Security Challenges Under the Law of the Sea and UNCLOS
Modern Challenges of Security
Every country shall at its perusal take appropriate measures to protect its integrity and sovereignty. With the emergence of the right of way for other states, certain security threats may be faced by the coastal states. It is believed that in order to protect its sovereignty, the coastal state may prevent a vessel or submarine from entering and passing through its territorial area if there is presumption that the ship is carrying hazardous material, provided that the suspension must be temporary.
On June 23, 1995, the territorial waters of Mururoa were closed off by France. Then again on July 10, 2010 France suspended Rainbow Warrior II and detained and arrested its crew[1]. However, seizure of the Rainbow Warrior by France fell outside the ambit of Article 25, Paragraph 3 of United Nations Convention on the Law of the Sea (UNCLOS) which requires the coastal state to order the seizure of the ship for a temporary period of time if such suspension is essential for the protection of security. However, the absence of global uniformity in state practice questions the existence of a clear cut customary rule to this effect.[2]
Security Issues
An important issue which needs to be addressed relates to security threats while granting the right of innocent passage to states, whereby they may conceal their identity and appear to be a merchant ship, whereas in reality a submarine might be involved in the transportation of hazardous material to dangerously impact the sovereignty and integrity of the coastal state. According to UNCLOS,
“…any act of propaganda aimed at affecting the defense or security of the coastal State, its passage is not innocent.”[3]
In a matter between South and North Korea, circumstances were such that South Korea had to increase security on its border on the side of the Cheju Strait, the passage used by North Korea. South Korea was of the view that providing a passage to North Korea was a serious threat to its own integrity and security. The fact that they had to send four vessels behind North Korean ships also proved that there were ulterior motives behind the actions of North Korea while claiming and using Cheju Strait. The question was whether it was justified that on the basis of security threats one nation was singling out another while allowing all other states to use the same passage without any constraint. For the two Korean states, the exclusion lasted for more than half a century which was in clear violation of the provision of UNCLOS which stated that the coastal state may for a “temporary” time period suspend the right of passage if the deferment is essential for the sovereignty and integrity of the state.[4]
One of the most modern challenges of security not mentioned under UNCLOS was the transportation of weapons of mass destruction (WMDs). Neither had the illegal transportation of WMDs and other such material been universally condemned, not had it been addressed in the law of the sea[5]. To cater to this issue, a Security Council Resolution has led to the first treaty declaring the transportation of WMDs unlawful and has created new laws for countries passing through littoral states to observe specific requirements so that they pose no threat to the sovereignty and integrity of a state.[6] Vessels would be criminalized and the crew would be arrested if involved in carrying illegal material.[7]
In the Enrica Lexie incident[8], Italian marines, while on the coast of India, opened fire and killed an Indian fisher. This eventually led to limiting the powers of vessel protection details (VPDs) and clarifying their status under international law.
Preventive Measures
With terrorism becoming the biggest challenge faced by states following the attacks in 2001, a proliferation security initiative (PSI) was adopted by the United Nations to prevent the transportation of WMDs and other illegal weapons through the sea.[9]
Analysis
UNCLOS is not exhaustive in dealing with the modern challenges of security. Its provisions also have certain ambiguities such as a territorial state deeming it necessary to adopt all appropriate and effective measures to protect its sovereignty and control a vessel deemed to be carrying hazardous material. This is the very reason South Korea used force against North Korea in order to prevent vessels from passing through their channel, owing to the fact that they were not enjoying good diplomatic relations with each other.
Recommendation
Many measures have been taken in the form of bilateral and multilateral treaties to impose the will of coastal states so that they can protect their sovereignty and integrity with all possible means. Different screening procedures should be followed and coastal states may allow other states to navigate freely after they pass these screening tests. Singapore became the first country to sign a treaty with the US[10] on 19 September, 2002 to allow them to check their cargo vessels so that the US could ensure that no vessel was being used for illicit or unlawful purposes.
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Bibliography and References
Articles
Rüdiger Wolfrum, INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA STATEMENT PRESIDENT OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, (2006).
Books
David Harris, Cases and material on International law 321-330 (7thed.)2011
Tanaka youshifumi, International law of the sea, 383 (2nd ed.2015)
Cases
Nicaragua v united states of America, 1986.ICJ. 14(America).
Corfu channel case, 1949 ICJ.( Albania, United kingdom, Ireland).
Conventions
UNCLOS, Article 25
Websites
https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1024&context=lps_papershttps://link.springer.com/chapter/10.1007/978-3-319-51274-7_12
http://www.seerecht.org/wegele_in/iptext.htm
[1] Stephen Kong, The right of innocent passage: A case study on two koreas, 2015 heinonline.
[2] Kari Hakappa, Oxford public international law innocent passage, 5 (2013).
[3] UNCLOS, Article 19.
[4] UNCLOS, Article 25.
[5] Pirjo Kleemola-Juntunen,The Right of Innocent Passage: The Challenge of the Proliferation Security Initiative and the Implications for the Territorial Waters of the Åland Islands (2017).
[6] Ibid 242-243
[7] Rüdiger Wolfrum, INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA STATEMENT PRESIDENT OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, (2006).
[8]Simon O. Williams, Private Maritime Security, Innocent Passage, and Prior Notification: An Assessment December 2014.
[9] Ibid.
[10] Rüdiger Wolfrum ,INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA STATEMENT PRESIDENT OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA
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