Legal Issues to Implement the SUA 2005 Protocol from Japanese Perspective (2)

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Legal Issues to Implement the SUA 2005 Protocol from Japanese Perspective (2)

著者 TSURUTA Jun

journal or

publication title

明治学院大学法学研究 = Meiji Gakuin law journal

volume 108

page range 13‑21

year 2020‑01‑24

URL http://hdl.handle.net/10723/00003808

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Legal Issues to Implement the SUA 2005 Protocol from Japanese Perspective （2）

TSURUTA Jun^⁂

3　Boarding Inspection of a Foreign Ship on the High Seas under the SUA 2005 Protocol

3.1　New boarding Inspection Procedures under the SUA 2005 Protocol 　Newly established ship boarding procedures are set out in Art. 8-2 para.5 of the SUA 2005 Protocol. This provision adopts boarding procedures based on the flag Stateʼs consent and does not grant the right of boarding inspections directly to State Parties to the Protocol. The procedures are as follows:

　A law enforcement officer of a State Party （“the requesting Party”） encountering a ship flying under or displaying a flag of other State Party （“the first Party”）, which is reasonably suspected to be involved in offenses stipulated in the Protocol, and the requesting Party desires to board the ship for an inspection, it shall request the first Party to confirm the nationality and, if so confirmed, upon the authorisation of the flag State, to board for appropriate measures, including stopping, boarding and searching the ship, its cargo and persons on board, and questioning the persons on board. The flag State may either authorize the

＊ TSURUTA Jun is an Associate Professor of International Law, Meijigakuin University, Tokyo, Japan. He may be contacted at [email protected]

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requesting Party to conduct boarding inspection or decline the request. The requesting Party may not board the ship without the explicit authorisation of the flag State^︵₁︶.

　The distinctive feature of the Protocol is that it stipulates the special procedures to board a suspect ship engaged in the illicit transportation of the WMDs for inspection. The Protocol establishes the procedures to obtain the consent of the flag State to stop and inspect the ship. Although several treaties conferred the right of visit by States other than the flag State against a foreign ship on the high seas, including verification, examination, inspection, boarding, searching and seizureing, the Protocol is established for States desiring to inspect a ship to confirm whether or not the ship is involved in offences which include an illicit transportation of the WMDs. It exactly corresponds the purpose of the PSI operations. This arguably indicated that the Protocol is intended to provide a legal basis for the PSI operations.

3.2　Setting Time Limits to the Flag State’s Response

　Art.8-2 para.5（d） to 5（e）, which allow a Party State to opt-in the time frame, are noteworthy. These paragraphs provide as follows:

　　（d）　 Upon or after depositing its instrument of ratification, acceptance, approval, or accession, a State Party may notify the Secretary-General that, with respect to ships flying its flag or displaying its mark of registry, the requesting Party is granted authorization to board and search the ship, its cargo, and persons on board, and to question the persons on board in order to locate and examine documentation of its nationality and determine if an offense set forth in Articles 3, 3-2, 3-3, or 3-4 has been, is being, or is about to be committed, if there is no

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Legal Issues to Implement the SUA 2005 Protocol from Japanese Perspective （2）

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response from the first Party within four hours of acknowledgement of receipt of a request to confirm nationality.

　　（e）　 Upon or after depositing its instrument of ratification, acceptance, approval, or accession, a State Party may notify the Secretary-General that, with respect to ships flying its flag or displaying its mark of registry, the requesting Party is authorized to board and search a ship, its cargo, and persons on board, and to question the persons on board in order to determine if an offense set forth in Articles 3, 3.2, 3.3, or 3.4 has been, is being, or is about to be committed.

　Para.5（d） and 5（e） is called the “4-hours rule” and the “zero-hour rule,”

respectively. A party State may notify the Secretary-General of the IMO that it intends to grant another State Party to exercise its rights over ships flying under the flag in advance. Therefore, the requesting Party does not have to wait more than four hours or at all to obtain the consent from the flag State for boarding inspections.

　These rules are often evaluated as urging the transformation of the flag State principle. Several treaties and agreements, under which a State Party may carry out boarding inspections, limit the flag State response within 4-hours, 2-hours, or upon the request. For example, the U.S. has entered into a bilateral boarding agreement with some flag-of-convenience States, namely Antigua and Barbuda, Bahamas, Belize, Croatia, Cyprus, Liberia, Malta, Marshall Islands, Mongolia, Panama, and St. Vincent and the Grenadines,etc. These agreements facilitate bilateral cooperation to prevent such shipments of the WMDs and other materials by establishing the special procedures to board and search such ships on the high seas. Under the agreements, if a vessel registered in the U.S. or the other Party is suspected of carrying proliferation-related cargo, either one of the

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Parties to this agreement can request of the other to confirm the nationality of the ship in question and, if needed, authorize the boarding, search, and possible detention of the ship and its cargo. These agreements are important steps in further operationalizing the PSI. In addition, the United Nations Agreement on Fishing on the High Seas stipulates that if there is doubt enough to believe that a fishing boat on the high seas has committed a serious violation of the fishing rules, any Party to the Agreement can inspect the boat without obtaining the consent of its flag State, which may be described as zero-hour rule.

3.3　Discussions at the IMO over Time Limits

　Setting time for authorization was highly controversial since it could undermine the exclusiveness of the flag Stateʼs enforcement jurisdiction.

Boarding a foreign-flagged ships on the high seas is an exceptional act and may only be done when permitted by treaty, international cusromary rule or ad hoc concent of the flag State and the shipʼs master. The right of visit condified in Art.

110 of the United Nations Law of the Sea exceptionally permits warships to board foreign ships if there are reasonable grounds to suspect piracy, slave trading, unauthorized broadcasting, or that the ship is stateless.

　At the 85^th session of the Legal Committee （LEG） of the IMO in August 2002, member States argued the proposal of the draft Protocol submitted by the U.S. as the leader State of the corresponding group which was established in the previous session. According to the draft, if law enforcement or other authorized officials of the requesting State had reasonable grounds to suspect that a ship or a person on board the ship was involved in the commission of an offense set forth in the draft, it could request to confirm the State whose flag the ship claimed, the nationality of the ship. When the State confirmed the nationality, the requesting

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State could further request to board and search the ship and ask questions the persons on board. Even if the requested State could not confirm the nationality of a ship in question, the State could authorize to board the ship. With respect to time limits, the default was advance authorisation after four hours. Therefore, the requesting State would be allowed to board the ship after four hours elapsed from the request even if an explicit consent of the flag State was not obtained or the requested State could not confirm the nationality. The draft proposal was not, however, supported widely because a number of concerns were expressed^︵₂︶. One concern was that if a time limit was applied abusively, it might derogate the flag State principle and the freedom of navigation, because only a limited number of Parties to the SUA Convention are capable of conducting ship inspections on the high seas.

　In February 2003, the Corresponding Group consolidated opinions sent to the group and added a new proposal to introduce “the zero-hour rule.” The proposal allowed a party State to notify the Secretary-General of the IMO its intention to confer the general authorization to other party State for boarding inspection of ships flying under its flag. The four hours rule was, meanwhile, considered necessary because a State should ensure to respond promptly, when requested to confirm the nationality and in order to enable swift boarding, searching and questioning, while minimizing the time for warships and other govermnet official ships to wait and see^︵₃︶.

　Some States considered setting time frame for the advance authorisation was essential and effective for prompt boarding inspection. Firstly, the time frame for the authorization had already been accepted in some bilateral and regional treaties as precedents^︵₄︶. The idea had been evolved for years, and it would be necessary to include such clause taking into account the purpose of the Protocol.

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Secondly, it was considered that it would eliminate the legal uncertainty of the requesting State what measures could be taken by the State against a suspect ship when there was no response from the flag State of the ship. A prompt response by the flag State would minimise chances for such ship to flee and attack, particularly, a suicide attack^︵₅︶. The grave nature of offences prescribed in the Protocol, those State considered fundamental to carr y out boarding inspections as swiftly as possible by setting time frame.

　On the other hand, some argued, none could legally assume ʻno responsesʼ of the flag State as the ʻtacit consent,ʼ since it would undermine the flag State principle^︵₆︶, and time to grant authorisation should be at discretion of the flag State^︵₇︶. Those believed that the general requirement to respond to a request ʻas immediately as possibleʼ would be sufficient and time frame would create impractical and unreasonable limit^︵₈︶. The maritime industrial organisations, such as the International Chamber of Shipping and the International Shipping Federation, expressed the view that the flag State principle should be maintained for the purpose of protection of crew members and efficient operation of ships;

boarding a ship by a foreign authority should be based upon clear and explicit consent by the flag State^︵₉︶. In addition, a number of States claimed that only the court of the flag State could grant the authorization to board a ship under their domestic laws^{︵ ₁₀ ︶}, and it was not practical to make decision within four hours, which would result in no response. Moreover, four hours would not be appropriate as a global treaty due to the global operation of ships and time differences between the flag States. The restriction may lead the inappropriate application of the provision, such as an unwarranted boarding.

　After all, the consensus was reached that party States to the Protocol may voluntarily waive their exclusiveness of the flag Stateʼ enforcement jurisdiction

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over ships flying under their flag and accept the time frame to respond a request for effective boarding inspections^︵₁₁︶. It was the result of the reconciliation between the necessity to stop and board a suspect ship promptly by setting time limits and the respect for the principle of flag State. A State retains the authority to grant a boarding inspection explicitly and on a case-by-case basis^︵₁₂︶. The time frame was set out in opt-in clauses, and a State could decide whether or not it would be subject to such a time frame to respond.

　Some experts expected that some flag-of-convenience States could opt-in these paragraphs of the Protocol^︵₁₃︶, since they had concluded bilateral agreements, which provide the time frame for authorization. There has been, however, not yet a party State to make such notification.

3.4　Significance of Adoption of Ship Boarding Provisions

　Ship boarding procedures under the Protocol is significant since it creates a framework for international cooperation to prevent and suppress unlawful acts at sea. In this context, the procedures have a couple of significant roles to play by providing a legal basis for a State to interdict a foreign ship.

　Firstly, this provision contributes effective implementation of the SUA Convention. The SUA Convention, before it was revised, focused merely on measures to deal with terrorism at sea ʻafterʼ it had occurred. It was intended to be effective in deterring the acts of terrorism at sea by requiring party States to choose either to extradite or to prosecute （aut dedere aut judicare） perpetrators and eliminating their non-punishment. Such deterrent effect would be realised only when the perpetrators of terrorism existed to be arrested, prosecuted, tried, and punished. It was not envisioned a suicide attack, in which a perpetrator of terrorism would not hesitate ending his life in the attack^︵₁₄︶. Thus, it was

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necessary to establish a system for ʻstoppingʼ a ship and ʻpreventingʼ a terrorist attack at sea.

　Secondly, this provision may overcome ʻthe side effectʼ of the flag State principle. It is often pointed out that the exclusiveness of the flag Stateʼs enforcement jurisdiction may hinder preventing terrorism at sea. The flag State principle is based upon the presumption that flag States would ʻeffectivelyʼ exercise jurisdiction over ships under their flag wherever they navigate. It is, however, often pointed out that a number of States, particularly flags-of- convenience States, do not effectively assert jurisdiction, whereas it is only the State that has legal authority to exercise enforcement jurisdiction on the high seas^︵₁₅︶. Only a limited number of States are willing to and capable of exercising enforcement jurisdiction in waters far away from their territory^︵₁₆︶. A boarding inspection by a State other than the flag State has a function to stop a suspect ship physically and prevent a terrorist attack at the scene.

　In sum, boarding procedures under the Protocol enable law enforcement and other authorized officials to take measures promptly against a ship flying under another party State, which may attempt terrorism at sea, while ensuring consistency with the flag State principle, in which only the flag State exercises over a foreign ship on the high seas.

（ 1 ）　Roach, J. A., 2004, Initiatives to Enhance Maritime Security at Sea, Marine Policy, Vol. 28. pp. 46-49.

（ 2 ）　IMO Doc. LEG85/11. para. 89 and 90.

（ 3 ）　IMO Doc. LEG86/5. Annex 1, Footnote xxx.

（ 4 ）　IMO Doc. LEG86/15, para. 67.

（ 5 ）　H.E. José L. J., 2003, Protection of Foreign Ships against Piracy and Terrorism at Sea: Legal Aspects, The International Journal of Marine & Coastal Law, Vol. 18, p.

396., MacDonald, S. D., 2013, The SUA 2005 Protocol: A Critical Reflection, The 20

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International Journal of Marine & Coastal Law, Vol. 28, pp. 493-494.

（ 6 ）　IMO Doc. LEG88/13, para. 73.

（ 7 ）　IMO Doc. LEG87/17. Annex 3, Footnote 23.

（ 8 ）　IMO Doc. LEG89/16, para. 5.

（ 9 ）　IMO Doc. LEG88/3/3 and LEG88/3/4.

（10）　Ibid. para. 48.

（11）　IMO Doc. LEG89/16, paras. 46-47 and LEG90/15 paras. 83-89.

（12）　IMO Doc. LEG89/16, paras. 46-47 and LEG90/15 para. 87.

（13）　Richardson, M., 2006. The Proliferation Security Initiative （PSI）: An Assessment of its Strength and Weakness, with Some Proposals for Shaping its Future, Institute of Southeast Asian Studies, p. 15.

（14）　Mellor, J.S.C., 2002, Missing the Boat: The Legal and Practical Problems of the Prevention of Maritime Terrorism, American University of International Law Review, Vol. 18. p. 384., Asada, M., 2005, The Security Council Resolution 1540 and International Legislation―New Threats of Terrorism Using Weapons of Mass Destruction （in Japanese）, The Kokusai Mondai （the International Affairs）, October 2005.

p. 44., Wolfrum, R., 2006, “Fighting Terrorism at Sea: Options and Limitations under International Law” available at https://www.itlos.org/fileadmin/itlos/documents/

statements_of_president/wolfrum/doherty_lectire_130406_eng.pdf （accessed on September 29, 2019）.

（15）　Marcopoulos, A. J., 2007, Flags of Terror: An Argument for Rethinking Maritime Security Policy Regarding Flags of Convenience, Tulane Maritime Law Journal, Vol.

32, pp. 277-312.

（16）　Wolfrum further argued that if terrorists hijack a ship to use it as a weapon, the flag State of the ship has a duty to interfere with the situation taking into account that the U.N. Security Council adopted a resolution based on the Chapter VII of the Charter. Therefore, if the flag State cannot respond to the situation by itself, it doesnʼt only have an option to seek assistance from other States but also has a duty to do so. See Wolfrum 2006, supra note 14.

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