WMD security initiative could endanger sea trade

Hasjim Djalal, Observer of Maritime Affiairs, Jakarta

In September 2003, the United States announced a new initiative in security affairs to prevent the proliferation of weapons of mass destruction (WMD), their delivery systems and related materials worldwide. The WMD could be biological, chemical or nuclear, and their delivery systems could be by land, sea or air.

The U.S. proliferation security initiative (PSI), supported by its partners in the "coalition of the willing", was motivated by the global fight against terrorism and the fear that the WMD could fall into the hands of terrorists or so-called "rogue states", or the so-called states of "proliferation concerns" such as North Korea and other states suspected of supporting terrorism.

So far, it is understood that the U.S. has gathered support from 15 or 16 of its allies and friends. In Southeast Asia, Australia and Singapore are already participants in the initiative, while Malaysia seems not to be so enthusiastic about it. In East Asia, while Japan indicated support for the initiative, South Korea and China did not, at least so far. In the Indian Ocean area, India also seemed to be reluctant to join the initiative.

The initiative, if implemented, may fundamentally affect the development of the law of the sea and maritime issues. It is understood that the initiative will commit its participants to "undertake effective measures, either alone or in concert with other states" to interdict the transfer or transport of WMD, their delivery systems and related materials "to and from states and non-state actors of proliferation concern".

Those measures would include commitment "not to transport or assist in the transport" of "any of those materials and not to allow any persons subject to their jurisdiction to do so".

What is more dramatic is that the participants, "at their own initiative" or at the request by "another state", could "board and search any vessel flying their flag in their internal waters or territorial seas, or areas beyond the territorial seas of any other states" which are suspected of transporting such materials, and "to seize such cargoes".

It is not very clear here what is the meaning of "any vessel flying their flag", whether it means a vessel flying the flag of the requesting state or otherwise. If this principle is implemented, PSI participants could also "board, search and seize" the cargo of vessels of other countries in the economic zone or on the high seas beyond their territorial seas.

Similar principles are also applicable to aircraft that are suspected of carrying WMD that are transiting or overflying the airspace of those who have signed on to the initiative. Those overflying aircraft could be asked to land for inspection and seizure of the suspected WMD materials, if found.

During an informal discussion of this matter at the Conference on Maritime Security in East Asia in Honolulu last month (Jan. 18 to Jan. 20), while various efforts to counter the spread of WMD were recognized, there were concerns, however, that the PSI might negatively affect the freedom of the sea, particularly if the "board, search and seizure" of vessels and cargo was carried out in the Economic Zone (EEZ) of other countries or on the high seas beyond the 200-mile EEZ by the participants of the PSI against vessels belonging to non-PSI countries.

It was suggested that freedom of navigation on the high seas as well as the flow of regional and international trade could be affected.

Moreover, if there are countries in a geographical region that are members of the PSI while others are not, the initiative could create tension between the participants of the PSI and non- participants, because the PSI participants may want to exercise the initiative against vessels flying the flag of non- participants navigating in its EEZ or on the high seas.

It is understood, however, that the various principles enunciated by the U.S. in the PSI were not or not yet in the form of a treaty, but more or less in the form of "code" or "commitment" to take action by its participants.

The principle of "boarding and searching" foreign vessels by another vessel flying a different flag on the high seas or EEZ is already increasingly being used in the development of the law of the sea and maritime issues. Article 21 of the UN Agreement (1995) implementing the provisions of UNCLOS (article 63 and 64) authorizes "the boarding and inspection" of fishing vessels on the high seas by law enforcement officers of non-flag states, if such fishing vessels violate regional conservation and management measures adopted by the regional organization concerned.

Article 26 of the Honolulu Convention (2000) for the West and Central Pacific Ocean Region, in implementing the 1995 UN Agreement, also authorizes such interdiction in the defined area of the West and Central Pacific Ocean. While the 1995 Agreement is already in force, the Honolulu Convention of 2000 is expected to come into force in June 2004.

So, the principle of interdiction on the high seas is already becoming part of international law. But this principle should be adopted through regional arrangement or organization, in the sense that if such interdiction takes place in a region, it should be subjected to regional arrangement applicable in the region or sub-region.

Otherwise, it may be regarded as a violation of international law, a violation of the principles of the freedom of the sea and could even be regarded as an affront by countries outside the region to countries inside the region, particularly if the countries outside the region are much more powerful than the countries in the region.

The regional initiative in this matter could include, as necessary, countries outside the region that have interest in the prevention of the proliferation of WMD; just as the countries outside of the region in the 1995 UN Agreement and the 2000 Honolulu Convention can also participate in the regional fisheries conservation and management measures if they have an interest in such measures, either as far distant fishing nations or as "administrators" of certain South Pacific islands or otherwise.

The PSI issue is very important for Indonesia, particularly because Indonesia lies between two major oceans and surrounded by several seas that are likely to be used for the transport of those materials.

Equally, Indonesia lies between two continents between which its seas and airspace are heavily used by sea and air transportation between those continents and oceans. Moreover, as indicated above, Australia and Singapore are already participants in the initiative.

Indonesia, while actively participating in the global efforts to fight terrorism, including in the effort to prevent the spread of WMD to its country, its region, as well as globally, has certain interests in supporting the initiative.

Yet, being a very large archipelagic country, having more than three million km2 of archipelagic waters and more than five million km2 of airspace, certainly it would not like to see the participants of the PSI or its neighbors exercise the initiative to board, search and seize vessels suspected of carrying WMD in its archipelagic waters, territorial seas or economic zone, or in its airspace, except through regional arrangement in which Indonesia is a participant.