Byers, Michael, The World Today
The high seas and international airspace are the nearest thing to the Wild West that exists today. Even if weapons of mass destruction or missiles are known to be in transit, it's often illegal to intercept them. Now there's a scheme to change all that and the first exercises are already under way. But there is a serious risk of greater international instability if America gets its way and the right to preemptive self-defence is included.
LAST DECEMBER, SPANISH MARINES, ACTING ON A request from the United States, boarded the So San, a North Korean freighter crossing the Arabian sea. Hidden under the bags of cement listed on the manifest were fifteen Scud missiles. But when Yemeni officials declared that they had purchased the missiles, the Spanish and US governments allowed the delivery to proceed. As former White House spokesman Ari Fleischer explained: 'We have looked at this matter thoroughly, and there is no provision under international law prohibiting Yemen from accepting delivery of missiles from North Korea.'
Neither Yemen nor North Korea has signed the Missile Technology Control Regime voluntary guidelines. Although Yemen has ratified the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, North Korea has not, and its scope does not extend to the content or destination of cargoes.
Yemen and a hundred and forty two other countries are parties to the 1982 United Nations Convention on the Law of the Sea, which stipulates that a ship may forcibly be boarded only if it is engaged in piracy or slavery, lacks a flag - a country of registration, or is registered in the state that wishes to board. This provision can be relied upon by non-parties - such as North Korea - as an accurate codification of an informal but universally applicable customary international rule that does not extend to allowing the seizure of materiel at sea.
The relative anarchy of the high seas provides a major opportunity for those who would traffic in the world's most dangerous weapons. Pyongyang, with its long-range missiles and active nuclear programme, is the supplier of greatest concern; potential buyers include Iran, Syria and a host of terrorist groups and other non-state actors.
Shipments by air pose similar problems. The airspace above a country's territory is subject to its jurisdiction, but venture offshore and the legal situation soon resembles that on the high seas: unless an aircraft is unregistered or has been hijacked, other states may not force it to land.
VERY, VERY UNHAPPY
Key members of the US administration were clearly rankled by having to release the So San. President George Bush himself was described as 'a very, very unhappy man.' The situation was all the more galling because it was an absence of international law, rather than existing rules, that was impinging on American interests. John Bolton, Under Secretary of State for Arms Control and International Security, was charged with fixing the legal problem. The result is the Proliferation Security Initiative - an effort to secure agreement among key countries that the interception of vessels and aircraft believed to be transporting 'weapons of mass destruction, their delivery systems, and related materials' can and should be allowed.
Announced by Bush three months ago in Krakow, the initiative includes eleven countries: Australia, Britain, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain and the United States. Three rounds of talks have already taken place in Madrid, Brisbane and Paris; a fourth is scheduled for London in the middle of the month. So far, states have agreed to exchange information concerning suspected proliferation, review and strengthen their national laws, and undertake a number of specific interdiction measures.
Apart from not trafficking in missiles and weapons of mass destruction themselves, these measures include: cooperating in the search and seizure of suspect vessels that are flying the flags of participating states; searching foreign vessels that enter their ports; denying transit rights to suspect aircraft; and requiring any such planes that do enter their airspace to land for inspection. …