradite or prosecute alleged offenders. The Protocol provides similar regulations relating to fixed platforms located on the Continental Shelf.

Since April 2002, the Legal Committee has been considering draft protocols to the SUA Convention and Protocol through scheduled meetings and an intercessional Correspondence Group. Most delegations have expressed support for the revision and strengthening of the SUA Convention in order to provide a response to the increasing risks posed to maritime navigation by terrorism. The draft SUA protocol under consideration includes new offenses involving a ship related to WMD, and detailed provisions concerning ship boarding at sea. A diplomatic conference to consider and adopt protocols to the SUA Convention and its Protocol meets at the IMO in London October 10-14, 2005.

The United States is party to the SUA and its protocol. A list of parties to SUA may be found through the links at http://www.imo.org/home.html. The 48 largest merchant ship registries and whether they are party to SUA or its Protocol are listed in Appendix II.

Tenth Paragraph

Reaffirming the importance of customary international law of the sea as reflected in the 1982 United Nations Convention on the Law of the Sea;

Commentary

The text of the LOS Convention may be found on line at http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf. A list of parties to the LOS Convention may be found on line at http://www.un.org/Depts/los/reference_files/status2005.pdf.

The United States awaits Senate advice and consent to accession to the LOS Convention. Although not a Party to the Convention, the United States “accept[s] and act[s] in accordance with the balance of interests relating to traditional uses of the oceans--such as navigation and overflight” as reflected in the Convention. See Statement by the President, Mar. 10, 1983, 19 Weekly Comp. Pres. Doc. 383 (Mar. 14, 1983) reprinted in 22 I.L.M. 464.

Eleventh Paragraph

Committed to cooperation to stop the flow by sea of WMD, their delivery systems, and related materials to or from States or non-state actors of proliferation concern;

Commentary

Each term of art is defined in Article 1.

Have agreed as follows:

Article 1

Definitions

In this Agreement, unless the context otherwise requires:

Paragraph 1

1. “Proliferation by sea” means the transportation by ship of weapons of mass destruction, their delivery systems, and related materials to or from States or non-state actors of proliferation concern.

Commentary

Paragraph 1 is drawn from the chapeau of the PSI Statement of Interdiction Principles.

Paragraph 2

2. “Weapons of mass destruction” (WMD) means nuclear, chemical, biological and radiological weapons.

Commentary

Paragraph 2 is drawn generally from paragraph 1 of UNSCR 1540. The UNSCR formulation does not include radiological weapons. In radiological weapons, radioactive material is dispersed by conventional explosions but not exploding itself. See United Nations Office on Drugs and Crime, available on line at http://www.unodc.org/unodc/terrorism_weapons_mass_destruction_page006.html.

Paragraph 3

3. “Related materials” means materials, equipment and technology, of whatever nature or type, that are related to and destined for use in the development, production, utilization or delivery of WMD.

Commentary

Paragraph 3 is similar but not identical to the note to UNSCR 1540, which provides: “Related materials: materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists, which could be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery.” The major distinction between the definition in this agreement, which is preferred by the United States in this context, is that it does not require reference to myriad external lists to define related materials, but instead leaves to the determination to the discretion of the other party and the United States on a case-by-case basis. In a bilateral agreement, as distinguished from a multilateral instrument, the US views this formulation as a more flexible and practical approach.

Paragraph 4

4. “States or non-state actors of proliferation concern” means those countries or entities that should be subject to interdiction activities because they are or are believed to be engaged in: (1) efforts to develop or acquire WMD or their delivery systems; or (2) trafficking (either selling, receiving, or facilitating) of WMD, their delivery systems, or related materials.

Commentary

The definition of “States or non-state actors of proliferation concern” is taken from paragraph 1 of the Statement of Interdiction Principles. The United States recognizes that the proposed definition differs from that contained in the footnote of UNSCR 1540, which defines “non-State actor” as an “individual or entity, not acting under the lawful authority of any State in conducting activities which come within the scope of this resolution.” The US notes that the UNSCR 1540 definition does not reach State actors engaged in dangerous proliferation activities. The US prefers the definition proffered in the draft text, noting that the flag State would retain the discretion to determine, on a case-by-case basis, whether items or persons aboard its flagged vessel “should be subject to interdiction activities.”

Paragraph 5

5. “Security Force Officials” means:

Commentary

The term “security force officials” is intended to describe those officials who are authorized to board and search suspect vessels.

Paragraph 5(a)

a. for the United States, uniformed or otherwise clearly identifiable members of the United States Coast Guard and the United States Navy, who may be accompanied by clearly identifiable law enforcement officials of the Department of Homeland Security and/or the Department of Justice, and/or other clearly identifiable officials duly authorized by the Government of the United States of America and notified to the Competent Authority of [the other party]; and

Commentary

The US intends PSI boardings to be led by properly trained and qualified officials of the United States Coast Guard and the United States Navy. Coast Guard and Navy officials may be assisted during the boarding by law enforcement officials of the Departments of Homeland Security and/or Justice, which may, among others, include clearly identifiable officers and agents of US Immigration and Customs Enforcement (ICE), US Customs and Border Patrol (CBP), and the Federal Bureau of Investigation (FBI).

Paragraph b

b. for [the other party], uniformed or otherwise clearly identifiable members of the [ ..... ], duly authorized by the Government of [ ..... ] and notified to the Competent Authority of the United States.

Paragraph 6

6. “Security Force vessels” means warships and other vessels of the Parties, or of third States as may be agreed upon by the Parties, on which Security Force Officials of either or both Parties may be embarked, clearly marked and identifiable as being on government service and authorized to that effect, including any vessel and aircraft embarked on or supporting such vessels.

Commentary

LOS Convention, article 29, provides: “For the purposes of this Convention, ‘warship’ means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.” For the United States, U.S. Navy and U.S. Coast Guard vessels are warships.

The US deploys US Coast Guard law enforcement detachments (LEDETs) on third party security force vessels to conduct maritime law enforcement operations. If, for operational reasons, the US desired to conduct a boarding from a 3rd party platform, it would seek agreement from the Competent Authority of [the other party] to do so at the time of making the request for verification of vessel nationality and authorization to board.

The inclusion of embarked vessels and aircraft is intended to accommodate the use of deployed small boats and helicopters, which are often use to deliver boarding teams at sea.

Paragraph 7

7. “Suspect vessel” means a vessel used for commercial or private purposes in respect of which there are reasonable grounds to suspect it is engaged in proliferation by sea.

Commentary

The formulation “reasonable grounds to suspect” is drawn from numerous widely accepted international maritime law enforcement treaties, including LOS Convention, article 110 (“a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity ..., is not justified in boarding it unless there is reasonable ground for suspecting that ....”); UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, art. 17(2) (1988) (“A Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose.”) (available on line at http://www.unodc.org/pdf/convention_1988_en.pdf); Council of Europe, Strasbourg Agreement on Illicit Traffic by Sea, arts. 5-6 (1995) (“A Party which has reasonable grounds to suspect . . . .” and “Where the intervening State has reasonable grounds to suspect ....”) (available on line at http://conventions.coe.int/Treaty/en/Treaties/Html/156.htm); and the Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organized Crime, art. 8 (2000) (“A State Party that has reasonable grounds to suspect that a vessel ....”) (available on line at http://www.unodc.org/pdf/crime/a_res_55/res5525e.pdf).

Paragraph 8

8. “International waters” means all parts of the sea not included in the territorial sea, internal waters and archipelagic waters of a State, consistent with international law.

Commentary

The term “international waters” is used only in the title and first paragraph of Article 4, and refers to waters seaward of territorial sea. The US understands that [ ….. ] claims a territorial sea with a breadth of [twelve (12) nautical miles, as does the US].

Paragraph 9

9. “Competent Authority” means for the United States, the Commandant of the United States Coast Guard (including any officer designated by the Commandant to perform such functions), and for [the other party], […………..]

Commentary

The draft Agreement envisions a framework in which the “Competent Authority” is the entity available around the clock and designated to receive, make, and respond to most requests under the Agreement. See e.g., articles 4, 5, and 15. Based on the respective internal laws, policies, and procedures of the Parties, a “competent authority” may need to consult with or obtain permission from other elements in its Government before taking action in accordance with the Agreement, but the competent authority will always be available for communication and have access to its respective decision-makers. This definition is implemented operationally by Article 11’s requirement for the Parties to exchange specific points of contact for each article contemplating operational activities, and that each point of contact requires the ability to receive notice at all times.

Article 2

Object and Purpose of Agreement

Paragraph 1

1. The object of this Agreement is to promote cooperation between the Parties to enable them to prevent the transportation by ship of WMD, their delivery systems, and related materials.

Paragraph 2

2. The Parties shall carry out their obligations and responsibilities under this Agreement in a manner consistent with the principles of international law pertaining to sovereign equality and territorial integrity of States, and non-intervention in the domestic affairs of other States.

Commentary

Most of the proposed formulation in this paragraph is drawn from the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, art. 2(2) and the UN Convention against Transnational Organized Crime, art. 4(1) (text available on line at http://www.unodc.org/pdf/crime/final_instruments/383e.pdf).

Paragraph 3

3. The Parties shall cooperate to the fullest extent possible, subject to the availability of resources and in compliance with their respective laws.

Commentary

This paragraph creates a mutual obligation “to cooperate to the fullest extent possible,” cabined, however by the practical limitations of available resources and applicable domestic law.

Article 3

Cases of Suspect Vessels

Operations to suppress proliferation by sea pursuant to this Agreement shall be carried out only against suspect vessels claiming nationality in one of the Parties, and against suspect vessels without nationality and suspect vessels assimilated to vessels without nationality.

Commentary

This provision ensures that the Agreement will not be used to conduct random or unfounded boarding operations, but will be employed only to board vessels in respect of which there are reasonable grounds to suspect it is engaged in proliferation by sea. See art. 1(7). If the law of [ ….. ] permits bareboat charters, text that would except them from this class of vessels might read as follows: “and suspect vessels registered under the law of one of the Parties under a bareboat charter notwithstanding an underlying registration in another State not party to this Agreement, but not against a vessel registered under the law of one of the Parties while bareboat chartered in another State not party to this Agreement.”

A vessel that is not properly registered in, and hence not entitled to fly the flag of, any State, is without nationality. A vessel may be deemed to be without nationality (i.e. may be assimilated to a vessel without nationality) because it sails under the flags of two or more States, using them according to convenience (including making a false claim of nationality). See LOS Convention, arts. 91-92.

Article 4

Operations in International Waters

Paragraph 1

1. Authority to Board Suspect Vessels. Whenever the Security Force Officials of one Party (“the requesting Party”) encounter a suspect vessel claiming nationality in the other Party (“the requested Party”) located in international waters, the requesting Party may request through the Competent Authority of the requested Party that it:

Commentary

This provision reflects the concept of exclusive flag State jurisdiction set forth in article 92(1) of the LOS Convention: “Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.”

Paragraph 1 establishes the procedures for confirming claims of vessel nationality and seeking authorization to board suspect vessels seaward of any State’s territorial sea.

Paragraph a

a. confirm the claim of nationality of the requested Party; and

Paragraph b

b. if such claim is confirmed:

Commentary

If the claimed flag State denies the claim, then the vessel would be without nationality and subject to the jurisdiction of any State.

Paragraph b(i)

i. authorize the boarding and search of the suspect vessel, cargo and the persons found on board by Security Force Officials of the requesting Party; and

Paragraph b(ii)

ii. if evidence of proliferation is found, authorize the Security Force Officials of the requesting Party to detain the vessel, cargo and persons on board, pending instructions conveyed through the Competent Authority of the requested Party as to the exercise of jurisdiction in accordance with Article 5 of this Agreement.

Commentary

Once the boarding party finds evidence of proliferation by sea, this subparagraph provides for preventive detention, if authorized by the requested Party, of the suspect vessel, persons and property on board pending expeditious disposition instructions exchanged between the Competent Authorities.

Paragraph 2 first sentence
2. Contents of Requests. Each request shall contain the basis for the suspicion, the geographic position of the vessel, and, if available the name of the suspect vessel, the registration number, the IMO number, home port, the port of origin and destination, and any other identifying information.
Commentary

The US views the proposed content of the request to be sufficient information upon which a flag State may conduct a timely registry check and take a decision with respect to authorizing a boarding.

Paragraph 2 second sentence

If a request is conveyed orally, the requesting Party shall confirm the request in writing by facsimile or e-mail as soon as possible.

Commentary

This clause accommodates situations during which, in the interest of time or operational necessity, competent authorities may make and receive initial requests and responses via telephone or in person, followed up by an appropriate written confirmation using available technology, including fax and e-mail.

Paragraph 2 third sentence

The requested Party shall acknowledge to the Competent Authority of the requesting Party in writing by e-mail or facsimile its receipt of any written or oral request immediately upon receiving it.

Commentary

The requirement to acknowledge receipt of requests is to prevent miscommunication or misalignment of expectations.

Paragraph 3

3. Responding to Requests.

Commentary

This paragraph sets up a format for responding to requests for boarding and search, along with a two hour default – if there is no response from the requested Party within two hours of its receipt of the request, the requesting Party will be deemed to have been authorized to board the suspect vessel for the purpose of inspecting the vessel's documents, questioning the persons on board, and searching the vessel to determine if it is engaged in proliferation by sea.

Paragraph a

a. If the nationality is verified, the requested Party may:

i. decide to conduct the boarding and search with its own Security Force Officials;

ii. authorize the boarding and search by the Security Force Officials of the requesting Party;

iii. decide to conduct the boarding and search together with the requesting Party; or

iv. deny permission to board and search.

Commentary

The provision governing response is predicated upon the claimed flag State’s initial verification of the vessel’s nationality, which does not necessarily include verification of the vessel’s registry.

The practice of some States engaged in maritime law enforcement operations in international waters is to place considerable emphasis on the completion of a registry check prior to granting authorization to board and search. However, since many States (or their designated competent authorities) lack round-the-clock access to their national register of shipping, this registry check requirement is often a significant cause of delay in responding to requests. As a result, a practice has emerged of providing authorization on the operational assumption of a positive outcome to the registry check procedures. This is known by some as the concept of provisional flag-state authorization or presumptive flag-State authority. This practice is based on both the customary and conventional international law of the sea, namely, the rule by which a vessel that makes a false claim to registry is to be regarded as without nationality.

Under the concept of presumptive or provisional flag state authority, completion of a registry check by the claimed flag state is not a prerequisite for the flag state granting permission to take appropriate actions based on a vessel's claim of nationality (flag, oral, or otherwise). Because the status of a vessel claiming the protection of a state can only be either that of a vessel of the claimed flag state or a vessel without nationality, the presumed flag state has the right, if not the responsibility, to determine if a vessel claiming the protection of its flag is entitled to such protection.

While the granting of permission to board and search on the basis of provisional or presumptive flag State authority provides a useful means for expediting the authorization process, it does not negate the need for the actual registry check, nor does it prevent the boarding State from making the determination, upon discovery of applicable conditions, that the vessel is assimilated to a vessel without nationality under international law.

Paragraph b

b. The requested Party shall answer through its Competent Authority requests made for the verification of nationality within two (2) hours of the receipt of such requests.

Commentary

The requirement to answer within two (2) hours is driven by the operational exigencies encountered by vessels conducting boarding operations at sea. Verification of nationality and authorization to board do not constitute in any manner a waiver of flag State jurisdiction over the vessel, cargo, or persons on board.

Paragraph c

c. If the nationality is not verified within the two (2) hours, the requested Party may, through its Competent Authority:

i. nevertheless authorize the boarding and search by the Security Force Officials of the requesting Party; or

ii. refute the claim of the suspect vessel to its nationality.

Commentary

This paragraph reflects the concept of presumptive flag State authority. If the claimed nationality is denied or cannot be verified, then the requesting Party would be justified in either assimilating the vessel to without nationality and/or conducting a right of visit boarding pursuant to Article 110 of the LOS Convention.

Paragraph d

d. If there is no response from the Competent Authority of the requested Party within two (2) hours of its receipt of the request, the requesting Party will be deemed to have been authorized to board the suspect vessel for the purpose of inspecting the vessel’s documents, questioning the persons on board, and searching the vessel to determine whether it is engaged in proliferation by sea.

Commentary

This provision is intended to address those situations in which the requested Party has acknowledged receipt of a request but does not respond within a reasonable time. The US notes that all that is required to “stop the clock” is a response from the requested Party, not necessarily authorization to board.

Paragraph 4

4. Right of Visit. Notwithstanding the foregoing paragraphs of this Article, the Security Force Officials of one Party (“the first Party”) are authorized to board suspect vessels claiming nationality in the other Party that are not flying the flag of the other Party, not displaying any marks of its registration or nationality, and claiming to have no documentation on board the vessel, for the purpose of locating and examining the vessel’s documentation. If documentation or other physical evidence of nationality is located, the foregoing paragraphs of this Article apply. If no documentation or other physical evidence of nationality is available, the other Party will not object to the first Party assimilating the vessel to a ship without nationality in accordance with international law.

Commentary

This paragraph is reflects well-settled customary and conventional international law regarding the right of visit. See LOS Convention article 110:

Right of visit

1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:

(a) the ship is engaged in piracy;

(b) the ship is engaged in the slave trade;

(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;

(d) the ship is without nationality; or

(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.

4. These provisions apply mutatis mutandis to military aircraft.

5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service.

Paragraph 5

5. Use of Force. The authorization to board, search and detain includes the authority to use force in accordance with Article 9 of this Agreement.

Commentary

This provision makes clear that the Security Forces may use reasonable force when carrying out appropriate activities pursuant to the Agreement, and that the principles governing the use of force reside in Article 9.

Paragraph 6

6. Indicia of Authority. Security Force vessels of a Party operating with the authorization of the other Party pursuant to this Article shall, during such operations, also fly, in the case of the United States of America, the flag of [ ….. ], and in the case of [ ….. ], the United States Coast Guard ensign.

Commentary

This provision is designed to indicate to the suspect ship that the boarding team is authorized by the flag State to conduct the boarding.

Paragraph 7

7. Authority to Detain Suspect Vessels. If evidence of proliferation by sea is found, the Security Force Officials of the first Party may detain the vessel, cargo, and persons on board pending expeditious disposition instructions from the other Party.

Paragraph 8

8. Shipboarding Otherwise in Accordance with International Law. This Agreement does not limit the right of either Party to conduct boardings of vessels or other activities consistent with international law whether based, inter alia, on the right of visit, the rendering of assistance to persons, vessels, and property in distress or peril, the consent of the vessel master, or an authorization from the flag or coastal State.

Commentary

This provision preserves the ability of the Parties to conduct boardings based on other recognized legal bases.

Article 5

Jurisdiction over Detained Vessels

Paragraph 1

1. Jurisdiction of the Parties. In all cases covered by Article 4 concerning the vessels of a Party located seaward of any State’s territorial sea, that Party shall have the primary right to exercise jurisdiction over a detained vessel, cargo and/or persons on board (including seizure, forfeiture, arrest, and prosecution), provided, however, that the Party with the right to exercise primary jurisdiction may, subject to its Constitution and laws, waive its primary right to exercise jurisdiction and authorize the enforcement of the other Party’s law against the vessel, cargo and/or persons on board.

Commentary

Generally, this provision invokes the concept of exclusive flag State jurisdiction, subject to the right of waiver if available to the flag State Party.

Paragraph 2

2. Jurisdiction in the contiguous zone of a Party. In cases arising in the contiguous zone claimed by a Party, not involving suspect vessels fleeing from the waters of that Party or suspect vessels claiming the nationality of that Party, in which both Parties have the authority to exercise jurisdiction to prosecute, the Party which conducts the boarding and search shall have the right to exercise jurisdiction.

Commentary

Pursuant to Articles 33 and 111(1) of the LOS Convention, this paragraph provides a rule of jurisdiction for cases arising in the contiguous zone of a Party. The United States claim a contiguous zone between 12 and 24 nautical miles from the baseline from which its territorial sea is measured. The maritime claims of States may be found on line at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/index.htm.

Article 33 provides:

Contiguous zone

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

(b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

Article 111(1) provides:

1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established.

Paragraph 3

3. Disposition Instructions. Instructions as to the exercise of jurisdiction pursuant to paragraphs 1 and 2 of this Article shall be given without delay through the Competent Authorities.

Commentary

Article 5(3) provides for immediate consultation between the competent authorities in order to determine jurisdiction in appropriate cases. Immediate consultation is required due to the operational exigencies of at-sea detentions and boarding operations.

Paragraph 4

4. Form of waiver. Where permitted by its Constitution and laws, waiver of jurisdiction may be granted verbally, but as soon as possible it shall be recorded in a written note from the Competent Authority and be processed through the appropriate diplomatic channel, without prejudice to the immediate exercise of jurisdiction over the suspect vessel by the other Party.

Commentary

Where waiver is permitted by the laws of the flag State Party, Article 5(4) reflects the operational exigencies of at-sea boarding operations by allowing for immediate action to affect the exercise of jurisdiction upon oral authorization, provided the oral authorization is followed by a written waiver via the diplomatic channel.

Article 6

Exchange of Information and Notification of

Results of Actions of the Security Forces

Paragraph 1

1. Exchange of Operational Information. The Competent Authorities of both Parties shall endeavor to exchange operational information on the detection and location of suspect vessels and shall maintain communication with each other as necessary to carry out the purpose of this Agreement.

Commentary

Article 6(1) is intended to facilitate the exchange of operational information on the detection and location of suspect vessels. Depending on how the operations of the respective Parties are structured, such communications may occur between the Competent Authorities, Security Force Officials, or both. This draft proposes the exchange occur between the Competent Authorities of the Parties.

Paragraph 2

2. Notification of Results. A Party conducting a boarding and search pursuant to this Agreement shall promptly notify the other Party of the results thereof through their Competent Authorities.

Commentary

This paragraph creates an obligation for the boarding Party to promptly (US practice is to report immediately upon the conclusion of the boarding) report to the flag State the results of every boarding conducted under the Agreement.

Paragraph 3

3. Status Reports. The relevant Party, in compliance with its laws, shall timely report to the other Party, through their Competent Authorities, on the status of all investigations, prosecutions and judicial proceedings and other actions and processes, arising out of the application of this Agreement.

Commentary

Article 6(3), as distinguished from paragraph 2, is intended to address information arising out of post-boarding proceedings, including investigations and trials.

Article 7

Conduct of Security Force Officials

Paragraph 1

1. Compliance with Law and Practices. Each Party shall ensure that its Security Force Officials, when conducting boardings and searches pursuant to this Agreement, act in accordance with its applicable national laws and policies and with international law and accepted international practices.

Commentary

Article 7(1) requires boarding teams to comply with their national laws and policies, which should be consistent with international maritime law enforcement practices. The U.S. Coast Guard Maritime Law Enforcement Manual sets forth applicable US law and policy. The text is available on line at http://www.uscg.mil/hq/g-o/g-opl/MLEM%20FOIA%20-%20final.pdf.

Paragraph 2

2. Boarding and Search Teams.

a. Security Force Officials from Security Force vessels shall carry out boardings and searches pursuant to this Agreement, and may be assisted by crew members from such vessels, including the vessels of third States as agreed between the Parties.

Commentary

Article 7(2)(a) supports the operational necessities arising from worldwide efforts to suppress proliferation by sea. This provision allows for boarding operations to be conducted by designated Security Force Officials deploying from 1) Security Force vessels, 2) vessels and aircraft embarked on or otherwise supporting Security Force vessels, and 3) vessels and aircraft of third States as agreed between the Parties. A boarding Party desiring to board from a 3rd Party platform would seek authorization from the requested Party through the request process set forth in Article 4.

Paragraph 2(b)

b. The boarding and search teams may operate from Security Force vessels of the Parties and from such vessels of other States, according to arrangements between the Party conducting the operation and the State providing the vessel and notified to the other Party.

Commentary

Article 7(2)(b) recognizes that the boarding Party may make arrangements with 3rd parties to operate from 3rd party platforms, and that notice of such arrangements should be given to the flag State Party.

Paragraph c

c. The boarding and search teams may carry arms.

Commentary

US security force officials carry standard semi-automatic side arms and non-lethal weapons. If the security situation warrants, boarding officers may also carry riot shot guns and other long arms.

Article 8

Safeguards

1. Where a Party takes measures against a vessel in accordance with this Agreement, it shall:

a. take due account of the need not to endanger the safety of life at sea;

b. take due account of the security of the vessel and its cargo;

c. not prejudice the commercial or legal interests of the Flag State;

d. ensure within available means, that any measure taken with regard to the vessel is environmentally sound under the circumstances;

e. ensure that persons on board are afforded the protections, rights and guarantees provided by international law and the boarding State’s law and regulations;

f. ensure the master of the vessel is, or has been, afforded the opportunity to contact the vessels’ owner, manager or Flag State at the earliest opportunity.

2. Reasonable efforts shall be taken to avoid a vessel being unduly detained or delayed.

Commentary

Much of Article 8 is taken from draft SUA Article 8bis 8 which in turn is drawn from Articles 15 and 17(5) of the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) (the US is party), and Article 9 of the Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organized Crime (TOC).

Article 17(5) of the 1988 Drug Convention provides: “Where action is taken pursuant to this article, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State.”

Article 9 of the TOC provides:

Safeguard clauses

1. Where a State Party takes measures against a vessel in accordance with article 8 of this Protocol, it shall:

(a) Ensure the safety and humane treatment of the persons on board;

(b) Take due account of the need not to endanger the security of the vessel or its cargo;

(c) Take due account of the need not to prejudice the commercial or legal interests of the flag State or any other interested State;

(d) Ensure, within available means, that any measure taken with regard to the vessel is environmentally sound.

Articles 5 and 6 of the Council of Europe, Strasbourg Agreement on Illicit Traffic by Sea (1995) provide:

1. In the application of this Agreement, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and cargo and not to prejudice any commercial or legal interest. In particular, they shall take into account:

a. the dangers involved in boarding a vessel at sea, and give consideration to whether this could be more safely done at the vessel's next port of call;

b. the need to minimise any interference with the legitimate commercial activities of a vessel;

c. the need to avoid unduly detaining or delaying a vessel;

d. the need to restrict the use of force to the minimum necessary to ensure compliance with the instructions of the intervening State.

2. The use of firearms against, or on, the vessel shall be reported as soon as possible to the flag State.

3. The death, or injury, of any person aboard the vessel shall be reported as soon as possible to the flag State. The authorities of the intervening State shall fully co-operate with the authorities of the flag State in any investigation the flag State may hold into any such death or injury.

Article 9

Use of Force

Paragraph 1

1. Rules. When carrying out the authorized actions under this Article, the use of force shall be avoided except when necessary to ensure the safety of its officials and persons on board, or where the officials are obstructed in the execution of the authorized actions. Any use of force pursuant to this Article shall not exceed the minimum degree of force which is necessary and reasonable in the circumstances.

Commentary

Article 9(1) reflects the most recent consensus text achieved during SUA negotiations at IMO and requires boarding teams to comply with their national law and policy regarding use of force, as well as applicable international law. The US notes that conventional international law provides little specific guidance regarding the use of force while conducting maritime law enforcement. The 1958 High Seas Convention, 13 UST 2312, TIAS 5200, 450 UNTS 82, the LOS Convention, and the 1988 Vienna Drug Convention all lack specific provisions to regulate the use of force when conducting a boarding pursuant to each agreement. The 1999 decision of the International Tribunal for the Law of the Sea in the case of the M/V Saiga (No. 2) is instructive and paragraph 155 of the decision reflects the well-accepted principles of reasonableness and necessity: “the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary under the circumstances.” (The text of this decision may be found on line at http://www.itlos.org/start2_en.html.)

Article 22(f) of the 1982 UN Straddling Stocks Convention is also instructive, binding Parties conducting inspections under this Convention to “avoid the use of force except when and to the degree necessary to ensure the safety of the inspectors and where the inspectors are obstructed in the execution of their duties.” (The text of the Straddling Stocks Convention may be found on line at http://www.un.org/Depts/los/convention_agreements/texts/fish_stocks_agreement/CONF164_37.htm.)

Citing the Straddling Stocks Convention, the M/V Saiga court observed:

These principles have been followed over the years in law enforcement operations at sea. The normal practice used to stop a ship at sea is first to give an auditory or visual signal to stop, using internationally recognized signals. Where this does not succeed, a variety of actions may be taken, including the firing of shots across the bows of the ship. It is only after the appropriate actions fail that the pursuing vessel may, as a last resort, use force. Even then, appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered (S.S. “I’m Alone” case (Canada/United States, 1935), U.N.R.I.A.A., Vol. III, p.1609; The Red Crusader case (Commission of Enquiry, Denmark - United Kingdom, 1962), I.L.R., Vol. 35, p.485). The basic principle concerning the use of force in the arrest of a ship at sea has been reaffirmed by the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Migratory Fish Stocks.

Paragraph 2

2. Self-defense. Nothing in this Agreement shall impair the exercise of the inherent right of self-defense by Security Force or other officials of either Party.

Article 10

Exchange and Knowledge of Laws and Policies of Other Party

Paragraph 1

1. Exchange of Information. To facilitate implementation of this Agreement, each Party shall ensure the other Party is fully informed of its respective applicable laws and policies, particularly those pertaining to the use of force.

Commentary

Chapter 4 of the U.S. Coast Guard Maritime Law Enforcement Manual contains the Coast Guard’s use of force policy.

Paragraph 2

2. Knowledge. Each Party shall ensure that its Security Force Officials are knowledgeable concerning the applicable laws and policies in accordance with this Agreement.

Article 11

Points of Contact

1. Identification. Each Party shall inform the other Party, and keep current, the points of contact for communication, decision and instructions under Articles 4 and 5, and notifications under Articles 6 and 16 of this Agreement. Such information shall be updated by and exchanged between the Competent Authorities.

2. Availability. The Parties shall ensure that the points of contact have the capability to receive, process and respond to requests and reports at any time.

Commentary

The US envisions an exchange of letters setting forth the requisite points of contact, which would be subject to periodic updates between the Competent Authorities. The US notes that the effectiveness of this Agreement turns in large part on compliance with this provision, which requires a commitment to receive, process and respond to requests and reports at any time.

Article 12

Disposition of Seized Property

1. Assets seized in consequence of operations undertaken on board vessels subject to the jurisdiction of [the other party] pursuant to this Agreement, shall be disposed of in accordance with the laws of [that other party].

2. Assets seized in consequence of operations undertaken on board vessels subject to the jurisdiction of the United States pursuant to this Agreement, shall be disposed of in accordance with the laws of the United States.

3. To the extent permitted by its laws and upon such terms as it deems appropriate, the seizing Party may, in any case, transfer forfeited assets or proceeds of their sale to the other Party. Each transfer generally will reflect the contribution of the other Party to facilitating or effecting the forfeiture of such assets or proceeds.

Commentary

Article 12 provides that the disposition of seized property is subject to the laws of the Party exercising jurisdiction, including that Party’s laws regarding equitable sharing of seized property and proceeds.

Article 13

Claims

Paragraph 1

1. Injury or Loss of Life. Any claim for injury to or loss of life of a Security Force Official of a Party while carrying out operations arising from this Agreement shall normally be resolved in accordance with the laws of that Party.

Commentary

Article 13(1) establishes that claims arising from the death or injury of a Party’s security force official shall be resolved in accordance with the law of that Party.

Paragraph 2

2. Other Claims. Any other claim submitted for damage, harm, injury, death or loss resulting from an operation carried out by a Party under this Agreement shall be resolved in accordance with the domestic law of that Party, and in a manner consistent with international law.

Commentary

Article 13(2) establishes that claims other than those arising from the death or injury of a Party’s security force official shall be resolved in accordance with the law of Party conducting the boarding and in a manner consistent with applicable international law.

U.S. law enforcement activities that result in damage to private property or injury to private persons may result in a claim for compensation from the United States Government. The United States, as a matter of policy, promptly pays all meritorious claims for property damage or personal injury resulting from such activities.

The U.S. Navy and Coast Guard have offices responsible for adjudicating all tort claims within admiralty jurisdiction involving the operation of their respective vessels, personnel or property. Both Services have authority to settle admiralty claims for damage caused by their respective vessels or other property and maritime torts committed by their respective agents or employees. This authority is subject to the caveat that legal liability must exist and the case must not be in litigation.

There is no particular form or format necessary to submit an admiralty claim. The claimant should fully explain the facts underlying the claim and justify the amount claimed by including relevant documents, charts, diagrams, and photographs, as well as repair or replacement estimates, surveys, receipts, or invoices. Claimants may also initiate a claim by filling out a simple two page form (Standard Form 95) and presenting it to the Commanding Officer of any United States Coast Guard unit, to the military attaché of any United States embassy or consulate, or to the Commanding Officer of any unit of the armed forces of the United States. Such forms are available through the United States Coast Guard and United States Navy, including units that conduct boardings and searches of suspect vessels pursuant to the Agreement, as well as the United States Embassy in [ ..... ].

After administrative investigation and review by the Government of the United States of America, the claim, if merited, may be paid. If the parties cannot agree to settle the claim, the claimant retains the right to seek available relief in United States federal court. Suit for a maritime claim must be brought within two years after the cause of action accrues.

The relevant US law and regulations may be found at See 46 US Code Appendix sec. 745 (Suits in Admiralty Act), 46 US Code Appendix sec. 781 (Public Vessels Act), 32 Code of Federal Regulations 752 (Navy), 33 Code of Federal Regulations Part 25 (Coast Guard), which are available on line through http://thomas.loc.gov.

Paragraph 3

3. Consultation. If any loss, injury or death is suffered as a result of any action taken by the Security Force Officials of one Party in contravention of this Agreement, or any improper or unreasonable action is taken by a Party pursuant thereto, the Parties shall, without prejudice to any other legal rights which may be available, consult at the request of either Party to resolve the matter and decide any questions relating to compensation or payment.

Commentary

In accordance with Article 13(3), the claims process described above does not prejudice the ability of either Party to the Agreement to request through the diplomatic channel, consultations to decide any questions relating to compensation or payment with respect to a specific matter.

Article 14

Disputes and Consultations

1. Disputes. Disputes arising from the interpretation or implementation of this Agreement shall be settled by mutual agreement of the Parties.

2. Evaluation of Implementation. The Parties agree to consult as necessary to evaluate the implementation of this Agreement and to consider enhancing its effectiveness. The evaluation shall be carried out at least once a year.

3. Resolving Difficulties. In case a difficulty arises concerning the operation of this Agreement, either Party may request, through the Competent Authorities, consultations with the other Party to resolve the matter.

Article 15

Effect on Rights, Privileges and Legal Positions

Nothing in this Agreement:

Paragraph a

a. is intended to alter the rights and privileges due any individual in any administrative or judicial proceeding;

Commentary

Article 15(a) reflects a well-settled principle of international law that this is an Agreement between sovereign States, which does not order relations vis á vis any individual non-State actor.

Paragraph b

. shall prejudice the position of either Party with regard to international law of the sea, or affect the territorial or maritime boundaries or claims of either Party, as between them or with third States.

Article 16

Cooperation and Assistance

Paragraph 1

1. The Competent Authority of one Party may request, and the Competent Authority of the other Party may authorize, Security Force Officials to provide technical assistance, such as specialized assistance in the conduct of search of suspect vessels, for the boarding and search of suspect vessels located in the territory or waters of the requesting Party.

Commentary

Article 16(1) is intended to permit assistance in search and seizure on a case-by-case basis in matters arising in the territory and territorial waters of a Party. Such matters may include customs and border searches of suspect vessels and the use of specialized detection equipment.

Paragraph 2

2. Nothing in this Agreement precludes a Party from authorizing the other Party to suppress proliferation in its territory, waters or airspace, or to take action involving suspect vessels or aircraft claiming its nationality, or from providing other forms of cooperation to suppress proliferation.

Commentary

Article 16(2) is intended to ensure that the Agreement is not misconstrued as limiting other forms of cooperation to suppress proliferation as may be agreed upon by the Parties.

Article 17

Entry into Force and Duration

Paragraph 1

1. Entry into Force. This Agreement shall enter into force upon an exchange of notes indicating that the necessary internal procedures of each Party have been completed.

Commentary

The US has determined that it may bring this agreement into force upon signature. If the other party is able to bring the agreement into force upon signature, then paragraph 2 on provisional application is unnecessary and would be omitted.

Paragraph 2

2. Provisional Application. Beginning on the date of signature of this Agreement, the Parties shall, to the extent permitted by their respective national laws and regulations, apply it provisionally. Either Party may discontinue provisional application at any time. Each Party shall notify the other Party immediately of any constraints or limitations on provisional application, of any changes to such constraints or limitations, and upon discontinuation of provisional application.

Commentary

If the Agreement may not enter into force on signature, but rather after the necessary domestic requirements are completed by the other party, this provision would enable, pending its entry into force and if permitted under the domestic law of the other party, the agreement to be provisionally applied, pursuant to the Vienna Convention on the Law of Treaties (VCLT) article 25, which provides:

Article 25

Provisional application

1. A treaty or a part of a treaty is applied provisionally pending its entry into force if:

(a) the treaty itself so provides; or

(b) the negotiating States have in some other manner so agreed.

2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.

The text of the VCLT may be found on line at http://www.un.org/law/ilc/texts/treatfra.htm.

Paragraph 3

3. Termination. This Agreement may be terminated by either Party upon written notification of such termination to the other Party through the appropriate diplomatic channel. Such termination shall take effect six months from the date of such notification.

Paragraph 4

4. Continuation of Actions Taken. This Agreement shall continue to apply after termination with respect to any administrative or judicial proceedings regarding actions that occurred during the time the Agreement was in force.

Commentary

The Agreement may be terminated on one year’s written notice, but termination does not affect pending administrative or judicial proceedings, or a proceeding arising from conduct occurring while the Agreement was in force.

Article 18

Rights for Third States

1. The Parties agree that the Government of [.....] may extend, mutatis mutandis, all rights concerning suspect vessels claiming its nationality under the present Agreement to such third States as it may deem appropriate, on the understanding that such third States shall likewise comply with all conditions set forth in the present Agreement for the exercise of such rights, and subject to agreement by that Party and such third States on the designation of points of contact in accordance with Article 11.

2. Such third States shall enjoy rights and be subject to all conditions governing their exercise as set forth in paragraph 1 of this Article effective on the date of a notification by the third State to that Party that it will comply with the conditions for the exercise of those rights.

3. Such rights shall be revocable by that Party or the third State in writing. Such rights shall be revoked, and the conditions governing their exercise shall cease to apply, effective on the date of notification.

4. Such rights shall be subject to modification by mutual concurrence in writing of that Party and the third State. Upon establishment of such mutual written concurrence by that Party and the third State in question, such rights shall be modified effective on the date agreed between that Party and the third State.

Commentary

Article 18 is intended to provide the other party, if it wishes to and can do so consistent with its domestic law, with an economic and efficient means of substituting other potential boarding State Parties for the United States in appropriate circumstances. This Article has the advantage of not requiring an extensive series of bilateral negotiations; instead, the other party would be able to permit, at its discretion, other States to exercise the rights and obligations of the US under the existing Agreement. Such rights and obligations could be modified as might be agreed upon between the other party and the other States. The US understands that such a provision might be helpful to other potential PSI boarding States and to the other party.

This Article is consistent with Section 5 of the Vienna Convention on the Law of Treaties, which provides:

Article 34

General rule regarding third States

A treaty does not create either obligations or rights for a third State without its consent.

Article 35

Treaties providing for obligations for third States

An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.

Article 36

Treaties providing for rights for third States

1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides.

2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty.

Article 37

Revocation or modification of obligations or rights of third States

1. When an obligation has arisen for a third State in conformity with article 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is established that they had otherwise agreed.

2. When a right has arisen for a third State in conformity with article 36, the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third State.

Article 38

Rules in a treaty becoming binding on third States through international custom

Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.


APPENDIX II

LARGEST MERCHANT VESSEL REGISTRIES

as of February 10, 2005

by number of ships (100 or more) 1,000 GRT or over

Sources: CIA World Fact Book, available at http://www.odci.gov/cia/publications/factbook/fields/2108.html

and IMO, available at www.imo.org

SUA[32]

  1. Panama[33] total: 4,833 ships 122,960,929 GRT/183,615,337 DWT Y Y
  1. China total: 1,850 ships 18,724,653 GRT/27,749,784 DWT Y Y
  1. Liberia[34] total: 1,449 ships 50,555,752 GRT/79,125,329 DWT Y Y
  1. Malta total: 1,176 ships 25,102,401 GRT/41,176,791 DWT Y Y
  1. Cyprus total: 1,066 ships 22,016,374 GRT/35,760,004 DWT Y Y
  1. Bahamas total: 1,035 ships 31,631,252 GRT/43,025,977 DWT N N
  1. Russia* total: 958 ships 4,521,472 GRT/5,505,118 DWT Y Y
  1. Singapore* total: 900 ships 23,065,290 GRT/36,393,317 DWT Y N
  1. Antigua &

Barbuda total: 867 ships 5,873,626 GRT/7,683,143 DWT N N

  1. Greece* total: 793 ships 30,186,624 GRT/52,943,968 DWT Y Y
  1. Indonesia total: 718 ships 3,192,847 GRT/4,319,739 DWT N N

12. St. Vincent & The

Grenadines total: 704 ships 5,967,418 GRT/9,041,023 DWT Y Y

13. Norway* total: 693 ships 18,820,495 GRT/27,449,456 DWT Y Y

14. Hong Kong total: 663 ships 20,478,042 GRT/34,554,455 DWT N N

15. Netherlands* total: 635 ships 4,796,460 GRT/5,212,557 DWT Y Y

16. Japan* total: 568 ships 10,149,196 GRT/12,680,544 DWT Y Y

17. Korea, South total: 535 ships 5,978,949 GRT/9,761,699 DWT Y Y

18. Turkey * total: 508 ships 4,666,895 GRT/7,311,504 DWT Y Y

19. Italy* total: 475 ships 8,970,017 GRT/10,354,685 DWT Y Y

20. Cambodia total: 467 ships 1,913,910 GRT/2,713,967 DWT Y Y

21. United States* total: 466 ships 12,436,658 GRT/14,630,116 DWT Y Y

22. Marshall

Islands[35] total: 420 ships 16,954,092 GRT/28,176,762 DWT Y Y

23. Philippines total: 385 ships 4,524,259 GRT/6,437,171 DWT Y Y

24. United

Kingdom* total: 384 ships 9,181,284 GRT/9,566,275 DWT Y Y

25. Malaysia total: 360 ships 5,389,397 GRT/7,539,178 DWT N N

26. Thailand* total: 339 ships 2,038,597 GRT/3,104,712 DWT N N

27. Belize total: 336 ships 1,015,270 GRT/1,336,890 DWT N N

28. India total: 306 ships 6,555,507 GRT/11,069,791 DWT Y Y

29. Germany* total: 278 ships 5,721,495 GRT/6,810,631 DWT Y Y

30. Denmark* total: 276 ships 6,952,473 GRT/9,030,444 DWT Y Y

31. Honduras total: 238 ships 598,600 GRT/616,158 DWT N N

32. Man, Isle of total: 226 ships 6,055,436 GRT/9,972,459 DWT Y Y

33. Korea, North total: 203 ships 921,577 GRT/1,339,929 DWT N N

34. Vietnam total: 194 ships 1,170,621 GRT/1,798,376 DWT Y Y

35. Sweden total: 178 ships 2,702,763 GRT/1,884,570 DWT Y Y

36. Netherlands

Antilles total: 162 ships 1,317,007 GRT/1,668,499 DWT Y Y

37. Egypt total: 159 ships 1,194,696 GRT/1,754,815 DWT Y Y

38. Brazil total: 151 ships 2,961,431 GRT/4,725,267 DWT N N

39. Spain* total: 149 ships 1,740,974 GRT/2,157,551 DWT Y Y

40. Georgia total: 144 ships 855,908 GRT/1,288,812 DWT N N

41. Ukraine total: 140 ships 675,904 GRT/709,802 DWT Y Y

42. Cayman

Islands total: 137 ships 2,827,837 GRT/4,555,974 DWT UNK

43. Iran total: 134 ships 4,715,242 GRT/8,240,069 DWT N N

44. Gibraltar total: 133 ships 980,636 GRT/1,254,661 DWT UNK

45. Taiwan total: 130 ships 3,417,768 GRT/5,617,318 DWT N/A

46. Portugal* total: 122 ships 872,557 GRT/1,236,025 DWT Y Y

47. Syria total: 122 ships 446,981 GRT/636,620 DWT Y Y

48. Canada * total: 119 ships 1,784,229 GRT/2,657,499 DWT Y Y

__________________

* Participant in PSI Operational Experts Group.



[1] The text of this paper expands on and updates a presentation by Patricia McNerney, Office of the Under Secretary of State for Arms Control and International Security Affairs, at the U.S. Naval War College in September 2004. Errors and omissions in the paper are the responsibility of the author.

[2] For details see Roach, “Initiative to enhance maritime security at sea,” 28 Marine Policy 41, 53-54 (2004) and Carla Anne Robbins, “The UN: Searching for Relevance: Operation Bypass: Why U.S. Gave U.N. No Role in Plan to Halt Arms Ships,” Wall St. J., Oct. 21, 2003, A1, available on line at 2003 WL-WSJ 3983257.

[3] The text of the “National Strategy to Combat Weapons of Mass Destruction” is available on line at http://www.state.gov/documents/organization/16092.pdf.

[4] “Remarks by the President to the People of Poland, Wawel Royal Castle, Krakow, Poland, May 31, 2003,” text available on line at http://www.whitehouse.gov/news/releases/2003/05/20030531-3.html.

[5] See the statement of the Chairman of the first meeting of the PSI participants held in Madrid, Spain on June 12, 2003, available on line at http://www.state.gov/t/np/rls/other/25382.htm.

[6] The text of the Statement of Interdiction Principles is available on line at http://www.state.gov/t/np/rls/fs/23764.htm and http://www.state.gov/t/np/rls/other/34726.htm. See also the statement of the Chairman of the third meeting of the PSI participants held in Paris, September 3-4, 2004, available on line at http://www.state.gov/t/np/rls/other/25425.htm.

[7] The text of the Chairman’s statement at this first anniversary meeting, June 1, 2004, is available on line at http://www.state.gov/t/np/rls/other/33208.htm.

[8] This paper does not address those aspects of PSI dealing with proliferation by air and other modes of transport.

[9] Statement of the Chairman of the second meeting of PSI participants held at Brisbane, Australia July 9-10, 2003, available on line at http://www.state.gov/t/np/rls/other/25377.htm.

[10] Remarks of John R. Bolton, Under Secretary of State for Arms Control and International Security Affairs, “Stopping the Spread of Weapons of Mass Destruction in the Asian-Pacific Region: The Role of the Proliferation Security Initiative,” Tokyo, October 27, 2004, available on line at http://www.state.gov/t/us/rm/37480.htm.

[11] Remarks of John R. Bolton, Under Secretary of State for Arms Control and International Security Affairs, at PSI meeting in Paris September 4, 2003, available on line at http://www.state.gov/t/us/rm/23801.htm.

[12] Statement of Interdiction Principles, para. 4(a).

[13] Id., para. 4(b).

[14] Id., para. 4(c).

[15] Id., para. 4(d)(1).

[16] Id., para. 4(d)(2).

[17] Id., para. 4(f).

[18] The text of each agreement is available on line at http://state.gov/t/np/c12386.htm.

[19] The 48 largest registries by number of ships are listed in Appendix II.

[20] A comprehensive analysis of these agreements may be found in Michael Byers, “Policing the High Seas: The Proliferation Security Initiative,” 98 AJIL 526 (2004).

[21] Statement of Interdiction Principles, para. 2.

[22] See U.S. Department of State Bureau of Nonproliferation Fact Sheet, “Japanese Regional Proliferation Security Initiative (PSI) Maritime Interdiction Exercise (Team Samurai ’04)”, October 22, 2004, available on line at http://www.state.gov/t/np/rls/fs/37371.htm.

[23] U.S. Department of State Bureau of Nonproliferation, “Proliferation Security Initiative Calendar of Events,” available on line at http://state.gov/t/np/c12684.htm. See also U.S. Department of State Bureau of Nonproliferation Media Note, “U.S.-Hosted Proliferation Security Initiative (PSI) Maritime Interdiction Exercise (Chokepoint ’04)”, Nov. 9, 2004, available on line at http://www.state.gov/r/pa/prs/ps/2004/37965.htm.

[24] See John R. Bolton, Under Secretary of State for Arms Control and International Security Affairs Press Conference on PSI, Krakow, May 31, 2004, available on line at http://www.state.gov/t/us/rm/33556.htm, and William R. Hawkins, “Interdict WMD Smugglers at Sea,” U.S. Naval Institute Proceedings, Dec. 2004, at 49-52, available on line at http://www.military.com/NewContent/0%2C13190%2CNI_1204_Sea-P1%2C00.html.

[25] For an analysis of the A.Q. Kahn network, see William J. Broad, David E. Sanger and Raymond Bonner, “A Tale of Nuclear Proliferation: How Pakistani Built His Network, New York Times, Feb. 12, 2004, at A1.

[26] The text of UNSCR 1540 is available on line at http://disarmament2.un.org/Committee1540/Res1540(E).pdf.

[27] U.S. State Department Bureau of Nonproliferation Fact Sheet, “Proliferation Security Initiative Frequently Asked Questions (FAQ),” January 11, 2005, available on line at http://www.state.gov/t/np/rls/fs/32725.htm.

[28] It should be noted that the recent report of the UN Secretary-General’s High-level Panel on Threats, Challenges and Change stated:

Recent experience of the activities of the A.Q. Kahn network has demonstrated the need for and the value of measures taken to interdict the illicit and clandestine trade in components for nuclear programmes. This problem is currently being addressed on a voluntary basis by the proliferation Security Initiative. We believe that all States should be encouraged to join this voluntary initiative.

“A More Secure World: Our Shared Responsibility: Report of the High-level Panel on Threats, Challenges and Change,” 1 December 2004, on line at www.un.org/secureworld and annexed to UN doc. A/59/565, at 43, para. 132, 2 Dec. 2004, available on line at http://daccessdds.un.org/doc/UNDOC/GEN/N04/602/31/PDF/N0460231.pdf?OpenElement (emphasis in the original). In his address to the closing plenary of the International Summit on Democracy, Terrorism and Security, delivered on March 10, 2005 in Madrid, Spain, Secretary-General Kofi Annan said “I applaud the efforts of the Proliferation Security Initiative to fill a gap in our defences.” UN Press Release SG/SM/9757, March 10, 2005, available on line at http://www.un.org/News/Press/docs?2005/sgsm9757.doc.htm. See also the PSI website maintained by Canada at http://www.proliferationsecurity.info.

[29] The United States Report to the Nonproliferation Committee--Efforts Regarding United Nations Security Council Resolution 1540, Sept. 27, 2004, may be found on line at http://www.state.gov/t/np/rls/37375.htm. Links to the national reports may be found on line at http://disarmament2.un.org/Committee1540/report.html (as of February 3, 2005).

[30] “National Strategy to Combat Weapons of Mass Destruction,” supra note 3, at 1.

[31] The analyses contained in this appendix are derived from the annotated text originally developed by LCDR Brad Kieserman USCG, to whom the author expresses his sincere appreciation.

[32] SUA = Party to SUA and/or the SUA Protocol of 1988.

[33] Panama-US PSI shipboarding agreement of May 12, 2004 may be found on line at http://www.state.gov/t/np/trty/32858.htm.

[34] Liberia-US PSI shipboarding agreement of February 11, 2004 may be found on line at http://www.state.gov/t/np/trty/32403.htm.

[35] Marshall Islands-US PSI shipboarding agreement of August 13, 2004 may be found on line at http://www/state/gov/t/np/trty/35237.htm.



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