Abstract
For four centuries, the law of the sea has rested on the principle of mare liberum or the freedom of the high seas. The oceans have traditionally been regarded as areas over which no state could claim dominion or sovereignty. Nations desirous of countering security threats have found that their efforts are curtailed by the traditional paradigm, partly because of the resistance from other states to permit further derogation. Several extant laws aim to contain the spread of CBRN (chemical, biological, radiological and nuclear) material through a variety of measures. Certain bilateral agreements between nations exist, but the foreign vessel still tends to remain sacrosanct primarily because of the United Nations Convention on the Law of the Sea. Normally, merchant vessels in the open seas may only be stopped and searched without flag state consent in rare circumstances. In light of the scourge of a terrorist CBRN attack hanging like a Damocles’ sword upon the world today, this article seeks to discern whether a state possesses the right to interdict and search vessels of another state suspected of ferrying CBRN material in international waters. Countering the kind of faceless non-state actor threats of the 21st Century would require curtailing some of these freedoms earlier enjoyed in the open seas. Better integration of maritime laws, such as the relevant sections of the UNSCR 1540, the PSI and the SUA 2005 with the UNCLOS is of the essence.
Highlights
Consisting of two sections, the first of which is mandatory and the second more of recommendations, [41] the International Ship and Port Facility Security (ISPS) Code was a brainchild of the International Maritime Organization (IMO) based in London, and the process of its creation was dramatically catalyzed after attacks such as 9/11 and on the French oil tanker MV Limburg
It would be apt to observe that the proliferation of maritime CBRNE material remains a serious challenge to international peace and security
The best bet today lies in sorting out the differences between the extant set of laws which remain at best nebulous and, at worst, totally mum about interdicting foreign vessels on the high seas and come out with a reasonable and effective denouement to this scourge of CBRNE proliferation
Summary
"Today, every inhabitant of this planet must contemplate the day when this planet may no longer be habitable. The heart of the problem lies in a multiplicity of laws (that perhaps can be more appropriately termed flaws) that have existed untouched for decades to regulate the world’s oceans and maintain decorum in these stormy seas – laws at times built upon age-old customs that had not adequately anticipated the catastrophic problems associated with transnational terrorism, and CBRNE terrorism at that Laws such as the United Nations Convention on the Law of the Sea (UNCLOS) uphold the sacrosanctity of a foreign vessel and maintain that it cannot be checked or stopped without express permission from the flag state. The recommendations extrapolated more generally should aid policy makers in the unenviable position of upholding national security to tackle the challenge of maritime CBRNE proliferation and channel limited resources more judiciously towards what matters
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